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
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
the ideas of liberty advanced in preceding decades ‘had become
part of an established tradition.’ Hayek’s account of seventeenthcentury
England details a massive and rapid shift in opinion
regarding the kind of government that could legitimately claim
the people’s obedience. This is significant, because ‘power is
ultimately not a physical fact but a state of opinion which makes
people obey’ (181). Hayek further observes that ‘a group of men
can form a society capable of making laws because they already
share common beliefs which make discussion and persuasion
possible and to which the articulated rules must conform in
order to be accepted as legitimate’ (181). The prevalence of such
common beliefs explains how Parliament, in the Glorious Revolution
of 1688, could with little bloodshed depose the ruling
monarch and install a new one. The emergent ideas of liberty
subsequently became part of the doctrine of the victorious Whig
party. John Locke’s major achievement was to codify Whig
doctrine, thereby setting forth the practical principles that should,
by common agreement, thereafter control government’s powers
(169–71). While Hayek is largely critical of Locke’s speculations on
the foundations of government, he applauds his ‘codification’ of
the accepted political doctrine.
The first half of the eighteenth century was the main period
of consolidation, during which time the ideal of the Rule of Law
‘progressively penetrated everyday practice.’ Most of the principles
for which Englishmen of the previous century had fought
were slowly but steadily extended. Indeed, ‘the principles themselves
ceased to be a matter of [partisan] dispute;’ and the Tories
came fully to accept them (171–2). Later in the century, ‘coherent
expositions’ of English ideals were put forward, chiefly by Hume,
Burke and William Paley. Other leading writers, including Adam
Smith and William Blackstone, took these ideals for granted, but
largely refrained from stating them explicitly (172–4).
England’s major contribution to the evolution of the principles
of freedom ended with the close of the eighteenth century.
Its achievements were mostly preserved beyond the nineteenth
century, but there was little further development of underlying
ideals, even in the writings of historians such as T. B. Macaulay
and of economists in the Smithian tradition. There emerged a
new, constructivist liberalism, often guided by the ideals of the
French Revolution, which scorned Britain’s received constitution
and proposed ‘to remake the whole of her law and institutions on
rational principles.’ Here Hayek mentions Bentham and the Utilitarians
as well as the moralist and radical pamphleteer Richard
Price. From this point forward the English ideal of individual
liberty was progressively displaced, even in Great Britain, by ‘the
essentially French concept of political liberty’ (174–5).
America’s contribution
The colonists who settled America brought with them the principles
of individual freedom that had developed in England,
including ‘the conception that no power should be arbitrary and
that all power should be limited by higher law’ (177). What Americans
added was an insistence on a fixed constitution, a written
document that recognises fundamental principles and organises
government around them. This conviction – that the protection
of freedom requires a written constitution – was rooted in
America’s early experience with compacts and charters. It found
expression in the various state constitutions that were established
during and after the Revolution, and it stimulated efforts to draft
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