Law Legislation and Liberty: The Political Order of a Free People

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Incisive, straightforward, and eloquent, this third and concluding volume of F. A. Hayek's comprehensive assessment of the basic political principles which order and sustain free societies contains the clearest and most uncompromising exposition of the political philosophy of one of the world's foremost economists.

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Product Details

  • ISBN-13: 9780226320908
  • Publisher: University of Chicago Press
  • Publication date: 3/28/1981
  • Edition description: Digital Reprint
  • Pages: 258
  • Sales rank: 1,514,000
  • Product dimensions: 5.54 (w) x 8.54 (h) x 0.55 (d)

Meet the Author

F. A. Hayek (1899-1992), recipient of the Medal of Freedom in 1991 and co-winner of the Nobel Memorial Prize in Economics in 1974, was a pioneer in monetary theory and a leading proponent of classical liberalism  in the twentieth century. He taught at the University of London, the University of Chicago, and the University of Freiburg.

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Read an Excerpt

Law, Legislation and Liberty, Volume 3

The Political Order of a Free People

By Friedrich A. Hayek

The University of Chicago Press

Copyright © 1979 F. A. Hayek
All rights reserved.
ISBN: 978-0-226-32090-8



But the great number [of the Athenian Assembly] cried out that it was monstrous if the people were to be prevented from doing whatever they wished.... Then the Prytanes, stricken with fear, agreed to put the question—all of them except Socrates, the son of Sophroniscus; and he said that in no case would he act except in accordance with the law. Xenophon

The progressive disillusionment about democracy

When the activities of modern government produce aggregate results that few people have either wanted or foreseen this is commonly regarded as an inevitable feature of democracy. It can hardly be claimed, however, that such developments usually correspond to the desires of any identifiable group of men. It appears that the particular process which we have chosen to ascertain what we call the will of the people brings about results which have little to do with anything deserving the name of the 'common will' of any substantial part of the population.

We have in fact become so used to regard as democratic only the particular set of institutions which today prevails in all Western democracies, and in which a majority of a representative body lays down the law and directs government, that we regard this as the only possible form of democracy. As a consequence we do not care to dwell on the fact that this system not only has produced many results which nobody likes, even in those countries in which on the whole it has worked well, but also has proved unworkable in most countries where these democratic institutions were not restrained by strong traditions about the appropriate tasks of the representative assemblies. Because we rightly believe in the basic ideal of democracy we feel usually bound to defend the particular institutions which have long been accepted as its embodiment, and hesitate to criticize them because this might weaken the respect for an ideal we wish to preserve.

It is no longer possible, however, to overlook the fact that in recent times in spite of continued lip-service and even demands for its further extension, there has arisen among thoughtful persons an increasing disquiet and serious alarm about the results it often produces. This does not everywhere take the form of that cynical realism which is characteristic of some contemporary political scientists who regard democracy merely as just another form of an inevitable struggle in which it is decided 'who gets what, when, and how'. Yet that there prevails deep disillusionment and doubt about the future of democracy, caused by a belief that those developments of it which hardly anybody approves are inevitable, can scarcely be denied. It found its expression many years ago in Joseph Schumpeter's well known contention that, although a system based on the free market would be better for most, it is doomed beyond hope, while socialism, though it cannot fulfil its promises, is bound to come.

It seems to be the regular course of the development of democracy that after a glorious first period in which it is understood as and actually operates as a safeguard of personal freedom because it accepts the limitations of a higher nomos, sooner or later it comes to claim the right to settle any particular question in whatever manner a majority agrees upon. This is what happened to the Athenian democracy at the end of the fifth century, as shown by the famous occurrence to which the quotation at the head of this chapter refers; and in the next century Demosthenes (and others) were to complain that 'our laws are no better than so many decrees; nay, you will find that the laws which have to be observed in drafting the decrees are later than the decrees themselves.'

In modern times a similar development started when the British Parliament claimed sovereign, that is unlimited, powers and in 1766 explicitly rejected the idea that in its particular decisions it was bound to observe any general rules not of its own making. Though for a time a strong tradition of the rule of law prevented serious abuse of the power that Parliament had arrogated to itself, it proved in the long run the great calamity of modern development that soon after representative government was achieved all those restraints upon the supreme power that had been painfully built up during the evolution of constitutional monarchy were successively dismantled as no longer necessary. That this in effect meant the abandonment of constitutionalism which consists in a limitation of all power by permanent principles of government was already seen by Aristotle when he maintained that 'where the laws are not sovereign ... since the many are sovereign not as individuals but collectively ... such a democracy is not a constitution at all'; and it was recently pointed out again by a modern author who speaks of 'constitutions which are so democratic that they are properly speaking no longer constitutions'. Indeed, we are now told that the 'modern conception of democracy is a form of government in which no restriction is placed on the governing body' and, as we have seen, some have already drawn the conclusion that constitutions are an antiquated survival which have no place in the modern conception of government.

Unlimited power the fatal defect of the prevailing form of democracy

The tragic illusion was that the adoption of democratic procedures made it possible to dispense with all other limitations on governmental power. It also promoted the belief that the 'control of government' by the democratically elected legislation would adequately replace the traditional limitations, while in fact the necessity of forming organized majorities for supporting a programme of particular actions in favour of special groups introduced a new source of arbitrariness and partiality and produced results inconsistent with the moral principles of the majority. As we shall see, the paradoxical result of the possession of unlimited power makes it impossible for a representative body to make the general principles prevail on which it agrees, because under such a system the majority of the representative assembly, in order to remain a majority, must do what it can to buy the support of the several interests by granting them special benefits.

So it came about that with the precious institutions of representative government Britain gave to the world also the pernicious principle of parliamentary sovereignty according to which the representative assembly is not only the highest but also an unlimited authority. The latter is sometimes thought to be a necessary consequence of the former, but this is not so. Its power may be limited, not by another superior 'will' but by the consent of the people on which all power and the coherence of the state rest. If that consent approves only of the laying down and enforcement of general rules of just conduct, and nobody is given power to coerce except for the enforcement of these rules (or temporarily during a violent disruption of order by some cataclysm), even the highest constituted power may be limited. Indeed, the claim of Parliament to sovereignty at first meant only that it recognized no other will above it; it only gradually came to mean that it could do whatever it liked—which does not necessarily follow from the first, because the consent on which the unity of the state and therefore the power of any of its organs are founded may only restrain power but not confer positive power to act. It is allegiance which creates power and the power thus created extends only so far as it has been extended by the consent of the people. It was because this was forgotten that the sovereignty of law became the same thing as the sovereignty of Parliament. And while the conception of the rule (reign, sovereignty or supremacy) of law presupposes a concept of law defined by the attributes of the rules, not by their source, today legislatures are no longer so called because they make the laws, but laws are so called because they emanate from legislatures, whatever the form or content of their resolutions.

If it could be justly contended that the existing institutions produce results which have been willed or approved by a majority, the believer in the basic principle of democracy would of course have to accept them. But there are strong reasons to think that what those institutions in fact produce is in a great measure an unintended outcome of the particular kind of machinery we have set up to ascertain what we believe to be the will of the majority, rather than a deliberate decision of the majority or anybody else. It would seem that wherever democratic institutions ceased to be restrained by the tradition of the Rule of Law, they led not only to 'totalitarian democracy' but in due time even to a 'plebiscitary dictatorship'. This should certainly make us understand that what is a precious possession is not a particular set of institutions that are easily enough copied, but some less tangible traditions; and that the degeneration of these institutions may even be a necessary result wherever the inherent logic of the machinery is not checked by the predominance of the prevailing general conceptions of justice. May it not be true, as has been well said, that 'the belief in democracy presupposes belief in things higher than democracy'? And is there really no other way for people to maintain a democratic government than by handing over unlimited power to a group of elected representatives whose decisions must be guided by the exigencies of a bargaining process in which they bribe a sufficient number of voters to support an organized group of themselves numerous enough to outvote the rest?

The true content of the democratic ideal

Though a great deal of nonsense has been and still is being talked about democracy and the benefits its further extension will secure, I am profoundly disturbed by the rapid decline of faith in it. This sharp decrease of the esteem in which democracy is held by critical minds ought to alarm even those who never shared the unmeasured and uncritical enthusiasm it used to inspire until recently, and which made the term describe almost anything that was good in politics. As seems to be the fate of most terms expressing a political ideal, 'democracy' has been used to describe various kinds of things which have little to do with the original meaning of the term, and now is even often used where what is really meant is 'equality'. Strictly speaking it refers to a method or procedure for determining governmental decisions and neither refers to some substantial good or aim of government (such as a sort of material equality), nor is it a method that can be meaningfully applied to non-governmental organizations (such as educational, medical, military or commercial establishments). Both of these abuses deprive the word 'democracy' of any clear meaning.

But even a wholly sober and unsentimental consideration which regards democracy as a mere convention making possible a peaceful change of the holders of power should make us understand that it is an ideal worth fighting for to the utmost, because it is our only protection (even if in its present form not a certain one) against tyranny. Though democracy itself is not freedom (except for that indefinite collective, the majority of 'the people') it is one of the most important safeguards of freedom. As the only method of peaceful change of government yet discovered, it is one of those paramount though negative values, comparable to sanitary precautions against the plague, of which we are hardly aware while they are effective, but the absence of which may be deadly.

The principle that coercion should be allowed only for the purpose of ensuring obedience to rules of just conduct approved by most, or at least by a majority, seems to be the essential condition for the absence of arbitrary power and therefore of freedom. It is this principle which has made possible the peaceful co-existence of men in a Great Society and the peaceful change of the directors of organized power. But that whenever common action is necessary it should be guided by the opinion of the majority, and that no power of coercion is legitimate unless the principle guiding it is approved by at least a majority, does not imply that the power of the majority must be unlimited—or even that there must be a possible way of ascertaining what it called the will of the majority on every conceivable subject. It appears that we have unwittingly created a machinery which makes it possible to claim the sanction of an alleged majority for measures which are in fact not desired by a majority, and which may even be disapproved by a majority of the people; and that this machinery produces an aggregate of measures that not only is not wanted by anybody, but that could not as a whole be approved by any rational mind because it is inherently contradictory.

If all coercive power is to rest on the opinion of the majority, then it should also not extend further than the majority can genuinely agree. This does not mean that there must exist specific approval by the majority of any particular action of the government. Such a demand would clearly be impossible to fulfil in a complex modern society so far as the current direction of the detail of the government machinery is concerned, that is for all the day-to-day decisions about how the resources placed at the disposal of government are to be used. But it does mean that the individual should be bound to obey only such commands as necessarily follow from the general principles approved by the majority, and that the power of the representatives of the majority should be unrestricted only in the administration of the particular means placed at their disposal.

The ultimate justification of the conferment of a power to coerce is that such a power is required if a viable order is to be maintained, and that all have therefore an interest in the existence of such a power. But this justification does not extend further than the need. There is clearly no need that anybody, not even the majority, should have power over all the particular actions or things occurring in society. The step from the belief that only what is approved by the majority should be binding for all, to the belief that all that the majority approves shall have that force, may seem small. Yet it is the transition from one conception of government to an altogether different one: from the conception by which government has definite limited tasks required to bring about the formation of a spontaneous order, to the conception that its powers are unlimited; or a transition from a system in which through recognized procedures we decide how certain common affairs are to be arranged, to a system in which one group of people may declare anything they like as a matter of common concern and on this ground subject it to those procedures. While the first conception refers to necessary common decisions requisite for the maintenance of peace and order, the second allows some organized sections of the people to control everything, and easily becomes the pretext of oppression.

There is, however, no more reason to believe in the case of the majority that because they want a particular thing this desire is an expression of their sense of justice, than there is ground for such a belief in the case of individuals. In the latter we know only too well that their sense of justice will often be swayed by their desire for particular objects. But as individuals we have generally been taught to curb illegitimate desires, though we sometimes have to be restrained by authority. Civilization largely rests on the fact that the individuals have learnt to restrain their desires for particular objects and to submit to generally recognized rules of just conduct. Majorities, however, have not yet been civilized in this manner because they do not have to obey rules. What would we not all do if we were genuinely convinced that our desire for a particular action proves that it is just? The result is not different if people are persuaded that the agreement of the majority on the advantage of a particular measure proves that it is just. When people are taught to believe that what they agree is necessarily just, they will indeed soon cease to ask whether it is so. Yet the belief that all on which a majority can agree is by definition just has for several generations been impressed upon popular opinion. Need we be surprised that in the conviction that what they resolve is necessarily just, the existing representative assemblies have ceased even to consider in the concrete instances whether this is really so?


Excerpted from Law, Legislation and Liberty, Volume 3 by Friedrich A. Hayek. Copyright © 1979 F. A. Hayek. Excerpted by permission of The University of Chicago Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Corrigenda to Volume 2
12. Majority Opinion and Contemporary Democracy
13. The Division of Democratic Powers
14. The Public Sector and the Private Sector
15. Government Policy and the Market
16. The Miscarriage of the Democratic Ideal: A Recapitulation
17. A Model Constitution
18. The Containment of Power and the Dethronement of Politics
Epilogue: The Three Sources of Human Values
Index of Authors Cited in Volumes 1-3
Subject Index to Volumes 1-3

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