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
Russia, the UK and the USA. We need only consider what Hayek
says about legal positivism.
Legal positivism developed in direct opposition to the natural
law tradition. Hayek, of course, has his own objections to natural
law theory, but shares its view that a community’s laws must
be measured by a higher standard – one that is ‘found’ and not
simply created or willed. For legal positivism, ‘law by definition
consists exclusively of deliberate commands of a human will;’ and
no higher standard exists by which to measure these commands.
The implication is that there can be no limits to the legislator’s
will. Such rules as the state authority enacts must be accepted
as legal, so that the distinction between ‘legal’ enactments and
‘illegal’ ones ceases to be valid.
Legal positivism came to be widely accepted after World
War I. Its most consistent and influential formulation is to be
found in Hans Kelsen’s ‘pure theory of law.’ Kelsen embraced and
articulated legal positivism’s far-reaching implications: what the
legislator wills or commands is law; this will is unlimited; there are
no fundamental liberties that the legislator is bound to respect;
and a despotic state can have the character of a legal order. By the
end of the 1920s, legal positivism had conquered German opinion
and was ‘spreading rapidly to the rest of the world,’ helping to
justify the rise of despotism in Hitler’s Germany, Fascist Italy and
Soviet Russia (238–9; 1955: 22).
From the outset legal positivism opposed ‘those meta-legal
principles which underlie the ideal of the rule of law’ – principles
that it dismissed as ‘metaphysical superstition.’ More fundamentally,
it redefined the concept, so that any state ‘whose whole
activity takes place on the basis of laws and in legal form’ is in
conformity with the Rule of Law (238). The Rule of Law came to
mean nothing more than ‘the demand for legality, the requirement
of a legal foundation for any act of the state.’ It thereby
‘ceased to have any significance as a guarantee of individual
freedom, since any oppression, however arbitrary or discriminatory,
could be legalized by a law authorizing an authority to act
in such a manner’ (1955: 27). Hayek does detect some signs of a
reaction against legal positivism and similar doctrines (247–9),
but there remains an urgent need to clarify and restore the Rule
of Law.
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