In 2023, Cass Sunstein posted a paper titled “The Rule of Law,” which is intended to sing the praises of the rule of law but also to caution against claiming too much for it. The abstract states that “this [Sunstein’s] account of the rule of law conflicts with those offered by (among many others) Friedrich Hayek and Morton Horwitz, who conflate the idea with other, quite different ideas and practices.” As a strong admirer of Hayek, this statement caught my attention. At the same time, Sunstein’s account of the rule of law seems quite sensible and appropriate. So, if Sunstein’s sensible and appropriate account of the rule of law conflicts with Hayek’s, what’s the conflict? What “different ideas and practices” does Hayek “conflate” the rule of law with? Essentially none, it turns out. Sunstein’s and Hayek’s conceptions of the rule of law are largely the same. Sunstein misunderstands Hayek’s argument that the rule of law requires economic freedom. At least, so I will argue in what follows. Of course, Hayek did at one time promote the rule of law as an essential support of a liberal order in general and of economic liberty in particular. Then, later in his career, he deemphasized this claim markedly. The aim of this essay is to understand the role of rule of law ideal in Hayek’s thinking, why he promoted it so strongly in mid-career, and why he switched gears later.
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