Law, Legislation and Liberty

Law, Legislation and Liberty (1973–1979) is a work in three volumes by Nobel laureate economist and political philosopher Friedrich Hayek.

Background

Law, Legislation and Liberty is a book by Hayek that was written from 1963 to 1978. It offers a diagnosis of the problems facing classical liberal social order and suggests alternatives. The book includes critiques of legal positivism, interest-group politics, and the pursuit of social justice. Hayek argues that the pursuit of social justice leads to the loss of personal freedom, and he favors a common law approach to law. However, the book is not an easy read, and the second volume can be particularly heavy. Hayek suggests that readers should first read his The Constitution of Liberty before delving into the more detailed discussion in Law, Legislation and Liberty.^[1]

Contents

In Introduction, Hayek develops one of the key issues, the decline of constitutional constraints on government, and thus of limited government. In Chapter 1, Hayek discusses several key themes of the book, including the distinction between social orders that have evolved naturally and those that are designed by humans. He disagrees with the idea of Cartesian tradition that social institutions must be intentionally designed to be effective. He criticizes the notion that there is a clear divide between what is considered "natural" and "artificial". In Chapter 2, Hayek delves into his concept of spontaneous order, which depend on rules that people follow even though they are not aware of them. Chapter 3 discusses how various social benefits rely on following these rules, even if we don't understand their rationale. Hayek also warns against pursuing social reform without considering the importance of these rules and the potential dangers of disrupting social order. In Chapter 4, Hayek applies his ideas about spontaneous order and the importance of rules to the development of law. He argues that law should be seen as evolving from customary practices rather than solely from legislation. In Chapter 5, he discusses his view of law in more detail, emphasizing the importance of protecting certain expectations and the role of judges. Chapter 6 presents a contrasting view of law that is based on the rules of organizations rather than spontaneous order. Hayek discusses the relationship between these two forms of law and how the focus has shifted towards legislation, which he takes issue.^[1]

In Chapter 7, Hayek argues that it is important to follow general and abstract rules in an extended social order. He criticizes utilitarianism as a theory that appraises actions based on their consequences, and links it to the constructivism in social theory that he opposes. In Chapter 8, Hayek criticize legal positivism. Chapter 9 is a criticism of the ideal of social justice. Hayek questions the legitimacy of claims for social justice in a spontaneous order and argues that there can be no general rule for claims of social justice. He also argues that expecting prices to reflect merit or social justice is incompatible with the functioning of an extended market order. In Chapter 10 and Chapter 11, Hayek discusses the characteristics of the economic order he favors and the problems that arise when living in such a society. there is an Appendix, where Hayek critiques the UN Declaration of Human Rights and argues that some formulations of rights in the Declaration make sense only in a particular kind of social order.^[1]

In Chapter 12, Hayek discusses the issues that arise when democracy is seen as a system that allows for the unconstrained exercise of power by a majority, especially when this is coupled with politics based on coalitions of organized interests. In Chapter 13, Hayek examines how the idea of a legislative body has evolved over time and how it has moved away from older ideas about its proper scope and character. In Chapter 14, Hayek explores the legitimate role of government and the problems posed by government provision of services. In Chapter 15, Hayek discusses the competitive market process, the policy needed for it, and the dangers of relying on ideas of 'perfect competition'. Chapter 16 briefly sums up Hayek's general argument in the book so far.^[1]

Chapter 17 presents Hayek’s proposals for addressing the problems of the lack of limitations on government. He suggests a two-chamber governing body, each democratically elected, with one chamber tasked with formulating general rules under which the second chamber, concerned with the day-to-day conduct of government, would operate. Hayek explores the details of the arrangements he favors for the first chamber, which involve election by people when they reach the age of 45. Chapter 18 argues for the importance of local government in delivering concrete government services. 'Epilogue: The Three Sources of Human Values' restates Hayek's beliefs about the importance of rules and structures that have evolved over time, which are not innate or deliberately designed. This connects with Hayek's earlier discussion on evolutionary themes. He expands on this by criticizing Freudian and Marxian perspectives.^[1]

Table of contents

• Consolidated Preface
• Introduction

Vol. 1: Rules and Order (1973)

1. Reason and Evolution

2. Cosmos and Taxis

3. Principles and Expediency

4. The Changing Concept of Law

5. Nomos: The Law of Liberty

6. Thesis: The Law of Legislation

Vol. 2: The Mirage of Social Justice (1976)

7. General Welfare and Particular Purposes

8. The Quest for Justice

9. 'Social' or Distributive Justice

10. The Market Order or Catallaxy

11. The Discipline of Abstract Rules and the Emotions of the Tribal Society

Vol. 3: The Political Order of a Free People (1979)

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

See also

• Austrian School of economics
• Philosophy of law
• Catallaxy

References

External links

• Podcast featuring Prof. Don Boudreaux Donald Boudreaux discusses Law, Legislation and Liberty on EconTalk.

de:Friedrich August von Hayek#Recht, Gesetz und Freiheit (1979)

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