Friedrich August von Hayek, Decline of the Rule of Law, 1–2 (1953)

Hayek’s two-installment magazine article reconstructs the rule of law as a historically acquired ideal of liberty and argues that its meaning has been eroded by economic planning, administrative discretion, and legal positivism. The first installment traces the ideal from classical antiquity through English constitutional struggles; the second examines its Continental development and modern decline. His central distinction is between government merely authorized by legislation and government constrained by general, predictable rules. A legislature can legally confer arbitrary power: legality alone therefore cannot secure freedom.

Hayek begins with the loss of political wisdom through changes in vocabulary. Recovering the meaning of the rule of law requires recovering isonomia, the Greek ideal of equal laws for all. Through Elizabethan translations and classical political thought, he traces its passage into English constitutional language. Crucially, equality before the law is not identical with democratic government:

The Greeks fully understood that the two concepts, although related, did not mean the same thing.

Democracy can violate the principle that initially justified it. Hayek reads Aristotle’s opposition to government by popular decrees, and Demosthenes’ rejection of laws directed at individuals, as defenses of legal generality. The decisive question is not simply who governs, but whether rulers and citizens alike are subject to rules that do not discriminate among particular persons. Roman legal thought supplies another expression of freedom through obedience to law; imperial discretion, by contrast, illustrates its deterioration.

The English recovery of this tradition gives the argument its economic emphasis. Hayek presents the seventeenth-century conflict between Crown and Parliament as substantially a struggle against regulation and government-conferred monopoly. Restrictions on production created privileges by allowing some people activities forbidden to others. The Petition of Grievances of 1610 and Coke’s interpretation of Magna Carta accordingly connect economic freedom with certain laws and limits on executive discretion. This historical framing makes contemporary economic intervention appear as a renewed constitutional problem, rather than an issue separate from civil liberty.

Hobbes and Harrington represent opposing positions on government by laws rather than men. Locke, Hume, and later Whig writers develop the restraints on power that Hayek regards as the English achievement. Paley’s account of separated legislative and judicial functions provides its clearest rationale: legislators should establish general rules without knowing the particular individuals affected, while judges should apply those rules impartially. Hayek condenses this tradition into a distinction between law enabling individual purposes and law directing individuals toward official purposes:

That the law should be an instrument to be used by the individuals for their ends and not an instrument used upon the people by the legislators is the ultimate meaning of the Rule of Law.

Generality, advance knowledge, and restricted coercive discretion belong together. They allow individuals to anticipate state action and pursue their own ends. Yet these requirements cannot be secured merely by another legislative enactment:

The rule is rather a meta-legal principle which can operate only through its action on public opinion.

This dependence on public understanding explains both the ideal’s historical growth and its vulnerability. Constitutional safeguards lose their force when citizens and lawyers cease to distinguish laws consistent with liberty from whatever commands happen to be enacted.

The second installment follows Continental attempts to systematize English practice, particularly through the German Rechtsstaat. Hayek acknowledges shortcomings in England, including inadequate remedies against the state and insufficient safeguards against ordinary legislation. He also rejects Dicey’s identification of separate administrative law with a violation of the rule of law. Administrative courts could serve liberty by subjecting established bureaucracies to judicial control. The weakness lay instead in permitting courts to examine only whether officials remained within an authorized discretionary sphere, rather than whether their actions followed substantive legal rules.

Hayek does not demand the elimination of every administrative judgment. Measures against contagious disease, fire, or unsafe buildings may require discretion, expert evidence, and compensation for those compelled to sacrifice property. The governing distinction remains:

The important point is that the decision is derived from a general rule and not from particular preferences which the policy of the government follows at the moment.

An independent judge must be able to assess whether an official applied a general rule appropriately. This differs from discretion to pursue changing governmental objectives.

Hayek attributes the modern retreat chiefly to socialist attacks on formal equality and to positivist jurisprudence. Socialist redistribution, he argues, requires unequal treatment to correct unequal outcomes; comprehensive planning requires directing people and property toward particular tasks. Legal positivism removes the independent standards by which such legislation might be judged:

For legal positivism the concrete will of the majority on a particular issue became the only criterion of justice applicable in a democracy.

On this account, the Rechtsstaat becomes mere statutory authorization, compatible even with unrestricted government. Hayek links that conceptual emptying to Germany’s vulnerability to totalitarianism and warns against comparable arguments among British jurists. The article’s enduring conceptual contribution is its distinction between lawful power and power constrained by law. Its polemical claim is that social improvement pursued through discretionary direction threatens the constitutional conditions of liberty, even when democratic legislatures authorize it.