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Hayek on the Rechtsstaat

Michael Greve has a great post on the German origins of progressive Administration Law in the United States. Michael notes that the German tradition was not all bad – instead there was a liberal and legal tradition of judicial review in Germany, which did not employ deference. The progressives borrowed most of the bad stuff.

This German idea of the Rechtsstaat – of a state or of government bound by the rule of law – was one that was celebrated by Austrian scholar Friedrich Hayek. Hayek, while known as a Nobel Prize winning economist and a political theorist, also studied law in Vienna where he imbibed the ideal of the Rechtsstaat.

In The Constitution of Liberty, Hayek devotes a portion of the book to the development of a law of liberty. Hayek’s approach is to discuss various countries’ distinctive contributions, from England to the United States to Germany. Hayek argues that the movement for liberty reached Germany last and therefore its contribution was in many ways the most developed and the one that best fits the modern world. 

Hayek’s description of the Rechtsstaat is similar to Greve’s. Hayek saw it as the view that all administrative action had to be subjected to a legal test applied by judges. He writes: “The guiding ideal which profoundly affected the liberal movement of the nineteenth century was that all exercise of administrative power over the person or property of the citizen should be made subject to judicial review.”

But Hayek recognized that the ideal was never fully realized in Germany and that it was departed from just as it was about to be fully adopted. He writes: “The completion of the structure designed to serve the ideal of the rule of law [through judicial review of bureaucratic decisionmaking] more or less coincided with the abandonment of the ideal. Just as the new device was introduced, there commenced a major reversal of intellectual trends; the conceptions of liberalism, with the Rechtsstaat as its main goal, were abandoned.

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on September 06, 2014 at 06:57:01 am

"[T]he German tradition was not all bad – instead there was a liberal and legal tradition of judicial review in Germany, which did not employ deference. The progressives borrowed most of the bad stuff."

Michael, by this point on Greve's post (which I've not read) do you mean, in general, the progressives have an exuberant reliance on the courts to settle matters of administrative law (and by the way, legislative law) is "[borrowing] most of the "bad stuff"? Or is it that the progressives simply favor the courts to override the legislative branches (state and federal) and have a love for the administrative state period, and this too is bad?

"Hayek argues that the movement for liberty reached Germany last and therefore its contribution was in many ways the most developed and the one that best fit the modern world."

Hayek is, of course, wrong. The law of liberty, in effect, died after the founding fathers introduced it to, no, created it for the United States. For a relatively short period in history it thrived and prospered and lit up the rest of the world. But let's face it, the decline of liberty - the great experiment, seems only to have metastasized since roughly the beginning of the 20th century.

"Hayek’s description of the Rechsstaat is similar to Greve’s. Hayek saw it as the view that all administrative action had to be subjected to a legal test applied by judges. He writes: 'The guiding ideal which profoundly affected the liberal movement of the nineteenth century was that all exercise of administrative power over the person or property of the citizen should be made subject to judicial review.'"

The exercise of administrative power, be it under surrogate agencies or the branches of government, has become all encompassing in America and throughout the world. It is a labyrinth of rules, regulations and codes that can only boggle the mind, dull the senses, and has shortened the life of liberty itself. The individual person can barely navigate the codes' system within one's own town or county in America let alone see the horizon line where such rules end at the next higher level. As necessary as it may be (at times), judicial review seems only to complicate the situation all the more.

I do not have the answer to saving what's left of liberty, here or worldwide, except perhaps a return to true faith (NOT the Islamic fascist version) and to God, thus by extension men and women treating one another as persons not utilitarian objects, but at the moment it seems as though liberty is being kept alive by artificial means.

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EJW

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