Hayek and Schmitt on the Rule of Law

Abstract

abstractAccording to Hayek the rule of law constitutes the foundation of liberalism's political and legal theory. General and abstract laws, as opposed to concrete measures, protect individual freedom from prerogative and arbitrariness (normativism versus decisionism). Hayek maintains that Carl Schmitt's decisionism explains his attacks on liberalism and the prominent role he played in support of Hitler's regime. Two general observations should shorten the distance that Hayek seeks to establish between his posture and that of Schmitt. Firstly, Schmitt's critique is primarily aimed against the tendency that neutralizes the state and makes it vulnerable to democratic pressures. Secondly, Hayek's normativism is seen to contain a decisionist potential.