Law, Legislation and Liberty, Volume 1: Rules and Order

While Hayek is best known as an economist, he earned doctorates in law and political science. In the Law Liberty and Legislation trilogy Hayek returns to his intellectual roots. Here we see a detailed and insightful analysis of different types of political and legal order. Hayek contrasts free and prosperous spontaneous orders with coercive states that aim allegedly at social justice. In this first volume of Law, Liberty, and Legislation Hayek spells out the difference between general rules of conduct and policy that consciously aims at particular ends. Law, as a set of general rules of conduct, are essential to societal spontaneous order. Private law is, contrary to what it might seem, more important to securing a free and prosperous spontaneous order than is public law. Hayek became an economist by reading Carl Menger's "Principles". We can see Menger's influence all through this book. This is Austrian economics applied to law. Law Liberty and Legislation was intended to complete the case that Hayek made for classical liberalism in The Constitution of Liberty. This trilogy combines with the Constitution of Liberty to make a powerful case for strictly limited government and free enterprise. You should read The Constitution of Liberty before starting this trilogy, but be sure to read both. Hayek's analysis of spontaneous order and government planning is highly relevant. The collapse of the USSR might have made it seem that proponents of free social order had won. But it is all too obvious that the drive for "social justice" is gaining ground. Read Hayek along with Nozick and Buchanan. These ideas are vitally important.

Volume 3 of Law, Legislation, and Liberty is in part an attempt at identifying the reasons why, in Hayek's opinion, the principles of liberty he articulated in The Constitution of Liberty do not find greater subscription. Majoritarian democracy is not inherently just, since it is based on interests rather than justice. The majoritarian democratic system consists of people each pursuing their own interests: citizens want spending programs with others paying for them, elected officials generally want to be reelected, government workers prefer large over small government in order to enhance job security. The result is an aggregation of special interests, and not even the general, or common interest, let alone justice. The laws that end up being enacted are intended to serve specific administrative purposes rather than general principles. With a system of progressive taxation, the aggregate tax burden is no longer felt by the entire population. People end up exerting political pressure for expenditures for which they believe others will pay. In such a system, any normal type of cost-benefit analysis of government programs disappears. The inevitable result is an ever-growing government sector. The basis of the book is straight public choice theory (pp. 13-17 would make a splendid concise introduction to the field). Even a legislature elected by a democratic majority needs to have constitutional restrictions placed upon it, lest it become a form of tyranny. Hayek proposes "a model constitution" that attempts to rectify some of the shortcomings inherent in the existing democratic system. Laws should be general not specific. They should be about principles rather than benefits, i.e. they should protect citizens' life, safeguard their liberty, and help create an environment in which they are free to engage in the pursuit of happiness. Laws should not discriminate between different individuals or groups, not even based on their wealth or income. Laws passed must apply to everyone, including those who pass the laws, i.e. the legislature. This also goes for taxation: the burden of taxation is to be felt by all who benefit from the existence of government. Law, Legislation, and Liberty was intended as a sequel to The Constitution of Liberty, in that Hayek wrote it to "fill in the gaps" that he felt existed in his argument in that earlier work. He wrote and published Law, Legislation, and Liberty on and off over a time-span of approximately 15 years (early-mid 1960 to mid-late 1970s), which were in part interrupted by ill health. Hayek admits that the result is at times repetitive and lacking in organization. The reason why he did not go through the effort of redoing the entire work upon completion is because he thought he might at that rate never finish it (he was 80 years old by the time volume 3 was published). There are still plenty of great insights, which Hayek argues persuasively and in doing so manages to portray as common sense. T

The thesis of volume 1 of Law, Legislation, and Liberty is that "a condition of liberty in which all are allowed to use their knowledge for their purposes, restrained only by rules of just conduct of universal application, is likely to produce for them the best conditions for achieving their aims", and that "such a system is likely to be achieved and maintained only if all authority, including that of the majority of the people, is limited in the exercise of coercive power by general principles to which the community has committed itself" (p. 55). "[W]hat the spontaneous order of society provides for us is more important for everyone, and therefore for the general welfare, than most of the particular services which the organization of government can provide, excepting only the security provided by the enforcement of the rules of just conduct" (pp. 132-133). Therefore, "law is...to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions" (i.e., through preventing coercion), and it is not to be "the instrument of arrangement or organization by which the individual is made to serve concrete purposes" (p. 71). Law, Legislation, and Liberty was intended as a sequel to The Constitution of Liberty, in that Hayek wrote it to "fill in the gaps" that he felt existed in his argument in that earlier work. He wrote and published Law, Legislation, and Liberty on and off over a time-span of approximately 15 years (early-mid 1960 to mid-late 1970s), which were in part interrupted by ill health. Hayek admits that the result is at times repetitive and lacking in organization. The reason why he did not go through the effort of redoing the entire work upon completion is because he thought he might at that rate never finish it (he was 80 years old by the time volume 3 was published). There are still plenty of great insights, which Hayek argues persuasively and in doing so manages to portray as common sense. There are also plenty of flashes of that true rhetorical brilliance characteristic of Hayek that can make his writings such a feast to the ear and mind. On the downside, however, these rhetorical gems are hidden in a large volume of pages that at times do indeed seem tedious, repetitive, and unorganized, unlike with The Constitution of Liberty, where they literally seem to jump off the page at you. All in all, read The Constitution of Liberty first, as Hayek himself suggests. And if you're not up for reading the approximately 500 pages that make up the complete Law, Legislation, and Liberty, two chapters (30 pages total) in the book The Essence of Hayek make for a comprehensive summary exposition of the ideas in the entire trilogy ("Principles of a Liberal Social Order", ch. 20 in The Essence of Hayek, covers vols. 1-2, and "Whither Democracy?", ch. 19, covers vol. 3).

¿Por qué esta obra es tan importante y el autor, uno de los más serios de este siglo? Porque se trata de una comprension cabal del funcionamiento de nuestra civilización occidental. El libro (los tres volúmenes)es una desmitificación de ciertos conceptos harto conocidos, de clara tendencia socialista, a través de los cuales se ha pretendido transformar sociedades enteras. El concepto de justicia social es uno de ellos, en virtud del cuál se han encarado acciones políticas con resultados conocidos por todos. Esta obra de Hayek es la obra de alguien que ha entendido profundamente al ser humano y su sociedad, y que ha comprendido que es un estado de libertad su ámbito natural. La teoría de la Evolución, parece confirmarle esto al autor. De todos modos, uno se encontrará con grandes argumentos y exposiciones a partir de los cuáles, si es que todavía no se ha convencido de las bondades del liberalismo; tendrá un gran motivo para empezar a hacerlo.

Hayek's classical book is against the totalitarians and their thought about legislation. He responses them saying that the legislation is not the tool to reconstruct the people and the economical relationships between them, but it is the method to explain the irrationally and naturally developping law more clearly. Additionally he argues the cartesian method of thinking because of its results which refuse the social evolution. Therefore Hayek finds the philosophical base of totalitarian thought in the belief that "we can create the welfare with law, if we arrange it logically". That's why he calls every kind of totalitarian thought as "constructive cartesian rationalism", because all of them want to reform the whole world, law and order from the beginning to realize their specific outcome like in DesCartes' method. (I think that it's the same as "the social engineer" description of Sir Karl Popper.)