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
r e q u i r e m e n t s o f t h e r u l e o f l aw
True law is both general and equal
Generality or abstractness is a necessary feature of law. Hayek
had made this clear particularly by distinguishing in Chapter 10
between laws and commands. A command is an order to someone
to take a particular action or refrain from it; and it presupposes
someone who has issued the command. A law, by contrast, ‘is
directed to unknown people,’ and it speaks in an impersonal
voice. It abstracts ‘from all particular circumstances of time and
place’ and ‘refers only to such conditions as may occur anywhere
and at any time.’ Hayek grants that these distinctions are not
hard and fast, since laws ‘shade gradually into commands as their
content becomes more specific’ (149–50).
The principle of generality does not, however, encompass
the requirement that ‘any law should apply equally to all.’ A law
might be general and yet make different provisions for different
classes of persons and, where classes are defined narrowly, implicitly
favour specific individuals. Complete equality before the law
means ‘that no attribute belonging to some individuals but not to
others should alter their position under the law’ (1955: 36). Hayek
insists that we should strive towards this goal, but grants that it ‘is
probably both unattainable and undesirable’ (ibid.: 36). He does
not object in principle to laws that single out a particular group,
e.g. women, or the blind, or people above a certain age, so long as
the legitimacy of the distinction is acknowledged by those inside
the group as well as those outside it. Yet ideally, equality of the
law aims to equally improve ‘the chances of yet unknown persons’
and is ‘incompatible with benefiting or harming known persons
in a predictable manner’ (209–10, 153–5).
Hayek denies that justice is an attribute of law, independent
of its generality, certainty and equality. If a law ‘confines itself to
regulating the relations between different persons and does not
interfere with the purely private concerns of an individual,’ we
have no test for its compatibility with a reign of freedom ‘other
than its generality and equality’ (210). Here, as in Chapter 6,
Hayek interprets the principle of equality to mean that the law
should treat people alike in spite of inequalities that arise from
nature and from nurture. Equality before the law increases the
de facto inequalities among individuals, but these are advantageous
to a free society. Also, the Rule of Law is at odds with the
quest for distributive justice. Those who pursue it ‘will in practice
find themselves obstructed at every move by the rule of law.’
Distributive justice requires government to decide what different
individuals will receive or reward them according to someone’s
conception of their merit. The Rule of Law demands, however,
that individuals be treated equally under general laws, without
regard to their particular qualities or circumstances (232).
The laws consist of ‘general rules that apply equally to everybody.’
It follows that those persons who enact and apply the laws
must also be subject to them. This requirement – that the laws
apply equally to those who govern as well as to any private person
– reduces the risk that the state and its agents will act oppressively
(210).
The Rule of Law requires an independent judiciary
Hayek hesitates to make the ‘separation of powers’ a blanket
requirement of the Rule of Law, since this doctrine has a variety
of meanings, some of which Hayek disapproves of. He does insist,
however, that the judiciary should constitute ‘a separate power’
from the legislature. The Rule of Law means that ‘the laying-down
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