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
of new general rules’ must be separate from ‘their application
to particular cases.’ These two functions ‘must be performed
sep arately by two co-ordinated bodies before it can be determined
whether coercion is to be used in a particular case.’ In practice,
this requires ‘independent judges who are not concerned with any
temporary ends of government’ (210–11). These judges ‘are bound
by nothing but the law and secured against all pressure by irremovability
and similar safeguards’ (1955: 37). This arrangement
helps to ensure that rules are made because of their general significance
and not to fit particular instances.
Judicial decision-making, as Hayek understands it, looks
beyond particular statutes and their intent. In fact, the judge
has no concern with ‘the hidden intentions of the maker of the
rules’ (ibid.: 37). The judge’s task is ‘to discover the implications
contained in the spirit of the whole system of valid rules of law.’
When necessary, he expresses as a general rule ‘what was not
explicitly stated previously in a court of law or by the legislator’
(212). Clearly a great deal of discernment is required to grasp
the spirit of the laws, to determine its implications for the case
at hand, and to express this as a general rule. The judge makes
explicit much that the law itself leaves unstated; and inevitably
‘certain general conceptions’ will enter into the judge’s interpretation
of the law. Even so, Hayek measures judicial interpretation by
an objective standard, namely ‘what the rules as they have been
promulgated must mean to an impartial observer’ (1955: 37).
The separation-of-powers doctrine, in some formulations,
prohibits the general legislature from delegating the rule-making
function to other bodies; but Hayek rejects this limitation. From
the standpoint of the Rule of Law, he sees nothing wrong with
delegating the power of making rules ‘to local legislative bodies,
such as provincial assemblies or municipal councils’ or even in
some instances to ‘some non-elective authority,’ so long as this
authority announces these rules prior to their application and
is made to adhere to them. What Hayek objects to in modern
practice is not delegating legislation, but giving authorities ‘power
to wield coercion without rule’ and expecting the courts to accept
the exercise of such power unquestioningly (1960: 211–12; 1955:
38–9).
The executive, in coercing private citizens, is subject to
legislative rules and to judicial review
The primary function of the government or executive is to protect
the individual against coercion by others and thus to safeguard for
each individual a secure private sphere. To this end the executive
enjoys a monopoly of coercive power. This function is to be distinguished
from the executive’s administrative or policy function,
which is not inherently coercive, but may become so under a
regime of central planning. Hayek insists that with the rise of
the modern bureaucratic state, individual liberty is now mainly
threatened by administrative power (see 202). Thus it is hardly
surprising that The Constitution of Liberty devotes far more attention
to administration than to lawmaking or judging.
Deciding where the executive stands, in relation to the legislature
and to the courts, is, for Hayek, a major problem that is
addressed throughout Parts II and III, especially when matters of
‘discretion’ and ‘policy’ are discussed. Hayek regards the legislature
and the courts as distinct and separate powers, but he denies
that this is the case with the executive. The decisive consideration
here is not the executive’s monopoly of coercion, which arguably
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