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Subject Area: Political Theory

Hayek and the Rule of Law - Leonard P. Liggio, Literature of Liberty, April/June 1979, vol. 2, No. 2 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Hayek and the Rule of Law

William Baumgarth

  • Fordham University

“Hayek and Political Order: The Rule of Law.” Journal of Libertarian Studies 2 (Winter 1978): 11–28.

This critical essay examines Hayek's views on the superiority of evolved rather than designed social order, on the function of rules in society, and on the nature of coercion.

Hayek believes that the rules governing human conduct are not and cannot be fully comprehended by a single mind; nor can the agent calculate all the consequences of any particular action. One chooses not between action having different sets of consequences but between actions whose consequences are relatively more or less certain. Social rules function to reduce avoidable uncertainty and to permit ‘harmonious interchange’ between agents; they make possible relatively accurate predictions of consequences. Social rules therefore differ from commands; they do not subject the agent to the will of another.

According to Hayek, if someone is coerced, then his mind has become the tool of another's will. Moreover, withholding the good is coercive only if the other has a monopoly over some good or service “crucial to my existence or the preservation of what I most value.” The state, therefore, need not be coercive: its manipulation of the facts and circumstances of my action is not a substitution of another's will for my own; that the impersonal social forces bring me to take a job I do not like or to pay a dollar for a gallon of gasoline does not entail that I am coerced. The situation results from impersonal social forces rather than an individual's action aimed at making me do his will; and the social forces are neither just nor unjust: only the actions of individuals can be so categorized.

The criticisms in this paper concern Hayek's defense of the state, and his view that the rules which reduce avoidable uncertainty define rather than derive from rights. Baumgarth argues that Hayek's conception of coercion is both too narrow and too wide in application: the clause ‘preserving what I most value’ brings into the concept instances most would regard as not coercive; the exclusion of the state's limitations of individual choice eliminates instances most regard as coercive. Baumgarth suggests that Hayek may have overstated his case in claiming that evolved rather than designed orders or rules are neither just nor unjust. He further points out that the concept of substantive rights (deemed morally and conceptually prior to law) might more effectively function as a check on uncertainty as well as a brake on the power of the state.