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Robert Bork interviews Friedrich A. Hayek (Part III)


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With the ideas of Edmund Burke as a superstructure, Dr. Hayek discusses the development of general rules of society and the importance of constitutional restraint in the political process. The emergence of law as an evolutionary process with respect to the democratic political structure is explored. Finally, the role of the courts and judges in creating law is examined.


Interview with Friedrich A. Hayek by Robert Bork (Part III)
Thanks to Pacific Academy Advanced Studies for permission to distribute this program.

Digitized by: New Media - UFM.
Digitization: Mario Estrada, Jorge Samayoa; content analysis: Alex Weller; content reviser: Daphne Ortiz; publication: Rebeca Zuñiga

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BORK: Doctor Hayek, early on in your latest work you refer to Edmund Burke approvingly, and I, too, like Edmund Burke and his approach to matters.  But Burke is essentially a man of moral principles, but a very pragmatic man about moral principles, and one who does not try to lay down general rules for the society.  I wonder if there is perhaps in your own position a tension--almost rising toward an inconsistency--in that approving of an evolutionary formation of law, approving of Burke, you nonetheless begin to construct pretty hard rules about what law must be about. 
HAYEK: There's no distinction between rules and principles in this respect.  I'm afraid you use it in an American jurisprudence way, perhaps slightly differently from the way I mean.  I'm suggesting tests which the law must satisfy, not contents of the law.  And I think that is all we can do about any kind of system of thought.  In fact, I'm rather pleased to see that there is an extraordinary similarity between my test of legal rules and [Karl] Popper's test of empirical rules.  
[There is] a certain similarity: neither of them says anything about material content, but they both define certain characteristics which any rule that fits into the system of a free society must satisfy.  But, of course, the temptation, particularly if you--as I do in my volume three--venture into providing a constitutional setup, is to go beyond it.  But even that is meant more to exemplify what kind of system would satisfy my criteria, and the particular example is much less important than the illustration of how the principles could be put into effect. 
BORK: I see.  But I suppose a Burkian might say that the attributes of law, or the principles, ought to be allowed to evolve as well. 
HAYEK: They will.  I'm not laying down the law; I'm offering something to choose from.  Evolution is always the selection between alternatives. 
BORK: I suppose, as a lawyer who is somewhat dubious about the power of law to control large events and movements, I would offer this suggestion: perhaps your position places really too much emphasis on law, in the sense that you think law with proper attributes can control the direction of the society, or at least prevent the society from moving in the wrong direction; whereas I would suggest that much of our history suggests that law is really powerless to withstand strong social, philosophical, political movements, and will reflect those movements rather than stop them. 
HAYEK: Yes, I'm afraid that is true.  But I try to operate on political movements.  You know, my general attitude to all of this has always been that I'm not concerned with what is now politically impossible, but I try to operate on opinion to make things politically possible which are not now. 
BORK: I quite agree with that.  I quite agree with that, but I was-- It leads me to the thought that perhaps the importance of your work is more in its demonstration that certain opinions and certain movements are bad than perhaps in its ability to state the necessary attributes of good law, because the real moving force will be in the opinions about society, rather than in opinions about what characteristics law must have to be just. 
HAYEK: Well, my definition of what characteristics law must have to be just is, of course, also an attempt to work on opinion to make this sort of thing more acceptable, but my main concern, of course, is to create an apparatus which prevents the abuse of governmental powers. 
BORK: Perhaps I come away from your work, which I found enormously stimulating, less convinced that the apparatus can save us than that your explanation of the way a society operates leads me to believe that legislators and judges ought to be persuaded to greater modesty about their powers, about their intellectual understanding, and that would be a sufficient lesson for them to carry away. 
HAYEK: Yes, but there's another point.  You know, I'm frankly trying to destroy the superstitious belief in our particular conception of democracy which we have now, which is certainly ultimately ideologically determined, but which has created without our knowing it an omnipotent government with really completely unlimited powers, and to recover the old tradition, which was only defeated by the modern superstitious democracy, that government needs limitations.  For 200 years the building of constitutions aimed at limiting government.  Now suddenly we have arrived at the idea where government, because it is supposedly democratic, needs no other limitations.  What I want to make clear is that we must reimpose limitations on governmental power. 
BORK: That's entirely true.  Whether that can be done through law and constitutions is the remaining question.  What we see in America, I think, is a government becoming much more powerful; but part of government--the courts-applying rules which are supposed to limit government but in fact enhance the power of courts. 
HAYEK: Nobody could believe more strongly that a law is only effective if it's supported by a state of public opinion, which brings me back--I'm operating on public opinion.  I don't even believe that before public opinion has changed, a change in the law will do any good.  I think the primary thing is to change opinion on these matters.  When I say "public opinion," it's not quite correct.  It's really, again, the opinion of the intellectuals of the upper strata which governs public opinion.  But the primary thing is to restore a certain awareness of the need [to limit] governmental powers which, after all, has existed for a very long time and which we have lost. 
BORK: Well, in that I couldn't agree with you more, and I think that may be an appropriate place for me to stop.  Thank you very much.
HAYEK: That was very enjoyable.
BORK: I enjoyed it very much.
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Construction of rules of law
Law and public opinion
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