Principium Volume II, Book 11, Quote 1191 and 1193

1191. (1-13-2011) A constitution which in such manner is to limit government must contain what in effect are substantive rules, besides provisions regulating the derivation of authority. It must lay down general principles which are to govern the acts of the appointed legislature. The idea of a constitution, therefore, involves not only the idea of hierarchy of authority or power but also that of a hierarchy of rules or laws, where those possessing a higher degree of generality and proceeding from a superior authority control the contents of the more specific laws that are passed by a delegated authority.

- Friedrich A. Hayek – The Constitution of Liberty, 1978


1193. (1-13-2011) The conception of a higher law governing current legislation is a very old one. In the eighteenth century it was usually conceived as the law of God, or that of Nature, or that of Reason. But the idea of making this higher law explicit and enforcible [sic] by putting it on paper, though not entirely new, was for the first time put into practice by the Revolutionary colonists. The individual colonies, in fact, made the first experiments in codifying this higher law with a wider popular basis than ordinary legislation. But the model that was profoundly to influence the rest of the world was the federal Constitution. 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 form infringing certain general principles for the sake of temporary and immediate aims….It is that all men in the pursuit of immediate aims are apt – or, because of the limitations of their intellect, in fact bound – to violate rules of conduct which they would nevertheless wish to see generally observed. Because of the restricted capacity of our minds, our immediate purposes will always loom large, and we will tend to sacrifice long-term advantages to them (the immediate aims)ATJ. In individual as in social conduct we can therefore approach a measure of rationality or consistency in making particular decisions only by submitting to general principles, irrespective of momentary needs. Legislation can no more dispense with guidance by principles than any other human activity if it is to take account of effects in the aggregate (over time and as a whole)ATJ. A legislature, like an individual, will be more reluctant to take the explicit repudiation of principles formally announced. To break a particular obligation or a promise is a different matter form explicitly stating that contracts or promises may be broken whenever such and such general conditions occur. Making a law retroactive or by law conferring privileges or imposing punishments on individuals is a different matter from rescinding the principle that this should never be done. And a legislature’s infringing rights of property or the freedom of speech in order to achieve some great objective is quite a different thing from having to state the general conditions under which such rights can be infringed. The stating of those conditions under which such actions by the legislature are legitimate would probably have beneficial effects, even if only the legislature itself were required to state them, much as the judge is required to state the principles on which he proceeds. But it will clearly be more effective if only another body has the power to modify these basic principles, especially if the procedure of this body is lengthy and thus allows time for the importance of the particular objective that has given rise to the demand for modification to be seen in the proper proportion. It is worth noting here that, in general, constitutional conventions or similar bodies set up to lay down the most general principles of government are regarded as competent to do only this, and not to pass any particular laws.

- Friedrich A. Hayek – The Constitution of Liberty, 1978

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