Quote for the Day: Hayek on the distinction between Law and Legislation

Posted on April 14, 2014 by


Legislation, the deliberate making of law, has justly been described as among all inventions of man the one fraught with the gravest consequences, more far-reaching in its effects even than fire and gun-powder.  Unlike law itself, which has never been ‘invented’ in the same sense, the invention of legislation came relatively late in the history of mankind. It gave into the hands of men an instrument of great power which they needed to achieve some good, but which they have not yet learned so to control that it may not produce great evil. It opened to man wholly new possibilities and gave him a new sense of power over his fate. The discussion about who should possess this power has, however, unduly overshadowed the much more fundamental question of how far this power should extend. It will certainly remain an exceedingly dangerous power so long as we believe that it will do harm only if wielded by bad men.  From Law, Legislation and Liberty Vol 1, p. 72.

Bereans would do well to note the correct ideas within Hayek above; mainly that there is a distinction between legislation and law.  Perhaps an easy way to think about this is that if the state in which you live suddenly passed legislation saying that murder was no longer illegal, it would still be against the law.  Law indicates something much greater, whether you are thinking of natural law or biblical law–there is a higher law which legislation simply cannot undo.  Hayek’s final point is well made also; in a fallen world we know that every man is potentially bad, and thus we are concerned not simply with choosing “good” leaders (since there are no truly good leaders Luke 18:19), but rather are concerned with the institutional constraints that can limit destructive authority.

Yet today’s government also gives rise a new concern:  that of the leader who is neither constrained by law or legislation.  When the leader is able to unilaterally determine which legislation is applicable to enforce, when he decides what legislation says and he alone determines whether changing the specific articles of the legislation requires new legislation, we have increased the potential for despotism.  When we allow leaders to arrogate powers to themselves with no institutional constraints, we have sown the seeds of future authoritarianism–we are now dependent upon our leaders being good.  This is not encouraging given the historical failures of men to be good.  How many benevolent dictators can you name?