Hayek and Human Rights: Foundations for a minimalist approach to law

Abstract

Why are discussions of human rights largely absent from Hayek's writings? Focusing primarily on Hayek's writings in law and politics, the author examines the building blocks of Hayek's legal theorizing - the notions of coercion, the Rule of Law ideal, justice, negative duties, and liberal as opposed to majoritarian constitutionalism - arguing that each element of Hayek's writing contributes to his overall perspective on human rights. The author concludes by summarizing the relationship between the twin themes that drive Hayek's work: his understanding of the consequences of the transition from Gemeinschaft to Gesellschaft forms of social interaction and the implications of an increasing degree of functional specialization in society. Hayek's vision of the political and economic future has to a remarkable extent come to pass, and his writings can now be seen to contain much that is orthodox and widely accepted. The tight weaving of insights from diverse academic disciplines into a coherent social theory make his work of heightened relevance today, and many of the core constructs and concerns of his theorizing are useful for discussions of human rights. Students and scholars interested in a multidisciplinary approach to libertarian or liberal theory, legal and political theory, or market liberalism, will find this an insightful reading of one of our great thinkers.