THE SOURCE OF LAW AND THE RULE OF LAW ACCORDING TO FRIEDRICH VON HAYEK
With two doctoral degrees, one in law (1921) and the other in social sciences (1925), a Noble prize for economy (1974) and a diverse, broad written work, Friedrich von Hayek (1899-1992) remains one of the great thinkers of the 20th century. Hayek was a wide-ranging, eclectic personality, with multidimensional scientific approaches, reclaimed by jurists, philosophers, economists and sociologists alike. His well known work Law, Legislation and Liberty, in three volumes, represents a legacy of human genius diligently spent in realizing a synthesis of social sciences.
Any approach undertook by Hayek is inherently generous and inspirational. We will emphasis here on his approach towards explaining the origin of law and the rule of law.
Hayek’s research is rooted in his liberal philosophy and is solidly anchored in the works of Mandeville, Spinoza, Locke, Montesquieu, Kant, Tocqueville, Hume, Smith, Mill, etc.; from A. Smith and J. S. Smith in particular, he understands the concepts of natural order and natural laws game. Hayek wanted to advance further in studying these concepts. He wants to know what is liberty and how does it manifest within the GREAT SOCIETY, the civilized society of the 20th century. In order to advance his studies, he establishes a different analysis pattern, namely a social individual. This individual is different from the selfish, cold and harsh individual encountered in the economic, social and political philosophy works of the great classical thinkers. Hayek’s individual possesses “deference for the other” and also selflessness. The social individual is determined by the same desire as his predecessor from the pre-modern era – to satisfy its own interests. The pattern used in his actions is that dictated by the social order instead of natural order. Hayek accepts the logic of classical technology through which individual interests and the social interests are reconciled. He agrees with A. Smith who firmly believed that by pursuing his own interest, each individual contributes to achieving general interest better than if he would have made it his specific goal and or planned a priori; still he considers that this attitude reflects only a facet of social order origin, which is “not fabricated by people, that really exists … but is not observable in a concrete way, it cannot be detected by intellect alone”. Even if it is not fabricated by people, or precisely because of it, it is a noteworthy source of social order, a source that confers its necessary spontaneity feature and concurrently contributes to the reconciliation process; but social harmony is not predetermined. It represents a result and to achieve that result, namely a positive result, is not simple as the starting point is really a federation of private interests belonging to different individuals, private entities that are different through inherent human nature. Human nature is diverse, but also contradictory, a game of scales, minuses and pluses, a game in which selfishness or generosity, the desire to work or comfortableness, ownership sense or detachment from profit or wealth, etc. can coexist within the same individual. In such circumstances, the guidance of the “invisible hand” is not sufficient to reach a balance. If we would be satisfied with this guidance, the prevailing tendency would be the sweet anarchy of absolute liberty. Or, as the world is made up of imperfect individuals and each individual is also a sum of contradictions, no matter how attractive the anarchy might seem, it is impossible in real world. It is not possible because people’s liberties can create a state of conflict. In order to prevent such actions and one’s freedom does not affect the other one it is necessary to: “… through a selection process, certain rules to determine people to act in such a manner that social life is possible”.
It is obvious that Hayek, an ultraliberal philosopher and economist, starts from the natural order in building (theoretically) the social order edifice. This approach ensures the social organism with the spontaneity feature needed and also provides internal dynamic by acquiring the necessary self-sustaining features. Hayek reluctantly admits certain interferences and engineering from the norm. And he is forced to admit the normative, interventionist element because: “… I admit such rules to be followed by all individuals in a society because the environment in which they live is reflected in the same way in their spirit. Other rules will be spontaneously applied because will be part of the common tradition”. But, as he underlines: “there are other rules he will be bound to respect as each person interest is engaged in order to violate their order, that ensure the efficiency of actions, and will not be established if these rules are not generally respected”.
With his renowned elegance, Hayek states that society does not stand a chance to function if individuals do not accept to respect rules that are not necessarily connected with an individual philosophy of life or way of understanding the world, namely the rules of law, with determined origin and which are inherent to the norm and conventional. Hayek does not draw a clear line between the rules connected to natural and spontaneity on one hand and the rules of law, on the other hand. His liberal background compels him to leave the entire task of balancing the rules to the individual. In his opinion the achievable dynamic resulted from promoting the individual interests seems more connected to natural and matter-of-course approach. Only when achieving individual interest becomes contrary to one or another or when it exceeds the understanding and awareness of the necessity to respect the rules is the norm accepted. And it is accepted because: “then the family, farm, workshop, firm, society and different associations … become organizations that are in turn integrated in a spontaneous, wider order”, also called the Great Civilized Society.
Hayek, as a liberal wishes that the normative element, whose equivalent in the organizational pattern is the government, to have a minimal profile or even be absent; he knew really well what statism means and he also experienced realities that pushed him to write The Road to Serfdom, an unmatched anti-state and anti-totalitarian manifesto demonstrating the monstrous side of state intervention. Even accounting this restraint he never acts as an anarchist.
He wants state only under the rule of law formula, a state in which the “government assumes the task … to observe the rules according to which the spontaneous order is established and … to realize other services that spontaneous order is not able to adequately provide”. In other words, a state that coerces everyone to look beyond its own perimeter: rules that concern all, but not each one in particular.
The entirety of these rules, assumed by everyone and on which the function of the polis is conditioned, provides structure to the social contract. An exquisite analyst, Hayek observed that: “… there is a sense in which the liberty of contract is an important part of individual liberty, however, this expression creates certain confusion; firstly, the problem is not related to the type of contracts individuals have a right to conclude but rather what contracts will be respected by the state”. No modern state, underlines Hayek, “tried to impose all contracts; it would not be desirable to happen. Signed contracts with immoral or criminal goals, contracts that imply acquiring indefinitely the services of a person, even some contracts that require specific results or are supported in their implementation by the public action?”.
Hayek tries to state that civilized society does not endure outside the contract, but not any kind of contract provides social harmony and order. Those contracts that harm the social order and harmony or endangers individual or common interests must be sanctioned. In this case, the law offers support as the law is the foundation of the lawful state. “The enforceable feature of contracts is a tool provided to us by the law – observes Hayek – and it has to be the one establishing what consequences result from signing a contract”.