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
m a j o r i t y r u l e a n d l i m i t e d g o v e r n m e n t
Hayek explains that ‘the authority of democratic decision rests
on its being made by the majority of a community which is held
together by certain beliefs common to most members.’ Indeed, ‘it
is the acceptance of such common principles that makes a collection
of people a community.’ Hayek goes on to insist that majority
rule must be consistent with the community’s common beliefs
or principles and cannot override them: ‘it is necessary that the
majority submit to these common principles even when it may
be in its immediate interest to violate them.’ The key point is that
‘the power of the majority is limited by those commonly held principles
and that there is no legitimate power beyond them’ (106–7).
This formulation raises two problems that we must consider.
First, in what sense does ‘the majority of a community’ make the
authoritative decisions in a democracy? Second, does it make a
difference what opinions or beliefs a community holds?
Various seventeenth-century doctrines of community lie in the
background of Hayek’s political thought, especially those deriving
from Locke and from Rousseau. For Locke, individuals form a
particular commonwealth when they leave the state of nature, to
be governed ‘by such Rules as the Community, or those authorized
by them to that purpose, shall agree on’ (Second Treatise, no.
127). The community, by the consent of the majority, entrusts
power to a government, which provides for ‘establish’d standing
Laws, promulgated and known to the People;’ for ‘indifferent and
upright Judges,’ who will decide controversies by those laws; and
for a power that will execute those laws at home and secure the
community against foreign invasion (no. 131). The majority of
the community, which has ‘the whole power of the Community,
naturally in them,’ may choose among several forms of government.
It may decide to itself ‘imploy all that power in making
Laws for the Community from time to time, and Executing those
Laws by Officers of their own appointing.’ In this case, ‘the Form
of the Government is a perfect Democracy.’ The majority may,
however, choose from other forms: an oligarchy, consisting of ‘a
few select Men, and their Heirs or Successors;’ a monarchy, either
hereditary or elected; or some mixed form of government that is
compounded from these (no. 132). The point is that majority rule
may occur at either of two levels: the majority’s decision as to the
form of government (which need not be a democracy); and the
majority’s exercise of political power (if it decides to institute a
democratic form).
Rousseau’s innovation is to insist that the community must
retain the lawmaking power and not delegate it to others. What
can be delegated is only the power of government or the executive
power (see On the Social Contract, II: 1–6). Like Rousseau, Hayek
distinguishes sharply between lawmaking and governing. He
also commends Rousseau for understanding that the laws must
always be general in form (194; also Hayek, 1992: 251–2). Hayek is
highly critical, however, of other teachings of Rousseau, including
his insistence that law is an act of will by the community (Hayek,
1973: 25; cf. 1976: 147).
More recent majoritarian conceptions of democracy offer still
another way to understand majority rule. Unlike Rousseau, these
conceptions assign legislative power to a representative legislature,
but hold that the elected representatives should enact the
specific policies favoured by a majority of the community. The
people’s representatives make the law (presumably by a majority
vote), but the law’s direction is determined by majority opinion in
the community.
In Hayek’s case, one must decide whether he is speaking
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