December 11, 2004
The basis for legitimacy says Hayek in a constitutional system is the existence of a system of laws that cannot be easily changed. The basis of legitimacy is the rule of law, not popular sovereignty.
A quote:
"The fundamental distinction between a constitution and ordinary laws is similar to that between laws in general and their application by the courts to a particular case: as in deciding concrete cases the judge is bound by general rules, so the legislature in making particular laws is bound by the more general principles of the constitution. The justification for these distinctions is also similar in both cases: as a judicial decision is regarded as just only if it is in conformity with a general law, so particular laws are regarded as just only if they conform to more general principles. And as we want to prevent the judge from infringing the law for some particular reason, so we also want to prevent the legislature from infringing certain general principles for the sake of temporary and immediate aims." F.A. Hayek, The Constitution of Liberty
Does that mean the people cannot change the liberal constitution through a referendum?
I raise the question naively because there is a tension betwen the idea of liberal constitutionalism ( that the powers of government should be exercised within strict limits) and democracy (the will of the people is paramount). Democracy represents a threat to the rule of law.
Update
For Hayek the organization of society is already given, as the market order has evolved spontaneously.The institutions which define the market order and protect liberty and progress are in existence. The rule of law as a set of general rules is constitutive of the market order and has emerged and evolved with it.
So the task of politics is to protect the sphere of liberty from encroachment. Moving beyond this spells disaster and leads to the dark night of totalitarianism.
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Gary - You are determined to find anti-democrats under the bed. All this means is that he thinks it is undesirable for legislatures to be able to change their own fundamental rules - to stop temporary majorities rigging things in their favour. This theoretically threatens democracy as much as freedom. There are numerous mechanisms for slowing down such changes - larger majorities within the parliament, referendums, etc.