Front Page Titles (by Subject) Criticisms of Hayek\'s Universalizable 'Rule of Law' - Literature of Liberty, Winter 1982, vol. 5, No. 4
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Criticisms of Hayek's Universalizable ‘Rule of Law’ - Leonard P. Liggio, Literature of Liberty, Winter 1982, vol. 5, No. 4 
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.
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Criticisms of Hayek's Universalizable ‘Rule of Law’
This fundamental criticism of Hayek, stated powerfully by Hamowy77 and Raz78 and endorsed in eariler writings of my own,79 now seems to me to express an impoverished and mistaken view of the nature and role of Kantian universalizability in Hayek's philosophical jurisprudence. It embodies the error that, in Hayek or indeed in Kant, universalizability is a wholly formal test.
In his “Principles of a Liberal Social Order,” (A-115, in B-13) Hayek tells us: “The test of the justice of a rule is usually (since Kant) described as that if its ‘universalizability,’ i.e. of the possibility of willing that rules should be applied to all instances that correspond to the conditions stated in it (the ‘categorical imperative’).”80 As an historical gloss, Hayek observes that:
It is sometimes suggested that Kant developed his theory of the Rechtstaat by applying to public affairs his conception of the categorical imperative. It was probably the other way round, and Kant developed his theory of the categorical imperative by applying to morals the concept of the rule of law which he found ready made (in the writings of Hume).81
Hayek's own argument, that applying Kantian universalizability to the maxims that make up the legal order yields liberal principles of justice which confer maximum equal freedom upon all, has been found wanting by nearly all his critics and interpreters. Thus Raz quotes Hayek as follows:
“The conception of freedom under the law that is the chief concern of this book rests on the contention that when we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free. It is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule... As a true law should not name any particulars, so it should especially not single out any specific persons or group of persons.”
Raz comments on this passage: “Then, aware of the absurdity to which this passage leads, he modifies his line, still trying to present the rule of law as the supreme guarantee of freedom...”82
Similarly, discussing Hayek's criteria that laws should not mention proper names and that the distinctions which the law makes be supported both within and without the group which is the subject of legislation, Hamowy comments:
That no proper name be mentioned in a law does not protect against particular persons or groups being either harassed by laws which discriminate against them or granted privileges denied the rest of the population. A prohibition of this sort on the form laws may take is a specious guarantee of legal equality, since it is always possible to contrive a set of descriptive terms which will apply exclusively to a person or group without recourse to proper names...83
How are these standard objections to be rebutted?
[77.] See footnote 76 above.
[78.] See footnote 76 above.
[79.] See my “F. A. Hayek on Liberty and Tradition,” cited in footnote 76 above.
[80.] Hayek, µB-13Õ, Studies in Philosophy, Politics and Economics, p. 168, ff.
[81.] Hayek, µB-13Õ, Studies, pp. 116-117.
[82.] Raz, “The Rule of Law,” µin Cunningham, ed.Õ, p. 19.
[83.] Hamowy, “Law and the Liberal Society,” pp. 291-292.