Proposal for constitutional reform

Hayek became increasingly concerned about the problem of controlling the growth of government. The problem was raised as early as in his The Road to Serfdom (Hayek, 1944). This concern finally led him to question democracy as it now exists: the kind of democracy based solely on the principle of majority rule, which has gradually been transformed into a new kind of despotism and under which legislative and administrative powers are increas­ingly confused.

The task of stating the general rules of just conduct, the rules of action that are followed only to preserve the social order and not to achieve specific targets, would be entrusted to a legislative assembly, the composition of which is different from the governmental assembly entrusted with the task of government. The coercive powers of the latter assembly would be limited by the rules of justice laid down by the first. Thus a true separation of powers would be achieved. The basic clause of such a constitution would have to state that in normal times men could be restrained from doing what they wished, or coerced to do particular things, only in accordance with the recognized rules of just conduct designed to define and protect the individual domain of each. Practical difficulties are worked out through a special consti­tutional court.