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

e q u i r e m e n t s o f t h e r u l e o f l aw
8 REQUIREMENTS OF THE RULE OF LAW
(Chapter 14)
The Rule of Law defines the attributes of ‘true law’ and also
identifies the institutions that are required to safeguard individual
liberty. Hayek enumerates these attributes and safeguards
in both the Cairo Lectures and The Constitution of Liberty (Chapter
14), but with some important variations. This enumeration is
not presented as a rational system, but rather as ‘a complex of
doctrines which have been formulated at different times and
which are connected only by serving the same end’ (1955: 34). This
view fits Hayek’s claim that his ‘ideal’ is a product of undirected
growth rather than logical construction.
True law promotes freedom by safeguarding the private
sphere
The end served by the Rule of Law, broadly stated, is to promote
liberty by making individuals secure against governmental
encroachments on the private sphere. More specifically, it ‘is to
limit coercion by the power of the state to instances where it is
explicitly required by general abstract rules which have been
announced beforehand and which [are] applied equally to all
people, and refer to circumstances known to them’ (ibid.: 34; cf.
1960: 208). Government coerces individuals chiefly by punishing
them. Under the Rule of Law, it can ‘infringe a person’s protected
private sphere only as punishment for breaking an announced
general rule’ (206). Here and elsewhere, Hayek distinguishes
sharply between general laws that the ordinary citizen must
observe and those acts of legislative authority, which amount to
orders, that instruct servants of the state ‘concerning the manner
in which they are to direct the apparatus of government and the
means which are at their disposal’ (207). Government has broad
discretion to command how its particular resources will be used,
but it cannot order about the private individual as if he were a
mere governmental resource.
True law is known and certain
The laws must be made known or promulgated, since they shape
the environment in which we plan our actions. If individuals
know what rules they can count on, they are better able to predict
the outcome of their actions, determine their responsibilities, and
use their knowledge effectively. Known and certain laws are vital
to economic life; and they promote the spontaneous growth of
social order. They enable people to ‘foresee with a high degree of
confidence what collaboration they can expect from others,’ thus
facilitating the ‘mutual adjustment of individuals’ that produces
order spontaneously. Hayek emphasises that the law’s relative
certainty makes court decisions predictable, thus reducing litigation
and enabling a free society to run more smoothly and efficiently.
These considerations lead him to conclude that ‘the task
of the lawgiver is not to set up a particular order but merely to
create conditions in which an orderly arrangement can establish
and ever renew itself’ (208–9; cf. 159–61).
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