RUDN Journal of Law (May 2022)
Nomothetae: Friedrich Hayek’s project of a constitutional reform
Abstract
The article offers a comprehensive reconstruction of a constitutional reform project, proposed by a well-known economist Friedrich Hayek. The reconstruction implies recognition of three interconnected aspects. The first theoretical aspect deals with the key problem of a democratic government - the problem of empowering parliaments with two dangerously “mixed” powers, namely the power to manage specific resources and the power to proclaim abstract rules of justice. Hayek proposes to enshrine a clear definition of the rules of justice in order not to confuse the development of these rules with the solution of resource management issues. The theoretical aspect is followed by the institutional aspect of the constitutional reform. The institutional aspect of the reform implies formation of a special representative body whose exclusive competence would be strictly limited to proclamation of the abstract rules of justice. Formation of such a representative body is the only way to avoid unjustified empowerment of the same people to decide both the questions of justice and current budget policy. To make sure that these questions will not be treated in the same political manner, Hayek leaves a few remarks concerning the type of mind that most fit to deal with the rules of just conduct. These remarks constitute the third, «anthropological» aspect of the reform project. In accordance with this third aspect, not every type of mind is inclined to prefer justice over the other, more utilitarian issues. It is that type of mind which is prone to follow customary «opinion» rather than organizational «will» that is more reliable when it comes to the matters of justice and its rules. And though this «anthropological» aspect is not at the center of the Hayek’s reform project, it seems to be one of the most characterizing elements of his constitutional proposal. In one way or another, all the other elements can be derived from this anthropological division between «opinion» and «will», which means that Hayekian reform project is based not only on his political preferences, but also underpinned by his epistemological theory.
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