Hayek’s Views on Law

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Jeffrey Thayne

Hayek begins his analysis of law by reminding us that the rule of law implies certain restrictions on government action. This makes the rule of law something distinct from legislation in general. Hayek explains: “From the fact that the rule of law is a limitation upon all legislation, it follows that it cannot itself be a law in the same sense as the laws passed by the legislator.” The conclusion here is that rule of law cannot be guaranteed or mandated by legislative enactment. In other words, when Hayek talks about the rule of law, he isn’t referring merely to constitutions or judicial procedures. Certainly, he says,

constitutional provisions may make infringements of the rule of law more difficult. They may help to prevent inadvertent infringements by routine legislation. But the ultimate legislator can never limit his own powers by law, because he can always abrogate any law he has made. The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared ad unquestioningly accepted by the majority.

Thus, the rule of law is a meta-legal doctrine or ideal that places restrictions on a legislator’s actions.

The Difference Between Coercion and Administration

Hayek distinguishes between coercive activities of government and other administrative activities of government. Hayek felt that it is important to remember that “not every enactment of the legislative authority is a law.” He also noted that not every act of government is coercive. “It is equally important,” he said, “to remember that the rule of law restricts government only in its coercive activities.”

“The great majority of the so-called laws,” Hayek said, “are rather instructions issued by the sate to its servants concerning the manner in which they are to direct the apparatus of government and the means which are at their disposal.” Hayek suggested that some problems may be solved by separating the coercive aspects of government from other more administrative aspects of government. He continued,

Today it is everywhere the task of the same legislature to direct the use of these means and to law down the rules which the ordinary citizen must observe. This, though the established practice, is not a necessary state of affairs. I cannot help wondering whether it might not be desirable to prevent the two types of decisions from being confused by entrusting the task of laying down general rules and the task of issuing orders to the administration to distinct representative bodies and by subjecting their decisions to independent judicial review so that neither will overstep its bounds.

… The present arrangements help to obscure the fact that, though government has to administer means which have been put at its disposal (including the services of all those whom it has hired to carry out its instructions), this does not mean that it should similarly administer the efforts of private citizens. What distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere, and the private individual cannot be ordered about but is expected to obey only the rules which are equally applicable to all. It used to be the boast of free men that, so long as they kept within the bounds of known law, there was no need to ask anybody’s permission or to obey anybody’s orders.

Central to the rule of law, according to Hayek, is that government “must never coerce an individual except in the enforcement of a known rule” and “can infringe a person’s protected private sphere only as punishment for breaking an announced general rule.” For these reasons, “under the rule of law the private citizen and his property are not an object of administration by the government, not a means to be used for its purposes. … the principle of the rule of law, in effect, means that administrative authorities should have no discretionary powers in this respect.” On the question of the legal limits of administrative discretion, Hayek explained:

As Dicey has pointed out, ‘in the management of its own business, properly so called, the government will be found to need that freedom of action, necessarily possessed by every private person in the management of his own personal concerns.’ It may well be that legislative bodies are often overzealous in limiting the discretion of the administrative agencies and necessarily hamper their efficiency. This may be unavoidable to some degree; and it is probably necessary that bureaucratic organizations should be bound by rule to a greater extent than business concerns, as they lack that test of efficiency which profits provide in commercial affairs.

Again, Hayek tempers this claim with the provision that the private citizen is not considered an “object of administration” of the government.

Restrictions on Law

Hayek outlined several basic requirements for the rule of law.

1. Generality and Prospectivity. Hayek believed that laws need to be abstract in some sense. Some have claimed that this means that laws cannot contain proper nouns. The principle of generality does have this effect; laws cannot name particular people, places, etc. Heyek explained, “The general, abstract rules, which are laws in the substantive sense, are, as we have seen, essentially long-term measures, referring to yet unknown cases and containing no references to particular persons, places, or objects.” Lumped with the generality principle is the idea that “laws must always be prospective, never retrospective, in their effect.”

2. Publicity and Understandability. According to Hayek, “[another] chief attribute which must be required of true laws is that they be known and certain.” Some scholars, such as legal realists and Critical Legal Studies, claim that court rulings are never certain and often inconsistent. The claim is that the rules or principles on which judges base their decisions often differ from the written words of the law, and therefore the rules that really matter in a legal case are not public or understandable. Hayek believed that those who critique the certainty of law are mistaken. “The modern tendency to exaggerate this uncertainty,” he said, “is part of the campaign against the rule of law.” Laws are generally good at this: “It is the cases that never come before the courts, not those that do, that are the measure of the certainty of the law.”

Hayek did acknowledge, in response to these critical theorists, that judicial reasoning isn’t perfectly predictable. He said, “Psychologically, legal reasoning does not, of course, consist in explicit syllogisms, and the major premises will often not be explicit.” What is important, he said, is that the public is able to know what is expected of them, and if a judge’s decision can be reviewed and, in turn, replicated by an independent court, the rule of law can be preserved.

3. Equality. Hayek felt that there was no room for class distinctions in the rule of law. “That any law should apply equally to all,” he explained, “means more than that it should be general in the sense we have [previously] defined. A law may be perfectly general in referring only to formal characteristics of the persons involved and yet make different provisions for the different classes of people.” Hayek sees this as one of the greatest protection against infringements on individual liberty. This is because legislators and government officials often exempt themselves from the obligation to obey the laws they enact, thus creating for themselves a protected or special class. The equality principle forbids this kind of legislation, and requires that officials be subject to the same laws they enact.

4. Separation of legislative and judicial powers. This follows from the generality principle. Hayek explained, “Rules must not be made with particular cases in mind, nor must particular cases be decided in the light of anything but the general rule… This requires independent judges who are not concerned with any temporary ends of government.”


In summary, Hayek was firm defender of the rule of law, which he considered a political ideal. He understood the rule of law as a set of restrictions on the legislative powers of any government, and outlined a few of those restrictions. He strongly believed in a separation of the private affairs of the populace and the administrative affairs of the government. He did not believe that government should have any discretion to coerce private citizens, unless done by laws that meet the rule of law criteria.

All quotations drawn from F. A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960).

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