What is legislation? |

Legislation technically refers to the making and enacting of laws. An example of legislation would be an act of Congress. Today, most people use the words "law" and "legislation" almost interchangeably. This was not always the case. The 20th century libertarian philosopher Hayek, for example, made a clear and important distinction between law and legislation, one foundational to his classical liberal philosophy.

For Hayek, law means common law, judge-made law that establishes legal precedents. In...

Legislation technically refers to the making and enacting of laws. An example of legislation would be an act of Congress. Today, most people use the words "law" and "legislation" almost interchangeably. This was not always the case. The 20th century libertarian philosopher Hayek, for example, made a clear and important distinction between law and legislation, one foundational to his classical liberal philosophy.

For Hayek, law means common law, judge-made law that establishes legal precedents. In making their decisions, judges are discovering and giving voice to long-standing community principles handed down through successive generations. By doing so, they are creating a general framework of rules, one that allows for the maximum exercise of individual liberty. As this framework is general, it does not impose a specific way of life on anyone; it simply enables each individual to maximize his/her own liberty while respecting that of others. We can then see why Hayek regards common law as playing a vital role in strengthening the operation of the free market economy he so highly values.

Legislation is a completely different matter entirely. Unlike law, it is created for a specific purpose; it does not arise spontaneously over time. If law provides a broad framework, legislation hands down a detailed social blueprint. It is designed largely to allow those in power to carry out policy programs usually involving the enormous expansion of the state. This gives those in positions of authority huge power and largely unchecked power at that. Human nature being what it is, if you give someone a lot of unchecked power, odds are at some point they will abuse it; this is what Hayek fears most of all.

Legislation imposes itself upon society, unlike common law whose roots are buried deep within society. The separation of legislation from any real foundation in society means that it is often used for programs of massive social engineering by governments, programs which tend not to correspond with the views of the vast majority. (A good example would be the enactment of many of the Great Society programs under President Johnson in the 1960s). In other words, legislation imposes a certain way of life on people, effectively telling them how to live their lives. Legislation gains credence and authority relatively quickly; it would take common law centuries to arrive at a similar social prescription. It is no wonder, says Hayek, that governments with radical agendas, such as Hitler's Third Reich or the USSR under Stalin, saw legislation as an essential tool in carrying out their revolutionary plans.

We can illustrate Hayek's point with a hypothetical example. Let us say that Congress voted to reintroduce slavery. Could that act of Congress really be described as law? Hayek says no. Though it would be a formally enacted piece of legislation, it would not have the status of law in his eyes or the eyes of most other people. Law for Hayek is something that transcends; it is an expression of a higher morality to which we all must adhere if we are to live in a free society that respects our uniqueness as individuals and allows us to pursue our own happiness. An act of Congress reintroducing slavery clearly would not fall under this category. For reasons already discussed, legislation is a serious threat to a free society whose establishment and preservation are the most important components of Hayek's entire social, economic, and political philosophy.