What Friedrich A. Hayek sought with his three volumes of Law, Legislation and Liberty was to propose a legal-political system in which the Rule of Law principle would not be de facto replaced by the rule of men through laws (Rule by Law).
To do this, he built a recursive model of a legal system whose initial conditions were the legal customs as the only source of law. Thus, in such a system, the rule of recognition –in the sense of H.L.A. Hart’s concept– would initially regard the customary law as the only set of rules to be enforced by the government.
In the said model of legal system, the law is separated from the state, which enforces the former and legitimises itself by that enforcement. Sovereignty resides in the law and the state is its agent and executor – but, without the said enforcement, the customary law -the initial condition of the recursive model- would only be natural law.
From a genealogical point of view, in Middle Ages monarchs were entitled as rulers by a law of succession derived from customary norms and it is from that mediaeval period that the term “Rule of Law” comes: Since their prerogative of ruling had come from legal customs, the rulers had the moral duty of enforcing them – which, in turn, acted as a limit to the power of the rulers, or at least to their legitimacy.
Evolutionarily, the administration of public affairs -as related by Max Weber in his General Economic History– ceased to be in the hands of wise men and mandarins, advisers to the monarchs, to become a matter managed by jurists, who incorporated for the decision-making and its justification the procedures and figures of private law: the social contract, the commission, decisions based on evidence, etc.
Such evolutionary emergence of the public law set new boundaries to the legitimate use of power by the rulers, in many occasions needing a written document to warrant them, such as the Magna Carta, the Bills of Rights or the declarations inserted in the Modern constitutions.
Consequently, successive layers of legality were added to the initial conditions of Hayek’s model of political legal system: constitutional laws, declarations of rights, principles and guarantees, procedural laws and statutes. It was these same legal concepts of private law that allowed giving a legal foundation to the nascent republics of the Late Middle Ages, for example, the legal figures of association, representation, etc..
However, Hayek already complained in The Constitution of Liberty –and later in Law, Legislation and Liberty again- about the consequences of the sovereignty of parliaments, that is, the competence of the legislative chambers to enact laws, replacing legal customs. It was the principle of popular sovereignty that rendered obsolete the principle according to which customary law acted as a limit to the rulers separated from the people, since the people went on to govern themselves and make their own laws.
This emancipatory narrative -in terms of Jean Francois Lyotard- collides with the evidence that, on numerous occasions, we do not obtain in return the Rule of Law but rather the rule of men through laws emanating from political will. Consequently, the path is open for critics of the Rule of Law to denounce its inconsistencies: a government of laws created by the rulers themselves is a mere masking of the political will, which is not legitimated by law but by the pure imposition of the force.
That is why the ultimate message of Hayek’s legal and political works consists of a sort of return to initial conditions of his model of relations between law and politics: legal norms are ineffective without the enforcement provided by the public force, but the process of creating them can be disentangled from that enforcement.
Of course, the choice by the political system on which norms to enforce -that is, the enunciation of a rule of recognition- can mean in itself an act of creation of law; but if, on the other hand, a constitutional system foresees the separation of the legislative functions from the functions of government, obliging the latter to enforce the laws emanating from the former, the distinction between the Rule of Law over the rule of the men is restored.
As Hayek himself recognized in his work, his proposal to create two separate assemblies, one legislative and the other governmental, is not really a proposal intended to be put into practice, but rather an ideal model that exemplifies a concept that is as fundamental as it is abstract and elusive: the separation between law and political power.
Beyond the feasibility of Hayek´s model, it does provide a demarcation criterion between liberal democracy and authoritarianism: the one that indicates that the main duty of a government towards its citizens is to enforce the rules of peaceful coexistence that respect the so-called fundamental rights, such as life, personal liberty and property, and that any program of social transformation or economic development can never justify their abrogation. Thus, any rulers who do not take into account such institutional restrictions to their policies would be involved in a true road to serfdom.
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Does the mandate of heaven care about the theory of government?