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

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?

22 thoughts on “Quote for the Day: Hayek on the distinction between Law and Legislation”

  1. Given the sinfulness of man and the fallen state of the world in general, it seems that there is not an institution or system that can be set up that will indefinitely prevent “bad” leaders from taking over and making destructive decisions. The only way that a system could operate in such a manner would be for it to be always obeyed, or at least, always enforced when disobedience occurs. Since those obeying and enforcing any worldly system or institution are all sinful, it is pretty much guaranteed that any worldly institution will experience severe problems or failure prior to Christ’s return.

  2. My old friend John Avery put it this way, “we are all basically evil.” This idea can be traced back to the theme of “original sin.” Man will inevitably make some wrong decisions, it is reasonable to assume that until Christ comes, their will be no government leader who does not make wrong decisions.

    In a world of relativism, who is to say many decisions that are made in our government today are wrong? For Christians, God’s word embodies truth, right and wrong. For an unbeliever, right and wrong could be determined by almost anything else.

  3. The simple fact of the matter is that everyone is inherently evil. If it were not for the death of Christ on the cross, believers would have no hope. People today are consumed with power and have always been obsessed with power and success. There is no system, or way that our government can set up a system to keep sinful man in check. Most people in positions of power today are trying to do something to make their name great. There will never be a system to keep man until Jesus comes back to redeem his people.

    1. I’m not quite so negative. Our founding fathers developed a system with separation of powers that kept the worst evils from happening in our country, and it lasted well over a hundred years before FDR began the significant expansion that is only accelerating today. So given we live in a fallen world, what can we do to improve it? I think its up to us to win more and more to Christ; as Madison said our constitution was made only for a moral and religious people.

  4. There were two aspects of this article that I found very interesting. The first was to hear Hayek’s differentiation between law and legislation; prior to this article I simply considered the two terms to be one in the same, but now it is easy to understand that the two are quite different. The second aspect of this article that I enjoyed was when Hayek made the quote that, “The discussion about who should possess this power has, however, unduly overshadowed the much more fundamental question of how far this power should extend.” Today, people are so concerned about the good nature of the leaders in office, but due to the fact that all of mankind is inherently evil we will never have a perfect leader on earth. Therefore, we must look to the scope of power that is given to our leaders, as Hayek points out in this quote. If the power of our imperfect leaders are limited then the negative effects that they can have on our country will be limited. Currently the scope of government in the United States is way to large and something must be done to limit this power before things get out of control.

  5. I agree that the leader who is constrained by neither legislation nor law is a great danger. However, I am convinced that the leader who believes that he can change both legislation and law is an even greater threat. The leader who is not constrained is, in a way, aware of the law established by a “higher power” and yet chooses to ignore it. Because of this knowledge, it is possible that, even though he appears to be unconstrained, the leader is subconsciously constrained and does not abuse his power to the greatest extent. The leader who believes that he can change the law has self-appointed himself as “god” and has no, even subconscious, constrains.

  6. This distinction between law and legislation is interesting. I wonder how a strict atheist would think about it. This contrast assumes the fact that there is an absolute standard to which every man is held—a law. While Christians know that this is a true assumption, people who do not acknowledge the presence of an absolute might be less likely to admit this. To a strict atheist, there is no law other than the physical laws of nature. However, we know that everyone is held accountable whether he or she admits it or not. But would an atheist agree with this post?

    1. Many atheists can get comfortable with natural law, since they understand there are regularities (or laws) that transcend individuals–that doesn’t necessarily require them to buy into a complete set of morals. Certainly Hayek was not an evangelical Christian, and it’s his quote.

  7. The way that our government was setup was to insure that no “evil” men took too much power which we see in our checks and balances system. When you say there is no “good” men that is true in the sense that in the bible Romans 3:10 “as it is written: “None is righteous, no, not one” however there are God fearing people who we can entrust with some limited decisions making power I liked what Peter said, “If the power of our imperfect leaders are limited then the negative effects that they can have on our country will be limited.”

  8. It’s easy as a Christian to think: It’s a broken world so we can’t fix it. But I think we should prayerfully consider what God would have us do to take action against the evil in this world instead of a back seat.

  9. This is a really interesting quote because I have never thought about the beginning of legislation. It almost seems that one day some guys wanted to have power over the other people so they wrote legislation that gave them fake authority and it caught on. Obviously this is not how it went, but ultimately I would believe we got our desire to rule and the idea of creating legislation through law from God. The first example of dominion was before the earth was created when God spoke into existence everything and it listened. From that point on, people have had a desire to create the overall law and legislate it through their own power. Now it seems that man is creating their own law or even taking away old laws and using legislation to enforce it.

  10. I greatly appreciate the distinction that even Hayek sees between law and legislation. As Christians, I believe that the law should be above legislation. God placed us on this earth in order to have dominion over creation, and to obey the legislation that our government places over us. However, Christians must also remember that we are citizens of a Heavenly kingdom, and that we must abide by the law of this land above earthly legislation.

  11. I greatly appreciate the distinction that even Hayek sees between law and legislation. As Christians, I believe that the law should be above legislation. God placed us on this earth in order to have dominion over creation, and to obey the legislation that our government places over us. However, Christians must also remember that we are citizens of a Heavenly kingdom, and that we must abide by the law of this land above earthly legislation.

  12. During the Nuremberg Trials of WWII, a problematic quandary arose. A primary argument in defense of the Nazi’s was the legality of their actions. Their culture mandated the genocide of Jews as a racial purification; thus in Germany what they did was not only permissible, but justified. According to their claim, the imposition of the Allies convictions upon the Nazis was forceful, ideological subjugation of Germany which was premised upon moral preferences. One country cannot condemn another country on the basis of that country’s personal morals. Justice Robert H. Jackson issued that the only feasible means by which to try the Nazis was by appealing to a ‘law above the law’ – a supreme measure that assesses the standards of cultures.
    I believe that is the primary conviction that Christians should hold – that higher assessment is found in the person of Christ, the measure of his life, and the standard of His word.

  13. Letting any human leader be able to decide what is right and wrong with no institutional restraint cannot be good. Obviously, man is sinful and we continually mess up and make mistakes even if we do not mean too. That is why Christ came to this earth. So we can be redeemed and have our sin covered by his blood.

  14. Our government is built upon natural law (murder is bad, ect.) but the rest of rules to govern society is left to the legislator. The original framers of our Constitution pictured a nation whose legislator was elected by the general populace. I am sure they did not envision Krony Capitalism. Today’s legislation almost always has a winner (small majority) and a large loser (general populace). Far from justice for all, modern American legislation promotes justice for a small group, not exactly the just law.

  15. I totally agree that we need to constrain more of our leaders power so he will be less able to abuse them. The truth is all humankind is sinful and if given to much power our leader will most likely start making negative decisions that could affect us for years.

  16. I look at Hayek’s distinction as a great warning and condemnation against democracy. Law should only be that that is truly natural and moral. I agree wholeheartedly with Philosopher John Locke in his statement, “All mankind… being all equal and independent, no one ought to harm another in his life, health, liberty or possessions”. If government truly does serve a purpose, it ought to be only that of protecting the property rights of its citizens under the realization that a man owns his possessions along with own body. Just about every law created by man is done so in the purpose of establishing some sort of political reward or advantage. People are so quick today to believe that following the law of a government is inherently moral. When asked why all laws are considered to be moral, they will often respond with some collectivist or social contractual argument. They will justify laws as being passed democratically and by the will of the people. Though they may not specifically state it, they believe that a system of majority rule is just, so long as they are in said majority. This is why people are so passionate about politics. They desperately want the force of government legislation to favor them, regardless of the objective, moral contradiction present in creating a law that initiates force against any minority.

  17. This is definitely an interesting conversation. As Christians, our distinction between legislation is quite different than others. First, we see law as authority. God laid out law for us in the Bible, and as Christians, we must follow. However, we are in a sinful world full of leaders with too much power, and new legislations becoming law that shouldn’t be. Although this is true, God placed us on earth for a reason, and we are to follow the authority he has put in place. At the same time, there is a reason why legislation isn’t law like Hayek mentioned. So even though certain legislations may seem ridiculous, and even laws, there’s an ultimate reason why are system is the way it is. I think it comes down to trusting God and praying for the authority we have place over us.

  18. I agree that law should be above legislation, but we also have to remember that we still have to obey what the legislation says unless it calls for us to go against God. I also agree with the fact that since every man is potentially bad and that we shouldn’t focus on whether someone is morally a “good” person, or a “good leader” because power can eventually get to their heads. Instead, we need to be “concerned with the institutional constraints that can limit destructive authority.”

  19. I agree there is a law without legislation. I would like to stress the comment about the fallen world and man’s sinful nature. I believe that without the physical legislation that man would ultimately fail to follow the overall law. Man has a sinful nature that drives the motives and without the physical legislation and government then people are less likely to follow order.

  20. I agree with the evil that is completely absorbing our world today. However I feel a little more optimistic than most. I am totally aware that every person is a sinner, but as far as evilness, I think that is different. As a Christian, I would not consider myself as evil because although I am a sinner, I am completely saved from God’s wrath for those who do not put their faith in Jesus. There is so much evil in the world today, but I do not think it is accurate to say it is completely overcoming every human being.

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