August von Hayek and the Constitution of the Liberal StateJune 27, 2021
The law arises in a community of free people. The law requires broad agreement based on general consensus about what is right and wrong.
According to Hayek, the rules of justice were not made by the king, but discovered by the judges. The purpose of the judge is not to reach a special result or to direct the resources of the society to a special purpose, but to maintain order.
Many so-called laws today are this type of administrative legislative activity, designed not to protect justice but to operate the administrative mechanism.
Putting Hayek’s laws in the hands of elected officials is like leaving the cream jar to the cat’s responsibility. He says that it will soon be obvious that there will be no laws left—at least in the sense of limiting the arbitrary power of the government.
The liberal tradition, to which Hayek includes himself, sets tight limits on powers for which the majority votes, so that majority rule is prevented from devolving into a tyranny.
The legislature must be strictly separated from the executive. Otherwise, it is clear that the executive will never make a self-limiting law against itself.