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Law, legislation and liberty : A new statement of the liberal principles ofjustice and political economy
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LAW, LEGISLATION AND LIBERTY
This is Hayek's major statement of political philosophy. Rejecting
Marx, Freud, logical positivism and political egalitarianism, Hayek
shows that the naive application of scientific methods to culture
and education has been harmful and misleading, creating superstition and error rather than an age of reason and culture.
Law, Legislation and Liberty combines all three volumes of
Hayek's comprehensive study on the basic principles of the
political order of a free society. Rules and Order deals with the
basic conceptions necessary for a critical analysis of prevailing
theories of justice and of conditions which a constitution securing
personal liberty would have to satisfy. The Mirage of Social Justice
presents a critical analysis of the theories of utilitarianism, legal
positivism and 'social justice'. The Political Order ofa Free People
demonstrates that the democratic ideal is in danger of miscarrying
due to confusions of egalitarianism and democracy, erroneous
assumptions that there can be moral standards without moral discipline, and that tradition can be ignored in proposals for restructuring society.
F.A. Hayek became both a Doctor of Law and a Doctor of Political Science at the University of Vienna. He was made the first
Director of the Austrian Institute of Economic Research and in
1931 was appointed to a chair at the London School of Economics. In 1950 he went to the University of Chicago as Professor
of Social and Moral Sciences and then became Professor of Economics at the Albert-Ludwigs-Universitat of Frieburg and Professor
Emeritus in 1967. He was also a Fellow of the British Academy
and was awarded a Nobel Memorial Prize in Economics in 1974.
Hayek died in 1992.
LAW, LEGISLATION
AND LIBERTY
A new statement of the liberal principles
ofjustice and political economy
Volume 1
RULES AND ORDER
Volume 2
THE MIRAGE OF SOCIAL JUSTICE
Volume 3
THE POLITICAL ORDER
OF A FREE PEOPLE
F. A. Hayek
Vol. 1 Rules and Order first published 1973
Vol. 2 The Mirage of Social Justice first published 1976
Vol. 3 The Political Order of a Free People first published 1979
First published in one volume with corrections and revised preface
in 1982 by Routledge & Kegan Paul Ltd.
Reprinted 1993, 1998
by Routledge
11 New Fetter Lane, London EC4P 4EE
© F. A. Hayek 1973, 1976, 1979, 1982
Printed and bound in Great Britain by
T.l. International Ltd, Padstow, Cornwall
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from the
publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British
Library
ISBN 0-415-09868-8
CONTENTS
Volume 1
RULES AND ORDER
CONSOLIDATED PREFACE
INTRODUCTION
xv
REASON AND EVOLUTION 8
Construction and evolution 8
The tenets ofCartesian rationalism 9
The permanent limitations ofourfactual knowledge 11
Factual knowledge and science 15
The concurrent evolution ofmind and society: the role
ofrules 17
The false dichotomy of 'natural' and 'artificial' 20
The rise ofthe evolutionary approach 22
The persistence ofconstructivism in current thought 24
Our anthropomorphic language 26
Reason and abstraction 29
Why the extreme forms ofconstructivist rationalism
regularly lead to a revolt against reason 31
2 COSMOS AND TAXIS 35
The concept oforder 35
The two sources oforder 36
The distinguishing properties ofspontaneous orders 38
Spontaneous orders in nature 39
In society, reliance on spontaneous order both extends and
limits our powers ofcontrol 41
Spontaneous orders result from their elements obeying
certain rules ofconduct 43
The spontaneous order ofsociety is made up ofindividuals
and organizations 46
v
CONTENTS
The rules ofspontaneous orders and the rules of
organization 48
The terms 'organism' and 'organization' 52
3 PRINCIPLES AND EXPEDIENCY 55
Individual aims and collective benefits 55
Freedom can be preserved only by following principles and
is destroyed by following expediency 56
The 'necessities' ofpolicy are generally the consequences
ofearlier measures 59
The danger ofattaching greaterimportance to the predictable
ratherthan to the merelypossibleconsequences ofouractions 61
Spuriousrealisln and the required courage to consider utopia 62
The role ofthe lawyer in political evolution 65
The modern development oflaw has been guided largely by
false economics 67
4 THE CHANGING CONCEPT OF LAW 72
Law is older than legislation 72
The lessons ofethology and cultural anthropology 74
The process 0.[articulation ofpractices 76
Factual and normative rules 78
Early law 81
The classical and the medieval tradition 82
The distinctive attributes oflaw arising from custom and
precedent 85
Why grown law requires correction by legislation 88
The origin oflegislative bodies 89
Allegiance and sovereignty 91
5 NOMOS: THE LAW OF LIBERTY 94
The functions ofthe judge 94
How the task ofthe judge differsfro In that ofthe head of
an organization 97
The aiJn ofjurisdiction is the Inaintenance ofan ongoing
order ofactions 98
'Actions towards others' and theprotection ofexpectations 101
vi
CONTENTS
In a dynamic order ofactions only some expectations can
be protected 102
The maximal coincidence ofexpectations is achieved by
the deli/nitation ofprotected domains 106
The general problem ofthe effects of values on facts 110
The 'purpose' oflaw 112
The articulations ofthe law and the predictability of
judicial decisions 115
Thefunction ofthejudge is confined to aspontaneous order 118
Conclusions 122
6 THESIS: THE LAW OF LEGISLATION 124
Legislation originatesfrom the necessity ofestablishing
rules oforganization 124
Law and statute-the enforcement oflaw and the execution
ofcommands 126
Legislation and the theory ofthe separation ofpowers 128
The governmentalfunctions ofrepresentative asselnblies 129
Private law and public law 131
Constitutional law 134
Financial legislation 136
Administrative law and the police power 137
The 'Ineasures, ofpolicy 139
The transformation ofprivate law into public law by
'social'legislation 141
The Inental bias ofa legislature preoccupied with governlnent 143
NOTES
vii
145
CONTENTS
Volume 2
THE MIRAGE OF SOCIAL JUSTICE
7 GENERAL WELFARE AND PARTICULAR PURPOSES
In afree society the general good consists principally in
the facilities for the pursuit ofunknown purposes 1
The general interest and collective goods 6
Rules and ignorance 8
The significance ofabstract rules in a world in which most
ofthe particulars are unknown 11
Will and opinion, ends and values, commands and rules,
and other terminological issues 12
Abstract rules operate as ultimate values because they
serve unknown particular ends 15
The constructivist fallacy ofutilitarianism 17
All valid criticism or improvement ofrules ofconduct
must proceed within a given system ofrules 24
'Generalization' and the test ofuniversalizabiiity 27
To perform theirfunctions rules must be applied
throughout the long run 29
8 THE QUEST FOR JUSTICE 31
Justice is an attribute ofhuman conduct 31
Justice and the law 34
Rules ofjust conduct are generally prohibitions ofunjust
conduct 35
Not only the rules ofjust conduct, but also the test of
theirjustice, are negative 38
The significance ofthe negative character ofthe test of
injustice 42
The ideology oflegal positivism 44
The 'pure theory oflaw' 48
viii
CONTENTS
Law and morals 56
The 'law ofnature' 59
Law and sovereignty 61
9 'SOCIAL' OR DISTRIBUTIVE JUSTICE 62
The concept of 'social justice' 62
The conquest ofpublic imagination by 'social justice' 65
The inapplicability ofthe concept ofjustice to the
results ofa spontaneous process 67
The rationale ofthe economic game in which only the
conduct ofthe players but not the result can be just 70
The alleged necessity ofa beliefin the justice ofrewards 73
There is no 'value to society' 75
The meaning of 'social' 78
'Social justice' and equality 80
'Equality ofopportunity' 84
'Social justice' andfreedom under the law 85
The spatial range of 'social justice' 88
Claimsfor compensation for distasteful jobs 91
The resentment ofthe loss ofaccustomed positions 93
Conclusions 96
APPENDIX TO CHAPTER 9 JUSTICE AND
INDIVIDUAL RIGHTS 101
lOTHEM ARK ETOR DE R 0 RCATAL L A X Y 107
The nature ofthe market order 107
A free society is a pluralistic society without a common
hierarchy ofends 109
Though not asingle economy, the Great Society isstillheld
together by what vulgarly are calledeconomic relations 112
The aim ofpolicy in a society offree men cannot be a
maximum offoreknown results but only an abstract order 114
The game ofcatallaxy 115
In judging the adaptations to changing circumstances
comparisons ofthe new with the former position are
irrelevant 120
ix
CONTENTS
Rules ofjust conduct protect only material domains and
not market values 123
The correspondence ofexpectations is brought about by a
disappointment ofsome expectations 124
Abstract rules ofconduct can determine only chances and
not particular results 126
Specific comlnands ('interference') in a catallaxy create
disorder and can never be just 128
The aim oflaw should be to improve equally the chances
ofall 129
The Good Society is one in which the chances ofanyone
selected at random are likely to be as great as possible 132
11 THE DISCIPLINE OF ABSTRACT RULES AND THE
EMOTIONS OF THE TRIBAL SOCIETY 133
The pursuit ofunattainable goals may prevent the
achievement ofthe possible 133
The causes ofthe revival ofthe organizational thinking
ofthe tribe 134
The immoral consequences ofmorally inspired efforts 135
In the Great Society 'social justice' becomes a disruptive
force 137
From the care ofthe most unfortunate to the protection
of vested interests 139
Attempts to 'correct' the order ofthe market lead to its
destruction 142
The revolt against the discipline ofabstract rules 143
The morals ofthe open and ofthe closed society 144
The old conflict between loyalty and justice 147
The small group in the Open Society 149
The importance of voluntary associations 150
NOTES 153
x
CONTENTS
Volume 3
THE POLITICAL ORDER OF A
FREE PEOPLE
12 MAJORITY OPINION AND CONTEMPORARY
DEMOCRACY
The progressive disillusionment about democracy
Unlimited power the fatal effect ofthe prevailing form
ofdemocracy 3
The true content ofthe democratic ideal 5
The weakness ofan elective assembly with unlimited
powe~ 8
Coalitions oforganized interests and the apparatus of
para-government 13
Agreement on general rules and on particular measures 17
13 THE DIVISION OF DEMOCRATIC POWERS 20
The loss ofthe original conception ofthe functions ofa
legislature 20
Existing representative institutions have been shaped by
the needs ofgovernment, not oflegislation 22
Bodies with powers ofspecific direction are unsuitedfor
law-making 25
The character ofexisting 'legislatures' determined by their
governmental tasks 27
Party legislation leads to the decay ofdemocratic society 31
The constructivistic superstition ofsovereignty 33
The requisite division ofthe powers ofrepresentative
assemblies 35
Democracy or demarchy? 38
xi
CONTENTS
14 THE PUBLIC SECTOR AND THE PRIVATE
SECTOR 41
The double task ofgovernment 41
Collective goods 43
The delimitation ofthe public sector 46
The independent sector 49
Taxation and the size ofthe public sector 51
Security 54
Government monopoly ofservices 56
Information and education 60
Other critical issues 62
15 GOVERNMENT POLICY AND THE MARKET 65
The advantages ofcompetition do not depend on it being
'perfect' 65
Competition as a discovery procedure 67
If the factual requirements of 'perfect' competition are
absent, it is not possible to makefirmsact 'asif' it existed 70
The achievements ofthe free market 74
Competition and rationality 75
Size, concentration and power 77
The political aspects ofeconomic power 80
When monopoly becomes harmful 83
The problem ofanti-monopoly legislation 85
Not individual, but group selfishness is the chief threat 89
The consequences ofa political determination ofthe
incomes ofthe different groups 93
Organizable and non-organizable interests 96
16 THE MISCARRIAGE OF THE DEMOCRATIC
IDEAL: A RECAPITUALATION 98
The miscarriage ofthe democratic ideal 98
A 'bargaining' democracy 99
The playball ofgroup interests 99
Laws versus directions 100
Laws and arbitrary government 101
Froln unequal treatment to arbitrariness 102
Separation ofpowers to prevent unlimited governlnent 104
xii
CONTENTS
17 A MODEL CONSTITUTION 105
The wrong turn taken by the development ofrepresentative
institutions 105
The value ofa model ofan ideal constitution 107
The basic principles 109
The two representative bodies with distinctive functions 111
Further observations on representation by age groups 117
The governmental assembly 119
The constitutional court 120
The generalstructure ofauthority 122
Emergency powers 124
The division offinancial powers 126
18 THE CONTAINMENT OF POWER AND THE
DETH RONEM ENT OF POL ITICS 128
Lilnited and unlimited power 128
Peace, freedom and justice: the three great negatives 130
Centralization and decentralization 132
The rule ofthe Inajority versus the rule oflaws approved
by the majority 133
Moral confusion and the decay oflanguage 135
Democratic procedure and egalitarian objectives 137
'State' and 'society' 139
A game according to rules can never knowjustice of
treatment 141
The para-government oforganized interests and the
hypertrophy ofgovernment 143
Unlimited democracy and centralization 145
The devolution ofinternal policy to local government 146
The abolition ofthe government monopoly ofservices 147
The dethronement ofpolitics 149
EPILOGUE: THE THREE SOURCES OF HUMAN
VALUES 153
The errors ofsociobiology 153
The process ofcultural evolution 155
The evolution ofself-maintaining complex systems 158
The stratification ofrules ofconduct 159
xiii
CONTENTS
Customary rules and economic order 161
The discipline offreedom 163
The re-emergence ofsuppressed primordial instincts 165
Evolution, tradition and progress 168
The construction ofnew morals to serve old instincts:
A1arx 169
The destruction ofindispensable values by scientific error:
Freud 173
The tables turned 175
NOTES 177
I N DE X 0 F AUT H 0 RSCITED I N VOL U M E S 1 - 3 209
SUBJECT INDEX TO VOLUMES 1-3 217
xiv