Hayek's The Constitution of Liberty - Institute of Economic Affairs

h ay e k ’ s t h e c o n s t i t u t i o n o f l i b e r t y
t h e r u l e o f l aw a n d i t s d e t r a c t o r s
status of this principle, but clearly it must be understood in light
of his foundational teachings in Part I. Hayek has emphasised that
‘we can never synthetically construct a new body of moral rules’
(63). We must accept much of ‘the undirected and spontaneously
grown’ (69). Human civilisation ‘has a life of its own,’ and
‘all our efforts to improve things must operate within a working
whole which we cannot entirely control.’ Hayek’s ideal or metalegal
principle must be viewed in these terms: its purpose is not
to construct a new body of moral rules, but to identify those rules
that have favoured the progress of civilisation; and in this respect
it has a foundation or ground.
Progress is favoured chiefly by freedom. Progress cannot be
designed, and its direction cannot be anticipated. Our best hope
of improving things is to protect individual freedom. The Rule of
Law is strictly about freedom. It says nothing about the ends that
individuals should pursue or about the long-term consequences of
human action.
According to Hayek, the evolutionary process selects out
moral rules that favour a society’s survival or flourishing. In the
second Cairo Lecture, he portrays the ideal of the Rule of Law, as it
developed in nineteenth-century Germany, in such terms:
Like most of the governing ideas of any age, it was held
not because its rationale was fully understood, but rather
because the success of the groups and civilizations who had
held it had brought it [the Rule of Law] to dominance. It
had become part of that sense of justice which a process of
natural selection among societies produces by making those
flourish which have evolved beliefs most conductive to the
best use of the capacities of their members. (1955: 26)
The point to be underscored is this: with hindsight we
recognise that adherence to the Rule of Law has promoted such
social ends as survival, success or flourishing; but since the future
is open and uncertain, Hayek seldom justifies his ideal in terms of
its likely consequences. The Rule of Law is strictly about freedom.
It is constructed from evolved moral rules that safeguard liberty.
Its aim is to protect individual freedom here and now and to open
up the possibility of human development.
The Rule of Law is an outgrowth of Western civilisation, but
Hayek puts it forward as a universal ideal and not one just for
Western nations. He provides no clear explanation as to how a
particular ideal becomes a standard for all, but he does suggest
two possibilities: the Rule of Law offers a pattern for nations
that aspire to match the creative achievements of the West; or
since modernity has produced a universal civilisation, shaped by
Western ideas and institutions, the West’s guiding ideal is now
the standard for civilisation as such.
Detractors of the Rule of Law
Chapter 16 examines ‘The Decline of the Law.’ This decline began
in Germany soon after institutions designed to secure the Rule
of Law were completed. Political and theoretical views emerged
that strongly opposed limiting authority by rules of law. They
sought ‘to give the organized forces of government greater power
to shape social relations deliberately according to some ideal of
social justice’ (235). Opinion soon turned against free institutions,
making them incapable of serving their intended aims.
Chapter 16 is mostly about legal theories that rejected or
redefined the Rule of Law. They originated in Germany, but soon
came to have wide influence in other Western countries, such as
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