Hayek and the Rule of Law: Implications for Unenumerated Rights and the Administrative State
The Rule of Law is not an end in itself. Instead, for Hayek, the Rule of Law is a prerequisite for the spontaneous order. That order is not a utopian concept; instead it explains how free societies in fact operate, and why those societies are more successful—indeed vastly more so—than societies whose members are governed by commands. Commands tell the citizen what she must do, and serve the issuer’s purposes; rules of conduct tell the citizen what she may do, and allow her to pursue purposes of her own. The spontaneous order thus stands in contrast to the order in collectivist systems, like socialism or communism, in which the state enforces obedience to the pursuit of “common concrete ends.”1 Among these systems, socialism represents an earlier and more idealistic stage; communism, Hayek might say, is just socialism without the good intentions. 2 In a free society, by contrast, the spontaneous order arises within a body of “common abstract rules,” which apply equally to everyone.3 Those rules in turn are the only basis on which the state may employ its power to coerce.4 Conduct not proscribed by those rules thereby falls within what Hayek called the “protected sphere,” or “private domain,” in which the individual’s will is supreme.5 In that sphere, each person may “pursue his own ends,” using “his concrete and often unique knowledge of the particular circumstances of time and place.”6 The spontaneous order thereby allows the society’s members, taken together, to act upon knowledge of a “multitude of circumstances” that nobody—no person, no organization, and no government—“possesses as a whole.”7 The spontaneous order thus harnesses more knowledge than any centrally controlled society ever could. And a society that respects the individual as an individual—which is to say, one that respects the individual’s protected sphere—thereby allows each person, “by his several knowledge and skills, to help satisfy the needs of society through a contribution of his choice[.]”8
What makes the protected sphere a reality is the Rule of Law. The law tells each person “what facts he may count on and thereby extends the range within which he can predict the consequences of his actions.”9 And by doing so, the law “allows each individual to make the fullest use of his knowledge.”10 The principal function of the Rule of Law, therefore, is to allow each individual “to foresee with fair certainty” where the boundaries of the protected sphere lie.11
To serve that function, in Hayek’s view, the Rule of Law must include four principles, which to some extent overlap. First, “the government must never coerce an individual except in the enforcement of a known rule[.]”12 That a rule must be known means that “laws must always be prospective, never retrospective, in their effect.”13
