Law, Legislation, and Liberty, Volume 19

F. A. Hayek (1899–1992), recipient of the Presidential Medal of Freedom in 1991 and co-winner of the Nobel 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. Jeremy Shearmur is a fellow emeritus in philosophy at the Australian National University. His published books include The Political Thought of Karl Popper and Hayek and After: Hayekian Liberalism as a Research Programme, among others.

• Editorial PrefaceEditor’s IntroductionLaw, Legislation, and LibertyConsolidated Preface to the One-Volume EditionVolume 1    Rules and OrderIntroduction1          Reason and Evolution Construction and evolutionThe tenets of Cartesian rationalismThe permanent limitations of our factual knowledgeFactual knowledge and scienceThe concurrent evolution of mind and society: the role of rulesThe false dichotomy of ‘natural’ and ‘artificial’The rise of the evolutionary approachThe persistence of constructivism in current thoughtOur anthropomorphic languageReason and abstractionWhy the extreme forms of constructivist rationalism regularly lead to a revolt against reason2          Cosmos and Taxis The concept of orderThe two sources of orderThe distinguishing properties of spontaneous ordersSpontaneous orders in natureIn society, reliance on spontaneous order both extends and limits our powers of controlSpontaneous orders result from their elements obeying certain rules of conductThe spontaneous order of society is made up of individuals and organizationsThe rules of spontaneous order and the rules of organizationThe terms ‘organism’ and ‘organization’3          Principles and Expediency Individual aims and collective benefitsFreedom can be preserved only by following principles and is destroyed by following expediencyThe ‘necessities’ of policy are generally the consequences of earlier measuresThe danger of attaching greater importance to the predictable rather than to the merely possible consequences of our actionsSpurious realism and the courage required to consider utopiaThe role of the lawyer in political evolutionThe modern development of law has been guided largely by false economics4          The Changing Concept of Law Law is older than legislationThe lessons of ethology and cultural anthropologyThe process of articulation of practicesFactual and normative rulesEarly lawThe classical and the medieval traditionThe distinctive attributes of law arising from custom and precedentWhy grown law requires correction by legislationThe origin of legislative bodiesAllegiance and sovereignty5          Nomos: The Law of Liberty The functions of the judgeHow the task of the judge differs from that of the head of an organizationThe aim of jurisdiction is the maintenance of an ongoing order of actions‘Actions towards others’ and the protection of expectationsIn a dynamic order of actions only some expectations can be protectedThe maximal coincidence of expectations is achieved by the delimitation of protected domainsThe general problem of the effects of values on factsThe ‘purpose’ of lawThe articulation of the law and the predictability of judicial decisionsThe function of the judge is confined to a spontaneous orderConclusions6          Thesis: The Law of Legislation Legislation originates from the necessity of establishing rules of organizationLaw and statute: the enforcement of law and the execution of commandsLegislation and the theory of the separation of powersThe governmental functions of representative assembliesPrivate law and public lawConstitutional lawFinancial legislationAdministrative law and the police powerThe ‘measures’ of policyThe transformation of private law into public law by ‘social’ legislationThe mental bias of a legislature preoccupied with government  Volume 2    The Mirage of Social Justice7          General Welfare and Particular Purposes In a free society the general good consists principally in the facilitation of the pursuit of unknown individual purposesThe general interest and collective goodsRules and ignoranceThe significance of abstract rules as guides in a world in which most of the particulars are unknownWill and opinion, ends and values, commands and rules and other terminological issuesAbstract rules operate as ultimate values because they serve unknown particular endsThe constructivist fallacy of utilitarianismAll valid criticism or improvement of rules of conduct must proceed within a given system of such rules‘Generalization’ and the test of universalizabilityTo perform their functions rules must be applied through the long run 8          The Quest for Justice Justice is an attribute of human conductJustice and the lawRules of just conduct are generally prohibitions of unjust conductNot only the rules of just conduct, but also the test of their justice, are negativeThe significance of the negative character of the test of injusticeThe ideology of legal positivismThe ‘pure theory of law’Law and moralsThe ‘law of nature’Law and sovereignty9          ‘Social’ or Distributive Justice The concept of ‘social justice’The conquest of public imagination by ‘social justice’The inapplicability of the concept of justice to the results of a spontaneous processThe rationale of the economic game in which only the conduct of the players but not the result can be justThe alleged necessity of a belief in the justice of rewardsThere is no ‘value to society’The meaning of ‘social’‘Social justice’ and equality‘Equality of opportunity’‘Social justice’ and freedom under the lawThe spatial range of ‘social justice’Claims for compensation for distasteful jobsThe resentment of the loss of accustomed positionsConclusionsAppendix to Chapter Nine           Justice and Individual Rights10        The Market Order or Catallaxy The nature of the market orderA free society is a pluralistic society without a common hierarchy of particular endsThough not a single economy, the Great Society is still held together mainly by what are vulgarly called economic relationsThe aim of policy in a society of free men cannot be a maximum of foreknown results but only an abstract orderThe game of catallaxyIn judging the adaptations to changed circumstances comparisons of the new with the former position are irrelevantRules of just conduct protect only material domains and not market valuesThe correspondence of expectations is brought about by a disappointment of some expectationsAbstract rules of just conduct can determine only chances and not particular resultsSpecific commands (‘interference’) in a catallaxy create disorder and can never be justThe aim of law should be to improve equally the chances of allThe Good Society is one in which the chances of anyone selected at random are likely to be as great as possible11        The Discipline of Abstract Rules and the Emotions of the Tribal Society The pursuit of unattainable goals may prevent the achievement of the possibleThe causes of the revival of the organizational thinking of the tribeThe immoral consequences of morally inspired effortsIn the Great Society ‘social justice’ becomes a disruptive forceFrom the care of the most unfortunate to the protection of vested interestsAttempts to ‘correct’ the order of the market lead to its destructionThe revolt against the discipline of abstract rulesThe morals of the open and of the closed societyThe old conflict between loyalty and justiceThe small group in the Open SocietyThe importance of voluntary associations  Volume 3    The Political Order of a Free People12        Majority Opinion and Contemporary Democracy The progressive disillusionment about democracyUnlimited power the fatal defect of the prevailing form of democracyThe true content of the democratic idealThe weakness of an elective assembly with unlimited powersCoalitions of organized interests and the apparatus of para-governmentAgreement on general rules and on particular measures13        The Division of Democratic Powers The loss of the original conception of the functions of a legislatureExisting representative institutions have been shaped by the needs of government, not of legislationBodies with powers of specific direction are unsuited for law-makingThe character of existing ‘legislatures’ determined by their governmental tasksParty legislation leads to the decay of democratic societyThe constructivistic superstition of sovereigntyThe requisite division of the powers of representative assembliesDemocracy or demarchy?14        The Public Sector and the Private Sector The double task of governmentCollective goodsThe delimitation of the public sectorThe independent sectorTaxation and the size of the public sectorSecurityGovernment monopoly of servicesInformation and educationOther critical issues15        Government Policy and the Market The advantages of competition do not depend on it being ‘perfect’Competition as a discovery procedureIf the factual requirements of ‘perfect’ competition are absent, it is not possible to make firms act ‘as if’ it existedThe achievements of the free marketCompetition and rationalitySize, concentration and powerThe political aspects of economic powerWhen monopoly becomes harmfulThe problem of anti-monopoly legislationNot individual but group selfishness is the chief threatThe consequences of a political determination of the incomes of the different groupsOrganizable and non-organizable interests16        The Miscarriage of the Democratic Ideal: A Recapitulation The miscarriage of the democratic idealA ‘bargaining’ democracyThe playball of group interestsLaws versus directionsLaws and arbitrary governmentFrom unequal treatment to arbitrarinessSeparation of powers to prevent unlimited government17        A Model Constitution The wrong turn taken by the development of representative institutionsThe value of a model of an ideal constitutionThe basic principlesThe two representative bodies with distinctive functionsFurther observations on representation by age groupsThe governmental assemblyThe constitutional courtThe general structure of authorityEmergency powersThe division of financial powers18        The Containment of Power and the Dethronement of Politics Limited and unlimited powerPeace, freedom and justice: the three great negativesCentralization and decentralizationThe rule of the majority versus the rule of laws approved by the majorityMoral confusion and the decay of languageDemocratic procedure and egalitarian objectives‘State’ and ‘society’A game according to rules can never know justice of treatmentThe para-government of organized interests and the hypertrophy of governmentUnlimited democracy and centralizationThe devolution of internal policy to local governmentThe abolition of the government monopoly of servicesThe dethronement of politicsEpilogue: The Three Sources of Human Values The errors of sociobiologyThe process of cultural evolutionThe evolution of self-maintaining complex systemsThe stratification of rules of conductCustomary rules and economic orderThe discipline of freedomThe re-emergence of suppressed primordial instinctsEvolution, tradition and progressThe construction of new morals to serve old instincts: MarxThe destruction of indispensable values by scientific error: FreudThe tables turnedAuthor IndexSubject Index