Law, Legislation, and Liberty

A New Statement of the Liberal Principles of Justice and Political Economy

F.A. Hayek, Jeremy Shearmur

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9781032341576
• eBook ISBN: 9781000651874
• Edition: 1
• Topic: Economics
• Subtopic: Economic Theory
• Index: Economics

A new edition of F. A. Hayek's three-part opus Law, Legislation, and Liberty, collated in a single volume

In this critical entry in the Collected Works of F. A. Hayek series, political philosopher Jeremy Shearmur collates Hayek's three-part study of law and liberty and places Hayek's writings in careful historical context. Incisive and unrestrained, Law, Legislation, and Liberty is Hayek at his late-life best, making it essential reading for understanding the philosopher's politics and worldview. These three volumes constitute a scaling up of the framework offered in Hayek's famed The Road to Serfdom. Volume 1, Rules and Order, espouses the virtues of classical liberalism; Volume 2, The Mirage of Social Justice, examines the societal forces that undermine liberalism and, with it, liberalism's capacity to induce "spontaneous order"; and Volume 3, The Political Order of a Free People, proposes alternatives and interventions against emerging anti-liberal movements, including a rule of law that resides in stasis with personal freedom. Shearmur's treatment of this challenging work—including an immersive new introduction, a conversion of Hayek's copious endnotes to footnotes, corrections to Hayek's references and quotations, and the provision of translations to material that Hayek cited only in languages other than English—lends it new importance and accessibility. Rendered anew for the next generations of scholars, this revision of Hayek's Law, Legislation, and Liberty is sure to become the standard.

VOLUME 1 RULES AND ORDER

Intelligent beings may have laws of their own making; but they also have some which they never made.

—Montesquieu, De l’Esprit des lois, I¹

¹ ‘… intelligent beings can have laws that they have made, but they also have some that they have not made’. Montesquieu: The Spirit of the Laws, ed. Anne M. Cohler et al (Cambridge etc: Cambridge University Press, 1989), p. 4.

INTRODUCTION

There seems to be only one solution to the problem: that the élite of mankind acquire a consciousness of the limitation of the human mind, at once simple and profound enough, humble and sublime enough, so that Western civilisation will resign itself to its inevitable disadvantages.

—G. Ferrero¹

¹ Guglielmo Ferrero, The Principles of Power (New York: G. P. Putnam’s Sons, 1942), p. 318. The paragraph from which the quotation is taken begins: ‘Order is the exhausting Sisyphean labor of mankind against which mankind is always in a potential state of conflict …’. [This material comes earlier on the same page rather than at the start of the paragraph. – Ed.]

When Montesquieu and the framers of the American Constitution articulated the conception of a limiting constitution² that had grown up in England, they set a pattern which liberal constitutionalism has followed ever since. Their chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers. In the form in which we know this division of power between the legislature, the judiciary and the administration, it has not achieved what it was meant to achieve. Governments everywhere have obtained by constitutional means powers which those men had meant to deny them. The first attempt to secure individual liberty by constitutions has evidently failed.

² The time-honoured phrase widely used in the eighteenth and nineteenth centuries is ‘limited constitution’, but the expression ‘limiting constitution’ also occurs occasionally in the earlier literature. [There is a brief but interesting discussion of this notion in connection with the debates in the early years of the French Revolution, in Stéphane Rials, ‘Rights and Modern Law’, in New French Thought: Political Philosophy, ed. Mark Lilla (Princeton: Princeton University Press, 1994), pp. 169–70. – Ed.]

Constitutionalism means limited government.³ But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited.⁴ As a result it has already been seriously suggested that constitutions are an antiquated survival which have no place in the modern conception of government.⁵ And, indeed, what function is served by a constitution which makes omnipotent government possible? Is its function to be merely that governments work smoothly and efficiently, whatever their aims?

³ See K. C. Wheare, Modern Constitutions, revised edition (London: Oxford University Press, 1962), p. 202: ‘the original idea behind {constitutions} is that of limiting government and of requiring those who govern to conform to laws and rules’ [cf. K. C. Wheare, Modern Constitutions, second edition (London: Oxford University Press, 1966), p. 137 – Ed.]; see also C. H. McIlwain, Constitutionalism: Ancient and Modern (Ithaca: Cornell University Press, 1958), p. 21 (Indianapolis: Liberty Fund, 2008), p. 17 – Ed.]: ‘All constitutional government is by definition limited government … constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will’; C. J. Friedrich, Constitutional Government and Democracy (Boston: Little, Brown, 1941), especially p. 131, where a constitution is defined as ‘the process by which governmental action is effectively restrained’. ⁴ See Richard Wollheim, ‘A Paradox in the Theory of Democracy’, in Philosophy, Politics and Society, series 2, ed. Peter Laslett and W. G. Runciman (Oxford: Blackwell, 1962), pp. 71–87; see p. 72: ‘the modern conception of democracy is a form of government in which no restriction is placed on the governing body’. ⁵ See Georges Burdeau, ‘Une survivance: la notion de Constitution’, L’Évolution du Droit Public: Études offertes à Achille Mestre (Paris: SIREY, 1956), pp. 53–62.

In these circumstances it seems important to ask what those founders of liberal constitutionalism would do today if, pursuing the aims they did, they could command all the experience we have gained in the meantime. There is much we ought to have learned from the history of the last two hundred years that those men with all their wisdom could not have known. To me their aims seem to be as valid as ever. But as their means have proved inadequate, new institutional invention is needed.

In another book I have attempted to restate, and hope to have in some measure succeeded in clarifying, the traditional doctrine of liberal constitutionalism.⁶ But it was only after I had completed that work that I came to see clearly why those ideals had failed to retain the support of the idealists to whom all the great political movements are due, and to understand what are the governing beliefs of our time which have proved irreconcilable with them. It seems to me now that the reasons for this development were chiefly: the loss of the belief in a justice independent of personal interest; a consequent use of legislation to authorize coercion, not merely to prevent unjust action but to achieve particular results for specific persons or groups; and the fusion in the same representative assemblies of the task of articulating the rules of just conduct with that of directing government.

⁶ See F. A. Hayek, The Constitution of Liberty (London: Routledge; Chicago: University of Chicago Press, 1960). [See now The Constitution of Liberty (1960), ed. Ronald Hamowy, volume 17 (2011) of The Collected Works of F. A. Hayek (Chicago: University of Chicago Press; London: Rout-ledge). – Ed.]

What led me to write another book on the same general theme as the earlier one was the recognition that the preservation of a society of free men depends on three fundamental insights which have never been adequately expounded and to which the three main parts of this book are devoted. The first of these is that a self-generating or spontaneous order and an organization are distinct, and that their distinctiveness is related to the two different kinds of rules or laws which prevail in them. The second is that what today is generally regarded as ‘social’ or distributive justice has meaning only within the second of these kinds of order, the organization; but that it is meaningless in, and wholly incompatible with, that spontaneous order which Adam Smith called ‘the Great Society’, and Sir Karl Popper called ‘the Open Society’.⁷ The third is that the predominant model of liberal democratic institutions, in which the same representative body lays down the rules of just conduct and directs government, necessarily leads to a gradual transformation of the spontaneous order of a free society into a totalitarian system conducted in the service of some coalition of organized interests.

⁷ [For references and some discussion, see chapter 1, note 16. – Ed.]

This development, as I hope to show, is not a necessary consequence of democracy, but an effect only of that particular form of unlimited government with which democracy has come to be identified. If I am right, it would indeed seem that the particular form of representative government which now prevails in the Western world, and which many feel they must defend because they mistakenly regard it as the only possible form of democracy, has an inherent tendency to lead away from the ideals it was intended to serve. It can hardly be denied that, since this type of democracy has come to be accepted, we have been moving away from that ideal of individual liberty of which it had been regarded as the surest safeguard, and are now drifting towards a system which nobody wanted.

Signs are not wanting, however, that unlimited democracy is riding for a fall and that it will go down, not with a bang, but with a whimper. It is already becoming clear that many of the expectations that have been raised can be met only by taking the powers of decision out of the hands of democratic assemblies and entrusting them to the established coalitions of organized interests and their hired experts. Indeed, we are already told that the function of representative bodies has become to ‘mobilize consent’,⁸ that is, not to express but to manipulate the opinion of those whom they represent. Sooner or later the people will discover that not only are they at the mercy of new vested interests, but that the political machinery of para-government, which has grown up as a necessary consequence of the provision-state, is producing an impasse by preventing society from making those adaptations which in a changing world are required to maintain an existing standard of living, let alone to achieve a rising one. It will probably be some time before people will admit that the institutions they have created have led them into such an impasse. But it is probably not too early to begin thinking about a way out. And the conviction that this will demand some drastic revision of beliefs now generally accepted is what makes me venture here on some institutional invention.

⁸ See Samuel H. Beer, ‘The British legislature and the problem of mobilizing consent’, in Law-makers in a Changing World, ed. Elke Frank (Englewood Cliffs, NJ: Prentice-Hall, 1966), pp. 30–48, and reprinted in Essays on Reform, ed. Bernard Crick (London: Oxford University Press, 1967), pp. 81–100.

If I had known when I published The Constitution of Liberty that I should proceed to the task attempted in the present work, I should have reserved that title for it. I then used the term ‘constitution’ in the wide sense in which we use it also to describe the state of fitness of a person. It is only in the present book that I address myself to the question of what constitutional arrangements, in the legal sense, might be most conducive to the preservation of individual freedom. Except for a bare hint which few readers will have noticed,⁹ I confined myself in the earlier book to stating the principles which the existing types of government would have to follow if they wished to preserve freedom. Increasing awareness that the prevailing institutions make this impossible has led me to concentrate more and more on what at first seemed merely an attractive but impracticable idea, until the utopia lost its strangeness and came to appear to me as the only solution of the problem in which the founders of liberal constitutionalism failed.

⁹ See F. A. Hayek, op. cit., p. 207 and note 12 on page 488. [Hamowy edition, p. 314 and note 12 on page 327. Hayek, in this material, is alluding to the ideas about two chambers in a parliamentary body, one of which has the task of laying down general laws, a version of which he develops in chapter 17 of the present volume. – Ed.]

Yet to this problem of constitutional design I turn only in volume 3 of this work. To make a suggestion for a radical departure from established tradition at all plausible required a critical re-examination not only of current beliefs but of the real meaning of some fundamental conceptions to which we still pay lip-service. In fact, I soon discovered that to carry out what I had undertaken would require little less than doing for the twentieth century what Montesquieu had done for the eighteenth. The reader will believe me when I say that in the course of the work I more than once despaired of my ability to come even near the aim I had set myself. I am not speaking here of the fact that Montesquieu was also a great literary genius whom no mere scholar can hope to emulate. I refer rather to the purely intellectual difficulty which is a result of the circumstance that, while for Montesquieu the field which such an undertaking must cover had not yet split into numerous specialisms, it has since become impossible for any man to master even the most important relevant works. Yet, although the problem of an appropriate social order is today studied from the different angles of economics, jurisprudence, political science, sociology and ethics, the problem is one which can be approached successfully only as a whole. This means that whoever undertakes such a task today cannot claim professional competence in all the fields with which he has to deal, or be acquainted with the specialized literature available on all the questions that arise.

Nowhere is the baneful effect of the division into specialisms more evident than in the two oldest of these disciplines, economics and law. Those eighteenth-century thinkers to whom we owe the basic conceptions of liberal constitutionalism, David Hume and Adam Smith, no less than Montesquieu, were still concerned ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Editorial Preface
• Editor’s Introduction
• Law, Legislation, and Liberty
• Volume 1 Rules and Order
• Volume 2 The Mirage of Social Justice
• Volume 3 The Political Order of a Free People
• Epilogue: The Three Sources of Human Values
• Author Index
• Subject Index