Abstract
Friedrich Hayek devoted the later part of his career to investigating the legal rules required for the existence of a free society. The subject of this paper is Hayek’s treatment of legal positivism, which he thought was the most important intellectual movement responsible for the decline of liberal institutions in Europe in the early twentieth century. As shown in the paper, Hayek’s critique consists of two separate arguments: that legal positivism destroys the rule of law and that it amounts to constructivism. The first claim rests on the assumption that “true” laws comply with the rule of law principle, although the meaning of the adjective true is ambiguous. The second claim holds only for a particular variant of legal positivism. In addition to discussing these issues, the paper provides an assessment of Hayek’s own evolutionary theory of law, which was intended as an alternative to both legal positivism and natural law theory.
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Notes
For an overview of Hayek’s work, see Caldwell (2004).
Another prominent critic of legal positivism is Ronald Dworkin (e.g., Dworkin 1967). Critics of legal positivism can also be found among the proponents of modern schools of natural law, hermeneutics of law, postmodernism, critical legal theory and legal realism.
A valid law is a law, while an invalid law is not. Validity refers to the fact that a law has the normative consequences it purports to have (Raz 1977).
Here, the term natural law theory refers to the normative evaluation of laws. It may also refer to the laws of nature, i.e., positive claims about regularities in the natural world. On this distinction, see Nientiedt (2019). On the connection of Hayek’s ideas to the laws of nature, see Angner (2007).
Hayek’s account coincides with a popular narrative among German legal scholars. In the aftermath of the Third Reich, Gustav Radbruch famously turned against legal positivism, proclaiming that “positivism, with its principle that ‘a law is a law’, has in fact rendered the German legal profession defenceless against statutes that are arbitrary and criminal” (Radbruch 2006, p. 6). Hayek was aware of Radbruch’s argument and repeatedly referred to it.
In the preface to the 1976 edition, Hayek indicates that he wasn’t fully aware of Kelsen’s writings at the time (Hayek 2007, p. 55).
The author would like to thank Jeremy Shearmur for pointing him to the manuscript and the estate of F. A. Hayek for permission to quote from it.
If a law does not conform to these principles, it does not have the status of law. This is expressed by the phrase Lex iniusta non est lex—an unjust law is no law at all (see Finnis 2011, pp. 351–366).
While it is unclear what prompted Hayek’s decision, it was not based on Hallowell’s 1943 book (where the English school does not play a role). As pointed out by a reviewer, the command theory is a classical topic in the common law literature (e.g., Pound 1921), which is where Hayek may have encountered the subject.
This expression taken from Barry (1979).
In The Constitution of Liberty, Hayek says that for legal positivism, “law by definition consists exclusively of deliberate commands of a human will” and a law is that which states “that whatever a certain authority [does] should be legal” (Hayek 2011, p. 346).
As pointed out by Ronald Hamowy (1961), the rule of law should not be seen as a sufficient condition for individual freedom because some tyrannical laws meet Hayek’s criteria for the rule of law.
Some scholars argue that these attributes pertain to the form of the law rather than its content. For the purpose of the present discussion, this distinction is relatively unimportant: “The validity of legal norms cannot depend on their merits even if their merit does not lie in their content but lies rather in their form, eg in the extent of their compliance with rule-of-law standards” (Gardner 2012, p. 31).
In the Cairo lectures, Hayek attributes this distinction to Albert Hänel (1888). However, Schmitt expresses Hayek’s contention much more clearly. Note that although Hayek makes use of Schmitt’s distinction, their preferences are different. Hayek favors laws that meet the rule of law criteria (true laws), while Schmitt does not. Schmitt’s ideal totalitarian state is unconstrained by the rule of law (see, e.g., Schmitt 1998, p. 217).
On a related note, Hayek also criticizes Kelsen’s use of the term Rechtsstaat. This seems to be based on a misunderstanding. According to Hayek, Kelsen uses the term to denote a state of law, thus claiming that “the rule of law prevails of necessity in every state” (Hayek 1976, p. 50 fn 56). While Kelsen uses the term in this sense, he is clearly aware of the double meaning and differentiates the “formal” term Rechtsstaat (a state of law) from its “material” meaning (the rule of law—Kelsen 1925, p. 91).
The Counter-Revolution of Science was published in 1952. For the most part, the book is concerned with criticizing logical positivism, not legal positivism. Hayek points to legal positivism only once: “I believe that quite a good case could be made out that [Comte and Hegel] are among the main sources of the modern tradition of legal positivism. It is, after all, only another manifestation of the same general attitude that refuses to admit anything as relevant which cannot be recognized as the expression of conscious reason” (Hayek 1952, p. 202).
When applied to the organization of society as a whole, these two principles are referred to as cosmos (spontaneous order) and taxis (planned order). See Hayek (1973, pp. 35–54).
Notably, Hayek treats Hart as if he were not a legal positivist. He speaks approvingly of Hart’s notion of a “minimum content of natural law” (Hayek 1978a, p. 21 fn 25) and says that Hart’s work “in most regards appears to me one of the most effective criticisms of legal positivism” (Hayek 1976, p. 56).
This is expressed particularly clearly in Hayek (1978b): “Universalizability in this connection means that we can will that the rule which we want to test should be universally applied. And the obstacle which may make it impossible to will this can only be that the endeavour to apply the rule generally or universally will lead to conflict with some other rule which we wish to maintain” (pp. 13–14).
The author would like to thank Todd Zywicki for pointing this out to him.
“According to [legal positivism], all law, in its concrete form, is founded upon the express enactments of the supreme power” (Savigny 1831, pp. 22–23).
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Acknowledgements
This paper was written during my stay as a research fellow at the Center for the History of Political Economy at Duke University. I’m grateful to the faculty and staff of the Center for their hospitality and support of this project. Earlier versions of the paper were presented at colloquia at New York University (2 December 2019) and Duke University (24 January 2020). I would like to thank the participants for their helpful comments, in particular Bruce Caldwell, David Harper, Sanford Ikeda, Steven Medema, Maria Pia Paganelli and Mario Rizzo. Valuable comments were also received from Niclas Berggren, Hartmut Kliemt, Nadia Nedzel, Jeremy Shearmur, Viktor Vanberg, Todd Zywicki, and two anonymous referees.
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Nientiedt, D. Hayek’s treatment of legal positivism. Eur J Law Econ 51, 563–576 (2021). https://doi.org/10.1007/s10657-021-09684-8
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DOI: https://doi.org/10.1007/s10657-021-09684-8