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
makes it more powerful than the legislature and the courts, but
its dependence on the other powers. The legislature and the judiciary
are independent of each other in that one formulates rules
and the other interprets them. The executive, however, is bound
in its coercive actions ‘by rules which prescribe not only when
and where it may use coercion but also in what manner it may do
so.’ Moreover, all of its actions of this kind are subject to judicial
review. Hayek’s aim here is to hem in the executive, insofar as its
use of coercion is concerned, by subordinating it to legislative
rules, on the one hand, and judicial review, on the other. In this
respect it is not ‘independent’ and therefore not a separate power
(211).
Hayek grants that administrators, like judges, must interpret
legislative rules in order to apply them, but the substance of their
interpretation must be subject to review by an independent court.
In such a review, the court will impose a very strict test, deciding
whether the administrative decision is ‘deducible from the rules
of law and from those circumstances to which the law refers and
which can be known to the private parties affected’ (1955: 41; 1960:
213–14). When it comes to protecting the individual from coercion
and securing impartial justice, independent courts must have the
last word.
The Rule of Law safeguards fundamental rights and civil
liberties
Hayek’s case for freedom is not built around the idea of individual
rights, but, nonetheless, rights are vital to his account of
the Rule of Law. These are not to be understood as natural rights,
in the Lockean sense, but as rights that have evolved historically
and have found expression in various constitutional provisions.
What can statements of rights add to the general argument for
freedom? After all, under ‘a reign of freedom the free sphere of the
individual includes all action not explicitly restricted by a general
law’ (216). If the individual enjoys the freedom (or right) to do
whatever a general law does not restrict, then what is gained by
enumerating specific rights? And since any enumeration is necessarily
incomplete, isn’t there a danger of depreciating rights that
aren’t explicitly recognised? Hayek acknowledges this danger,
but concludes that bills of rights have in the past afforded ‘an
import ant protection for certain rights known to be easily endangered’
(216).
In the Cairo Lectures, Hayek identifies the rights associated
with ‘life, liberty, and property,’ along with liberty of speech,
religion, the press and assembly, as essential ones; and he stresses
the right to private property in particular, since rules of property
determine ‘the boundaries of individual private spheres in the
material world, and ways of voluntarily changing these boundaries’
(1955: 44). Hayek’s emphasis in The Constitution of Liberty is
on how rights are endangered by advancing technologies (216).
He acknowledges the importance of procedural safeguards, but
does not expect that they will remain effective if belief in the Rule
of Law is weakened (218–19).
How do bills of rights serve to protect individual freedom?
Hayek grants that neither legal guarantees of fundamental rights
nor constitutional provisions can, in themselves, ‘prevent any
suppression of rights by the deliberate action of the ultimate legislator’
(217). We recall that the ultimate legislator, in democracies,
is the people, or, more precisely, public opinion or the prevailing
sense of justice (1955: 33; 1960: 217). Constitutional formulations
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