2013년 3월 19일 화요일

[발췌] Hayek[:]The Rule of Law and the Challenge of Emergency


지은이: Juan Vicente Sola
출처: Center on Capitalism and Society, Columbia Univ.

※ 발췌 (excerpts):

The vision of the rule of law is a central part of economic culture[1] since it defines (i) legitimacy, (ii) the scope of state regulation of private acts, (iii) the origin of authority, (iv) the possibilities and limits of change, and (v) the extent of government authority in times of crisis. To defend the rule of law two justificatory theories have been devised: natural rights and the social contract, Friedrich von Hayek was an active participant in this debate. But in times of crisis the rule of law and the culture that i its environment are challenged, and two conflicts appear, the first is who should make the decisions and second if he or she should abide to existent rules or could have the benefit of the deference of other powers and of society to look to extralegal solutions.

Hayek gave an answer to these questions and his vision serves as guidance for future situations. 

The legal works of Hayek raise three different issues:

1. Natural rights as the essence of the rule of law, in contrast with the social contract as a source of constitutional legitimacy. A question emerges from Hayek general vision of the rule of law, Could we imagine an application of the social contract theory to Hayekian thought, and in this way correct some of the inconsistencies of the natural rights theory?

2. The characterization of law as a spontaneous order and its evolutionary character.

3. The solution of economic emergencies, his opposition to Carl Schmitt and John Maynard Keynes.


The Rule of Law and a Common Culture (... ...)

Natural Rights or Social Contract?

Both natural rights and social contract are forms to describe the legitimacy of the law. Natural rights describe the law through the values they represent, values that are rigidly defined. On the other hand the social contract is not based on values but in an agreement in a procedure. This constitutes the main difference between law and morals, since
(...) The relatively concrete character of law (in comparison to morality) concerns not only (a) the content and (b) the meaning of legal validity, but also (c) the mode of legislation.[5: Harbermas]
The "mode of legislation" indicates the procedures of rulemaking, that includes legislation and administrative decisions but also the legal precedents made for the solution of conflicts and in the interpretation of the Constitutional contract or the "general principles of law". In a "proceduralist concept of democracy" democratic deliberation is organized in an established procedure for the determination of all legal rules, which includes a jurisprudence of procedures and not a jusrisprudence of values.
A constitutional court guided by a proceduralist understanding of the constitution does not have to overdraw on its legitimation credit. It can stay within its authority to ally the lawㅡan authority clearly defined in terms of the logic of argumentationㅡprovided that the democratic proces over which it is supposed to keep watch is not described as a state of exception.[6: Harbermas]
Regardless of Hayek's acceptance and insistence in natural rights and a jurisprudence of values, due I belive to his legal education in central Europe, one of the points of this paper is to indicate that ^his legal doctrine is not incompatible with social contract theories, particularly with his idea of law as a spontaneous and evolutionary order^. (... ...)

Hayek and the "Rule of Law"

Hayek's decision to write an extensive volume about the rule of law came apparently from a comment from J.M. Keynes. Keynes who read the "Road to Serfdom" on the ship that took him to Bretton Woods asked Hayek if he was not adverse to all forms of government intervention, how one could tell good government intervention from bad. Hayek finally answered in "The Constitution of liberty"[10]

In this book he defined liberty as
"That condition of men in which coercison of some by other is reduced as much as is possible in society. This state we shall describe throughout as a state of liberty or freedom."
(...)

Following the natural rights tradition Hayek considered that the rule of law was best to find not according to its source, as if they were included in the Constitution, but according to the capacity to abide by "general principles of law". In this definition although he uses the English word "rule of law" he is thinking in the Germanic concept of "Rechtstaat" which could be translated literally as "state of law" or "state of right"[13] which is a concept that has a deep influence of natural law. Furthermore Hayek has a whole chapter in "the Constitution of liberty" dedicated to the idea off[?of] the "Rechtstaat" written in the original German.

(...) 

 _ The Rechtsstaat as a Natural Law Concept.

(...) The concept of Rechtsstaat has evolved into a constitutional principle with the constitutional practice of the Basic Law, this principle influences all the activities of the state under he law. It also includes fundamental organizational principles, e.g.: the separation of powers, the constitutional judicial review undertaken by the German Constitutional Court, (... ...) 

 _ The Constitutional Foundations of the Economic System.

{{
For Hayek "the rule of law" means primarily the limitation of the coercive power of the state, but is more than a constitutional limitation, it requires the acceptance of certain principles:
It is a doctrine concerning what the law ought to be, concerning the general attributes that particular laws should possess. This is important because today the conception of the rule of law is sometimes confused with the requirement of mere legality in all government action. The rule of law, of course, presupposes complete legality, but this is not enough: if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law. The rule of law, therefore, is also more than constitutionalism: it requires that all laws conform to certain principles. [19: Hayek, The Constitution of Liberty, Chapter 14 "The Safeguards of Individual Liberty"]
}}

But the determination of principles requires some form of ex ante agreement and a structure of governance that assures its application and recognizes its evolution. The Law creates the basis of the economic system. (...)

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