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 individual rights serve to ‘impress upon the public mind’ the
value of these rights. They become ‘part of a political creed which
the people will defend even when they do not fully understand its
significance’ (217).
Emergency powers, just compensation and the public
interest
After listing the attributes of true law, Hayek discusses government’s
emergency powers. Here he addresses, in a somewhat
indirect way, the vital question of how and when the Rule of Law
is to be applied. Hayek assumes that applications of the Rule of
Law must be governed by the public interest. This implies that
protection for individual rights can be suspended where the
interest of the community requires it.
In The Constitution of Liberty, Hayek argues as follows: legal
guarantees of individual freedom are basic to ‘the normal running
of society,’ but they are not ‘absolute rights’ that can never be
infringed: ‘Even the most fundamental principles of a free society
… may have to be temporarily sacrificed when, but only when, it is
a question of preserving liberty in the long run.’ Such a sacrifice of
individual liberties might be necessary in a time of war, requiring
a suspension of habeas corpus protections and even the imposition
of ‘a state of siege.’
Having made these points, Hayek turns quickly from broad
emergency powers to narrower ways in which government, acting
in ‘the public interest,’ might justifiably infringe particular liberties.
Two such cases, which ‘can hardly be disputed,’ are curtailing
freedom of speech in a situation of ‘clear and present danger’ and
compulsory land purchase through government’s right of eminent
domain. 1 Hayek goes on to insist that such cases should conform
to a rule, so that they can be reviewed by an independent court,
and that individuals who are affected should receive full compensation,
both as a matter of justice and as a deterrent to government
arbitrariness (217–18).
Hayek’s third Cairo Lecture makes roughly the same points,
but with this important difference: it offers a much more detailed
rationale for emergency powers. As Hayek reminds us, the Rule of
Law establishes a sphere ‘in which the individual can follow his own
will’ and also know clearly ‘the conditions and the manner in which
he can be coerced.’ Nevertheless, the individual’s private sphere is
not sacrosanct under all conditions. Exceptional circumstances will
arise ‘in which it would be in the highest interest of the Community
that particular individuals should be made to do things as a result of
events which they do not know and in a manner for which no rule
provides.’ These exceptional circumstances include ‘natural catastrophes’
and ‘war or other sudden dangers.’ Such events call for
swift and concerted action, so that even the private citizen may be
required to ‘place himself under the command of authority.’
Emergency powers must be exercised by ‘guardians of the
public interest.’ These guardians must be kept in check, however,
by an independent court, which will ‘decide on general abstract
principles not only about the legitimacy of the interference but
also about the appropriate compensation.’ The community, which
benefited from the exercise of emergency powers, must bear the
cost of compensating the individual fully for every infringement
of his right of private property or of ‘other legally acquired rights’
(1955: 44–5).
1 ‘Eminent domain’ is the phrase often used in the USA to describe what is generally
known simply as ‘compulsory purchase’ in the UK.
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