Friedrich A. Hayek, “The Legal and Political Philosophy of David Hume” (1967)

Hayek’s work is a public lecture/standalone essay; its scope is Hume’s jurisprudence and politics as the missing center of the British liberal tradition. It begins by attacking the historiographical convenience of a single “Enlightenment,” since Hayek wants to separate French constructivist rationalism from the Scottish-English concern with evolved institutions.

It is always misleading to label an age by a name which suggests that it was ruled by a common set of ideas.

Against the view of Hume as merely an epistemologist, or as a Tory historian, Hayek presents him as the chief theorist of Whig liberalism: liberty under law, not democratic omnipotence. Bentham and Austin, in this account, led jurisprudence toward Continental rationalism; Hume had already supplied a deeper alternative.

This is the more remarkable as Hume gives us probably the only comprehensive statement of the legal and political philosophy which later became known as liberalism.

The essay’s structure moves from intellectual genealogy to Hume’s theory of justice, then to rule-of-law politics and finally to Hume’s later eclipse by Rousseau. Hayek’s central conceptual move is to read Hume’s skepticism positively: because reason cannot construct society from explicit premises, philosophy must explain the rules by which social order grows.

What he produced was above all a theory of the growth of human institutions which became the basis of his case for liberty and the foundation of the work of the great Scottish moral philosophers, of Adam Ferguson, Adam Smith and Dugald Stewart, who are today recognized as the chief ancestors of modern evolutionary anthropology.

For Hayek, Hume’s legal philosophy begins from scarcity, limited generosity, and partial affection. Justice, property, transfer by consent, and promise-keeping are “artificial” only in the sense that they are artifacts of cultural evolution, not innate truths or legislative designs. Their value is systemic: particular acts may disappoint immediate interest, but the stable convention makes cooperation possible.

Law and morals, like language and money, are, as we would say, not deliberate inventions but grown institutions or ‘formations’.

This also makes Hume anti-contractarian. Government presupposes rules of justice; it cannot be their source. Hayek stresses that Hume avoids deriving an ought from an is: he argues instead that the goods we prize depend on conditions not designed for them. Hence the importance of general, abstract rules. Law must not distribute by merit, need, or “fitness,” because such judgments reintroduce arbitrary discretion and destroy the order law exists to secure.

The rules of law, however, ‘are not derived from any utility or advantage which either the particular person or the public may reap from his enjoyment of any particular goods. . . . Justice in her decisions never regards the fitness or unfitness of objects to particular persons, but conducts herself by more extensive views.’

The political doctrine follows directly: free government is a government of laws, not men. Hayek links Hume to the later Rechtsstaat tradition and even suggests that Kant’s universality may owe more to this legal inheritance than the reverse. Liberty is not identified with popular sovereignty, but with the restraint of discretionary power by known, equal, general rules.

In this sense, it must be owned that liberty is the perfection of civil society.

The closing contrast with Rousseau gives the essay its polemical edge. Both thinkers resisted rationalism, but Rousseau’s contractarian democracy prevailed, submerging the older liberal ideal of limited government. Hayek’s Hume is therefore relevant as a corrective to projects of positive social justice imposed by political will. Peace, liberty, and justice are not gifts of design but protective conditions sustained by evolved rules.

He knew that the greatest political goods, peace, liberty, and justice, were in their essence negative, a protection against injury rather than positive gifts.

Hayek’s final claim is that Hume’s philosophy is “negative” only in the sense most necessary to liberalism: it disciplines political ambition by the limits of knowledge and shows how imperfect people can nevertheless form a durable order when coercion is bound by law.