Hayek’s essay, first published in Il Politico in 1967, is a reconstruction of liberal constitutionalism rather than a commentary on any single constitution. Its central claim is that modern democracy has emptied the separation of powers of its original liberal purpose. That purpose was not merely to distribute offices among branches, but to confine coercion to general, prospective, impersonal rules.
The device by which the founders of liberal constitutionalism had hoped to protect individual liberty was the separation of powers.
For Hayek, the familiar tripartite formula fails once “law” is defined by the institution that issues it rather than by the kind of rule it is. If whatever a legislature resolves counts as law, then the rule-making body can also command, administer, favor, tax, and redistribute without meeting the liberal test of generality. The separation of powers becomes formal rather than substantive.
The separation of powers as we know it has failed to achieve this end.
The deeper error is theoretical. Hayek attacks the inherited doctrine of sovereignty: the assumption that every legal order must culminate in an unlimited will. This, he argues, imports absolutism into democratic form. Power need not be checked only by another power; it can be limited by the objective character of the actions it is permitted to take.
In the last resort it rests on the misconception that the ultimate ‘sovereign’ power must be unlimited, because, it is thought, power can be checked only by another power.
Against democratic sovereignism and legal positivism, Hayek revives the older distinction between law and command. Law is not a means of securing selected social outcomes; it is an abstract rule of just conduct applied to unknown future cases. A genuine lawgiver demonstrates belief in the justice of a rule by accepting its universal application, including cases he cannot foresee or manipulate.
In this sense law was to rest on the opinion that certain kinds of actions were right or wrong and not on the will to bring about particular results.
This distinction frames Hayek’s criticism of Rousseau and of modern majority rule. He does not reject democratic authorization, but he rejects unlimited democratic government. Majority decision is legitimate only within a constitutional order that prevents coercion for particular ends. A free society requires a protected private sphere in which persons are not instruments of government policy.
The essay’s institutional proposal follows from that diagnosis. Hayek argues for two representative assemblies: one governmental, partisan, and programmatic, responsible for services, budgets, and administration; the other genuinely legislative, charged only with articulating universal rules of just conduct. His proposed lawmaking chamber would be insulated from party competition and short-term electoral bargaining, partly through long non-renewable terms and election by age cohorts.
Taxation illustrates the design. The governmental assembly could decide how much to spend, but the lawmaking assembly would determine the general rules by which burdens are distributed. This prevents coalitions from shifting costs onto targeted minorities while preserving democratic control over common purposes.
Hayek calls the resulting order “demarchy”: rule by the people, but only through general laws. The essay’s continuing challenge is that electoral legitimacy alone is not liberal constitutionalism. Democratic power must prove its justice by taking the form of stable, known, general rules rather than commands aimed at particular persons, groups, or distributive outcomes.
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