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
Hayek does not here identify the well-informed ‘guardians of
the common interest’ who will exercise emergency powers. One
might assume that he has in mind the executive, or some portion
of it, or perhaps the judges who review the executive’s actions.
When Hayek returns to this topic much later, he assigns these
powers to ‘an emergency committee of the Legislative Assembly,’
which would be ‘entitled to grant limited emergency powers until
the Assembly as a whole could be convened.’ The full Assembly
would then ‘determine both the extent and duration of the emergency
powers granted to government’ (1979: 125).
Hayek seems to count on the executive’s acquiescence to the
courts and to the legislature when its use of emergency powers
is called into question. Accordingly he is silent here about the
possible need to curb an obdurate or despotic government. Liberalism
in its classical or Lockean form had assigned this responsibility
ultimately to the community or to the people. It taught that
the community, which is the source of political power, may resist
and depose a government that consistently abuses its power (see
Second Treatise, nos 222–30 and 240–43). The American Declaration
of Independence puts it this way: if government persists in
violating the ends for which it was formed, then ‘it is the right of
the people to alter or to abolish it’ and to institute new government
of such principles and form as shall seem to them ‘most
likely to effect their safety and happiness.’
This is not Hayek’s kind of liberalism. He grants that community
opinion is the ultimate authority in policy matters, but gives
no hint that the community might forcibly change an abusive
government. Generally speaking, Hayek opposes violent ruptures
with the past: ‘Perhaps no violent revolution is likely to increase
the respect for the law’ (194). He is critical in particular of the
French Revolution, as it eventually unfolded, and of the line of
modern political thought that it inspired. At the same time he
applauds conservative writers who not only opposed the French
Revolution, but identified progress with undirected growth and
respect for tradition (see 55–6, 174–5, 194–5 and 400).
To summarise, the Rule of Law aims to secure individual
freedom, partly by identifying rights that government must
protect. This ideal is constant, but its application depends on what
best serves the community’s interest under prevailing conditions.
Suspending individual rights is justified if the community’s safety
is at stake. When it comes to the use of emergency powers, Hayek
reasons that a short-term sacrifice of liberty may be required for
its long-term preservation. There remains, however, the question
of what limits on freedom are permissible in ‘normal’ times, as
measured by the public interest. In the absence of an emergency,
can government, acting for the community’s benefit, justifiably
curb the liberty of individuals and coerce them, even if they have
not disobeyed the law or violated anyone’s private sphere? Hayek
opens this door by referring to government’s right of compulsory
purchase. Are there other, more essential examples? We will find
an answer to this question shortly.
132
133