Friedrich August von Hayek: Review of The Decline of Liberalism as an Ideology (August 1944)

Hayek’s review of John H. Hallowell’s study of German politico-legal thought assesses both its historical scholarship and its conceptual account of liberalism’s decline. His judgment is qualified but adverse: Hallowell identifies important problems, especially in the transformation of the Rechtsstaat, yet lacks the historical grounding and terminological precision needed to explain them.

The opening establishes why Germany presents a distinctive historical problem:

Few studies in the history of ideas could be more interesting and instructive than a really good account of the decline of liberalism in Germany—a decline which started before it had taken roots outside the realm of theory and closely connected with the fact that to Germany liberalism came not before but simultaneously with nationalism and socialism.

This conjunction makes liberalism’s decline a question of historical relationships, not simply a sequence of legal doctrines. Hayek accepts Hallowell’s narrower legal scope as a legitimate subject for a monograph. His objection is instead to dependence on secondary authorities and insufficient engagement with original texts. The treatment of Fichte exemplifies the weakness: early liberal views cannot, for Hayek, justify dismissing Fichte’s significance as a precursor of National Socialist ideology without confronting his Geschlossene Handelssstaat.

The review then moves from historical method to conceptual discrimination. Hayek accepts the importance of Hallowell’s connection between liberal decline and positivism, but argues that “positivism” groups together attitudes whose relationship has not been demonstrated. His sharper objection concerns the conflation of constitutional enactment with legal generality:

With regard to the concept of "formal" law the ambiguity is even more serious; the term appears to be used to describe two aspects of law which are certainly different and perhaps sometimes even contradictory; on the one hand the fact that a rule has been imposed by the proper constitutional machinery, and on the other that it is a true general rule, meant to apply to yet unknown people in circumstances which cannot be foreseen in detail and in this respect different from any legislative measure designed to achieve a specific end.

This distinction is the review’s most substantive conceptual contribution. A measure’s passage through authorized procedures does not establish that it is a general rule governing unforeseen cases. By separating procedural validity from generality, Hayek identifies what an account of liberal legal decline must clarify before it can explain historical change.

The conclusion grants the study a limited value in directing attention to neglected questions, while rejecting its claim to establish when and how liberalism became decadent. The review’s relevance lies in its joined demands for original-source scholarship and precise legal concepts: an adequate history must distinguish changes in the machinery of lawmaking from changes in the character of law itself.