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

o r i g i n s a n d d e v e l o p m e n t o f t h e r u l e o f l aw
7 ORIGINS AND DEVELOPMENT OF THE
RULE OF LAW (Chapters 11, 12, 13)
Hayek devotes three chapters to the origins of the Rule of
Law and to its institutional and conceptual development. These
chapters focus in turn on England during the seventeenth and
eighteenth centuries, on America during its founding period,
and on Germany between 1800 and the 1870s. Hayek’s emphasis
throughout is on the growth of institutions that embody aspects
of the Rule of Law and on ideas that convey its basic principles.
This fits with his intention to show that the Rule of Law, as an
ideal, is not simply a rational construction, but the result of an
evolutionary process, where emerging beliefs and unintended
consequences made possible an articulation of the principles of
individual freedom. The contributions of England, America and
Germany are presented as parts of a single process of growth or
as ‘stages in a continuous development’ (202). Each nation added
something distinctive during its shining moment. There is no
chapter on France, since Hayek judges that political and intellectual
developments there, after the Revolution, were largely unfavourable
to his ideal (194–6).
English origins
When and where did individual freedom originate? Contrary to
some interpretations, Hayek insists that such freedom was known
to the ancients, particularly in Athens at the time of its greatness
and in late republican Rome. In fact, what classical authors said
about individual freedom and its legal protections would greatly
influence modern thought (164–7). Hayek’s interest, however, is
not in the ancient world, but in the modern origins of individual
freedom, understood both as the general condition of a people
and as an ideal.
The modern evolution of the Rule of Law began in seventeenth-century
England. This evolution, as traced by Hayek,
involves both events and ideas, with events and their unforeseen
consequences taking priority. Thus he observes that English
liberty ‘appeared first, as it probably always does, as a by-product
of a struggle for power rather than as the result of deliberate aim’
(162). Hayek refers here to the great struggle between king and
Parliament that began soon after Elizabeth’s death in 1603 and
convulsed seventeenth-century England; the liberty of the individual
‘emerged [from it] as a by-product’ (167). The conflict
with Parliament was provoked by the economic policies of Elizabeth’s
successors, particularly their attempts to establish industrial
monopolies and to impose severe regulations on economic
activity. These policies led to demands for ‘equal laws for all
citizens’ and for adherence to ‘the certain rule of law,’ as distinguished
from uncertain and arbitrary government. Ways to limit
royal discretion and bring the king under the law were discussed
extensively and continuously throughout the Civil War. From
this discussion there gradually emerged all the political ideals
‘which were thenceforth to govern English political evolution’
(168).
The evolutionary process that Hayek is describing was highly
compressed. By 1660, when the Stuart monarchy was restored,
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