Originally published: 1960
411 pages
Chapter 14

THE CONSTITUTION OF LIBERTY


Friedrich A. von Hayek

When he wrote The Constitution of Liberty Friedrich von Hayek intended to create an encyclopedic overview of how liberty is achieved in the modern world. At the time he was composing, capitalism and socialism, the two opposing economic systems then prevalent in the world, were in a fight to the death. Individual freedom was inevitably tied to free-market capitalism while collectivism was paired with socialism, thus in his discussion of liberty he necessarily had to consider economic paradigms as well.
     One of the methods used in his investigation was to encourage his readers look at common phenomena in a different light. He did this in order to demonstrate how the painfully obvious can be hard to grasp in an emotionally charged political atmosphere. He begins by examining the origin of modern ideas underpinning the liberal view (in its modern American, not classical European sense) of philosophy and economics. These novel consequences of twentieth-century political maneuvering, such as the development and power of the bureaucratic state, or legislation coined at the behest of special interests, he sees as part of the intellectual corruption of the governing purpose.
     This volume is the second First Principles-reviewed book authored by Hayek. In The Road to Serfdom Hayek explains how and why collectivist socialist schemes of governance cut against normal human impulses and are doomed to failure by the very nature of their mechanisms. In the present treatise Hayek dissects the fundamentals of liberty itself. What, exactly, is freedom? It seems a simple enough concept but understanding its mechanisms requires more than a superficial

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perusal. Offering a defined alternative in the philosophical arena to what he had deconstructed in the political arena in The Road to Serfdom seemed necessary.
     Beginning with an assessment of democracy as discussed by John Locke and David Hume in the seventeenth and eighteenth centuries, Hayek proceeds to examine its reality in the twentieth century. First, he explores the concepts of separation of powers and of checks and balances on the political side of the equation, and he finds that they are essential because of the foibles of human nature. Then he considers why these safeguards, which were designed to help remove arbitrariness from governing, are undermined in the massive and essentially unchecked modern bureaucracies that democracy has created. He argues that there are only two antidotes to the bureaucratization of government: an independent judiciary that can reign-in zealous regulators, and frequent open elections to keep politicians within the structural bounds that had been set in democracy's founding documents. Hayek states that an independent judiciary is essentially the last line of defense against an expanding and often arrogant bureaucracy. (In the twenty-first century we must consider if even this bulwark may be insufficient as the judiciary becomes more and more politicized, goal oriented, and as a result, increasingly disconnected from Constitutional restraint.)
     Hayek believes that any government that continues to grow administratively and bureaucratically is merely trying to correct the negative results of its last effort at ordering society by proclamation.
And in Hayek's view, democracies are only slightly less prone to using dictatorial tactics in creating and administering their laws than totalitarian societies are. The greatest danger is simply having good laws administered badly. Hayek calls for dismantling any portion of government that gets out of control either in terms of size or mission. He argues that this is one of the most effective methods of reorganization. Even if the department itself isn't abolished, when threatened with extinction bureaucrats (like human beings everywhere) often offer change and revision that make both good sense and good economics.
     As well, Hayek takes a keen interest in ensuring the executive side of government has its best chance at being honest. He defines the necessity of a sharp separation of the law-making effort conducted by the legislature-not the courts-from the application of policy effected by administrative agencies. He conjectures that if the lawmakers set rules that are applicable across the population, then, in theory, administrators will not be able to apply those laws so as to discriminate against

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or in favor of subgroups or classes within the population. Correcting abuses or errors in the execution of laws that might result from an aggressive executive Hayek again sees as the province of an autonomous judiciary. But he recognizes that only individual integrity will ultimately allow the system to work. Corruption-especially the petty and frequently rationalized intellectual kind, not fiscal thievery-is a barricade to sound and fair governance. The U.S. Constitution and the American state were designed for a moral people. The country could not be governed without this foundation and Hayek sees individual morality, and action, as the antidote to state corruption.
     Hayek also reminds readers of the inherent value of a written constitution: to express a body of rights that no legislature may infringe. These rights are so fundamental that only the people themselves may change them. With these basic rules embodied in a document, legislatures and courts have guideposts to keep both policy and administration within the bounds of equitable government. Hayek underscores the development of this concept through his investigation of the contrasting histories of the American and French Revolutions. He knew to fear temporary majorities (as did James Madison and Thomas Jefferson) and he consequently regarded a written constitution as essential.
     Hayek observes that the differences between the American Revolution of 1776 and the French Revolution of 1789 were based upon each country's distinct views of mankind. These disparate conceptions led to quite different historical outcomes. The contrasts are so important and so core to understanding self-government that they are assessed in First Principles by several authors.
     The American Revolution aimed to secure personal liberty; freedom from government as much as freedom for individuals. The Founders later made this standard their goal as they designed our written constitution. In France, the idea developed that power taken from the king and the upper class would be placed in the hands of the people, all the people, with the expectation that the people would naturally not abuse one another. But unfortunately that is exactly what people do in the absence of rules, no matter their station or education. They do this out of self-preservation, not out of venality.  If there are no rules it is every person for himself, thus we see self-protective, not simply selfish, behavior. The followers of Rousseau (the pure democrats) wanted to tear down established methods and institutions because they saw them as responsible for the corruption of human beings, not vice versa. In theory, if the institutions were demolished man's natural

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virtue would emerge. The French revolutionaries' unmodulated trust in the citizenry thus doomed their government to failure. In contrast, the American Founders' faith in a written constitution and laws better ordered natural human inclinations by keeping potential despots from unrestrained power and the populace from unrestrained self-interest. The people accepted submission to these rules, first, because they had written them, and second, because if the rules did not work they could be changed through a democratic process.
     When the French revolutionaries wrongly assumed that people would treat one another fairly and equitably pursuant to some enlightened or utopian impulse to do so they were unfortunately only reacting to the rule of the monarchy; they knew what they didn't want. Through removal of their inept king they hoped to create in the people that which they did want-a flowering of true brotherhood-Liberty, Equality, Fraternity. However, man's first unrestrained (morally or institutionally or by law) impulse is generally not toward equality or generosity and thus the French model failed, gloriously and ignominiously. The French learned that reasoned behavior and the civic culture necessary for self-government must flow from set rules not facile assumptions or hoped-for human behavior.
     After considering fundamental concepts of how government should be designed Hayek proceeds to examine equality-under the law and as an objective for individuals in a just society. He recognizes that unequal results in human achievement may tend to conjure simplistic notions of injustice, especially in the discourse of judgmental and self-aggrandizing demagogic politicians. In a society in which the dignity of each person-not one's station, or employment, or one's accumulation of goods-is the prime consideration, equality of opportunity can exist. Hayek understood that only those who exploit human differences will distort the idea of justice so that the goal of a just society is seen as equalitarian (with a desire for equal results) rather than egalitarian (with a goal of equal opportunity).
     Hayek addresses individual inequalities from a different angle. He asserts that equality is as undesirable as it is unrealizable. Attempting to achieve the unattainable requires each of us to forego who we are and what we can do in order to create something in which no one ultimately believes-a society where everyone is the same and has the same. He eventually arrives at the point of admonishing us against equalitarianism not because people are selfish (although that is obviously a part of human nature), but because individuals so differ with respect to their talents

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and ambitions.  The outcomes of their efforts will reflect their diversity and redound to the great benefit of everyone. Life is a group of facts and a series of choices. The former limits the latter. Hayek notes:

               Let us by all means endeavor to increase opportunities for all. But we
               ought to do so in the full knowledge that to increase opportunities for
               all is likely to favor those better able to take advantage of them and
               may often at first increase inequalities. Where the demand for "equality
               of opportunity" leads to attempts to eliminate "unfair advantages," it
               is only likely to do harm. All human differences, whether they are
               differences in natural gifts or in opportunities, create unfair advantages.
               But since the chief contribution of any individual is to make the best
               use of the accidents he encounters, success must to a great extent, be
               a matter of chance.

     The core ideal of modern American liberalism is equalitarianism-a theoretically noble but freighted and ultimately futile goal. As no two human beings are equally fit for all tasks (and some are fit for few tasks) achieving equal results can be attempted by fiat, but with no prospect for success. As Hayek notes, because we cannot control any given outcome even by decree, society is better off letting individuals freely adjust. Expressing this without appearing anti-egalitarian (or, in the
twenty-first century, politically incorrect) is difficult; it requires some attempt at discernment and sophistication by the observer. Often people won't come to the truth without help. They get stuck at the start of their reflections on inequality as they realize how putatively unjustly life favors some persons with better chances, better foresight, or better discipline. Plain old good luck is also a commodity that can no more be eliminated than can good sense. That there are differences in circumstances is a given: nature, planning, parents, and community have allowed some people better opportunities. Yet even when opportunity does knock, many cannot or will not open the door. Conversely, other people with seemingly no advantages and myriad disadvantages attain incredible success. We cannot take away the freedom to use the circumstances with which we are presented unless all of us become automatons.
     We also cannot take away anyone's success, no matter how great or small, because to do so would be impractical, unjust, and foolish. Would we discard all human progress because it comes from humanity's unequal distribution of ambition, talent, and intellect?

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     Chance, whether genetic or circumstantial or both, determines the place from which all of us start, but often goes unnoticed in our day-to-day affairs. It inexorably operates as a social lever. As Hayek notes, this seems so obvious, yet so difficult to grasp:

               Liberty not only means that the individual has both the opportunity and
               burden of choice. It also means he must bear the responsibility of his
               actions. Liberty and responsibility are inseparable. Liberty, by definition,
               also produces almost nothing but inequality in life, while demanding
               equality of opportunity and treatment. From the fact that people are
               inherently different it follows that, if we treat them equally they will
               achieve unequal results, thus the only way to place them in an equal
               position would be to treat them unequally.

     Part of Hayek's overview focuses on the concepts of Benthamism (utilitarianism-an attempt to achieve the greatest good for the greatest number of people) in addition to the equalitarianism of the French Revolution. He discusses the negative effects on liberty and democratic principles encompassed in both philosophies. With profound understanding he notes that it is "the French tradition, with its flattering assumptions about the unlimited powers of human reason, that has progressively gained influence." These assumptions about human reason versus human action and experience (which time has repeatedly shown are often not interchangeable) devolve into equally overconfident assumptions about the value and validity of specific products of human reason-socialism, equalitarianism, the welfare state. This is the theory: if we can think of a perfect society, we must therefore be able to implement it. It is the vanity of those who assume they know better than others (and want to control the lives of others for their ostensible betterment) that causes so much misdirection of the governing impulse.
     Hayek observes that the English tradition is the polar opposite of Benthamism (in spite of the fact that Jeremy Bentham was British). English tradition was based on empiricism; that is, the practice of deciding issues such as how a society will be governed by reference to what works in the real world. Empiricism's opposite-rationalism-was the foundation of the French Revolution. Rationalism assumes human beings can think through a concept logically and then implement it 

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in that form, irrespective of the human condition. As was obvious to Hayek, any society formed by
imperfect human beings of widely varying natures, views, talents, and goals will not fit well into some intellectual's view of what an individual's life should be. The opposition of empiricism to rationalism has marked the fight for liberty for more than two hundred years. The philosophical battles raging today between American conservatives and their liberal and neoconservative adversaries is a continuation of this struggle.
     To combat socialist and social-welfare impulses Hayek repeatedly emphasizes the importance of common democratic political tools: separation of powers, frequent elections, an independent judiciary, and checks and balances-all embodied in a written constitution. Hayek explains that the absence of these tools (or our failure to implement them consciously) enables the authoritarianism of planned societies and economies to exist. Doomed to failure, rationalist authoritarian government suffers from a fatal falsehood: its proponents deny the truth of the human condition, including our inherent differences (which have led to all of the world's material successes), and our intrinsic imperfectability. Rationalists, assuming a perfectible population, know that they can prove anything is possible, certainly anything as simple as creating the economic foundations necessary to a sound society. Hayek investigates the role government assumes in our economic relationships and how that involvement affects both the social fabric and our individual liberty. In The Constitution of Liberty Hayek explores every authoritarian fallacy. He calmly disproves the conclusions arrived at by people who fail to comprehend and deal with human nature as it is, rather than as they'd like it to be.

About the Book
The three indexes at the end of this University of Chicago Press edition of Hayek's work are unique. One offers an index of subject matter, the second is an index of authors, and the third (the most useful) is an analytical index of the table of contents. The latter allows one to quickly scan the political and philosophical content of Hayek's thoughts, and then go directly to a discussion of particular interest.

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About the Author
From economics (the field in which he won the Nobel Prize in 1974) to psychology, history, anthropology, and science, Friedrich August von Hayek amply demonstrated his intellectual abilities. In twenty-five books and numerous articles he established the breadth and depth of his insights and thoughts. Obviously he was no casual scholar. Born in 1899, he earned two doctorates at the University of Vienna by the time he was 24. Hayek met his intellectual partner, Ludwig von Mises, after his schooling was completed, although both were in Vienna while Hayek was a student. Along with others, Hayek and Mises eventually helped develop what became known as the Austrian School of Economics. This system of economic thought denounced and then intellectually dismantled socialism as a viable form of government or economics. Hayek taught in London (1930-50), at the University of Chicago (1950-62), and then again in Europe (1962-88) at the conclusion of his teaching career. Although an economist by training and interest, Hayek took a more fundamental view of the interconnections of society. His works, which initially concentrated on economic matters, broadened in later years to the point where he argued passionately for a liberal (free) society. In 1960 he published The Constitution of Liberty, his treatise on classical liberal political economy. Hayek died in 1992.

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University of Chicago Press
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www.uchicago.edu

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