Law, Legislation and Political Forms in Hayek and Schmitt
Barry StockerHayek makes a distinction between law and legislation, which is partly based on such a distinction in Schmitt's legal and political theory. Previous work on the connection has largely used it to argue that Hayek was carrying on the authoritarian aspects of Schmitt's thinking. The paper argues that Hayek's version of liberalism is clearly distinct from Schmitt's conservative authoritarianism, while also arguing for the importance of the connection. The connection has significance for political forms, as well as law. Both thinkers look at law and normative principles as central to the liberal Rechtsstaat. Both find that the Rechtstaat tends to undermine liberalism, since it legislates well beyond the limits of law. However, Hayek wishes to preserve both the Rechtsstaat and law, while Schmitt wishes to find a better political form than the Rechtsstaat, in order to escape from the ambiguities and self-undermining tendencies of liberalism. For Schmitt, establishing a governmental or administrative order, in place of a Rechtsstaat avoids the worst forms of authoritarianism, and restores law properly speaking. Both refer to law as what comes from the past, from general agreement about what should be in law, as opposed to legislation which invents laws that go beyond rule of law, undermining the distinction between state and society. Hayek looks for ways to reform the Rechssttaat, and the democratic procedures associated with it. He wishes to preserve a liberal form of democracy, unlike Schmitt who regards both as limited and as not going together. Schmitt's account rests on assumptions about nomos as the basis of law, referring to the original division of land at the beginning of human communities, as being the moment of law and property. Hayek looks to ideas of natural order in cosmos as the basis of law, opposed to legislation. For Hayek, law rests on the role of judges and the separation of law from the political process. Schmitt refers to law in connection with an institutional order, which contains legal and political aspects. Hayek makes brief, but significant, references to Schmitt on law and politics in three of his texts. These comments themselves show the importance of Schmitt's analyses for Hayek, along with reservations about someone Hayek regarded as a totalitarian thinker. Both attack positivist legal theory as a position which allows the wrong kind of laws, and the possibility of an unaccountable political authority as the source of laws. Hayek's view of law, legislation, and political form, itself rests on a view of the history of law. This is a view which looks for the most idealised forms of 'law', but becomes caught up in ambiguities about the time at which the right kind of law existed, and what the relation between law and liberty is.
