Constitutionalism in the guise of evolutionism: Certain aspects of the theory of state and law by Friedrich Von Hayek

• Main Author: Savanović Aleksandar
• Format: Article
• Language: English
• Published: Faculty of Political Sciences, University of Banja Luka, Bosnia and Hercegovina and Institute for Political Studies, Belgrade, Serbia 2012-01-01
• Series: Politeia
• Subjects: Hayek; constitutionalism; evolutionism
• Online Access: http://scindeks-clanci.ceon.rs/data/pdf/2232-9641/2012/2232-96411204205S.pdf

In this paper, we analyze the relationship between the theory of state and law by Friedrich Von Hayek and the constitutionalist tradition of the 18th and 19th century, with emphasis on Hayek's evolutionary interpretation of the origin of state institutions. We will point out the specificity of evolutionary approach in the context of the distribution of powers concept, especially the functional role of the legal system and special emphasis on the role of judicial authorities in the development of law. In this aspect, Hayek's theory of state contains one of the fundamental critics of democratic political procedures. The key aspect marking the Hayek's approach to the theory of law is the strong emphasis on the verge of rationality and therefore the marked importance of customary and traditional norms in the preservation of the legal system rationality, as well as the subordination of legislation to what Hayek calls law.