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
a constitution for the USA. Hayek calls this belief and practice
‘constitutionalism;’ and he regards constitutionalism as America’s
distinctive contribution to the growth of the Rule of Law.
American constitutionalism presents something of a challenge
to Hayek’s outlook. The federal Constitution, like the various state
constitutions that were formed after the Revolution, arose from
an effort deliberately to construct a basic framework of laws and
also to achieve something unprecedented in the annals of government.
In this respect it can be viewed as both constructivist and
anti-traditional. Hayek acknowledges that the American founders
were, in a sense, ‘guided by a spirit of rationalism, a desire for
deliberate construction and pragmatic procedure closer to what
we have called the “French tradition” than to the “British.” ’
Furthermore, they exhibited ‘a general suspicion of tradition and
an exuberant pride in the fact that the new structure was entirely
of their own making.’
Hayek insists, however, that the American founders were
‘essentially mistaken’ as to what they were achieving. The governmental
framework that ultimately emerged from the federal
Constitution was different ‘from any clearly foreseen structure,’
and ‘much of the outcome was due to historical accident or
the application of inherited principles to a new situation.’ The
vaunted ‘new discoveries’ of the Constitution either ‘resulted from
the application of traditional principles to particular problems’
or else ‘emerged as only dimly perceived consequences of general
ideas’ (183–4).
American constitutionalism, besides requiring a fixed and
written document, incorporated numerous ways of limiting government
and making it conform to general rules. In this connection
Hayek discusses the appeal to higher law, the division of powers
both among the branches of the federal government and between
government and the states, the insistence on the inviolable rights
of individuals, and the practice of judicial review. A thread running
through the entire discussion is the problem of how, in popular
government, majorities can be kept within safe limits.
The Americans were much more concerned than the English
had been with limiting the power of representative legislatures.
Partly this was because the colonists, in the decade leading up to
the Revolution, had been forced to resist Parliament’s claim to
power over them; but more fundamentally it reflected awareness
that, in a democratic society, majority rule could endanger liberty.
The newly formed state legislatures were frequently criticised at
the time for exceeding their proper powers.
Americans embraced the long-standing view that ordinary
legislation must conform to a ‘higher law;’ and they insisted on
codifying higher law principles in a written document, so as to
make them explicit and enforceable. This means that particular
laws enacted by the legislature are just only if they conform to
principles embodied in the Constitution. Requiring conformity to
general principles deters the legislature from sacrificing long-term
advantages to immediate aims and from conferring privileges or
imposing penalties on individuals (179–80).
Hayek’s view of higher law differs substantially from the way
the Americans themselves understood it. By his interpretation,
higher law is not rooted in divine will, or nature, or reason, as
Americans had generally believed. Hayek reminds us that reason
always ‘moves within a non-rational framework of beliefs and
institutions.’ Higher law, for any society, consists of principles
implicit in prevailing beliefs and opinions. The decisive consideration
is whether a people, regardless of how they understand the
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