I think the main interest of the third volume of Friedrich Hayek‘s 1973-1978 trilogy Law, Legislation, and Liberty, titled The Political Order of a Free People, resides in its strong liberal critique of democracy as we know it. My review of this third volume is just out on Econlib. A few excerpts of my review (the quotes are of course from the book):
The first broad argument of the book is that democracy has diverged from its original ideal and degenerated into an unlimited and totalitarian democracy. Unlimited democratic power can be traced back to the decline of Athenian democracy at the end of the 5th century BC when, as Aristotle noticed, “the emancipated people became a tyrant.” In a similar way, the British Parliament became sovereign, that is, theoretically omnipotent, in 1766, when it “explicitly rejected the idea that in its particular decisions it was bound to observe any general rules not of its own making.”
Liberal democracy originally referred simply to “a method of procedure for determining government decisions” or, more practically, for getting rid of governments without bloodshed. Democracy was a protection against tyranny. It is an error to view democracy not as “a procedure for arriving at agreement on common action,” but instead “to give it a substantive content prescribing what the aim of those activities ought to be.”
The current, unlimited democracy leads to rent-seeking (competition for government privileges), the triumph of special interest groups, and legal corruption. The cause is that a government with unlimited powers “cannot refuse to exercise them,” so everybody will rush to the public trough.
I previously reviewed on Econlib the two previous volumes, respectively Rules and Order, and The Mirage of Social Justice. As the reader of my reviews will realize, I try to provide a summary of Hayek’s theory, but I also draw a few parallels with other theories, and raise some questions or doubts.
For those who are not already familiar with Hayek’s thought, I would recommend reading my reviews in the same order as the books.
READER COMMENTS
Andrew_FL
May 2 2023 at 10:26am
Am I right in assuming that Hayek is alluding to, by this remark, the Declaratory Act?
Pierre Lemieux
May 2 2023 at 11:07am
Andrew: That’s a very good question and I don’t know the answer. Hayek does not provide a citation there. The Declaratory Act is mentioned neither in Law, Legislation, and Liberty nor in The Constitution of Liberty. Can you tell us was was in the Declaratory Act? Anybody else can try to answer the question?
Jon Murphy
May 2 2023 at 11:18am
The Declaratory Act stated that Parliament’s authorty was the same in the Colonies as in Britian. If Hayek was referring to that Act, he may have misunderstood it. I’d want to see the entire quote from Hayek in context.
Craig
May 2 2023 at 11:43am
It definitely was discussing colonies passing laws which would conflict with the law in Great Britain. https://avalon.law.yale.edu/18th_century/declaratory_act_1766.asp
“full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever,”
So while the act relates to disobedient colonies it rather emphatically states (delcares) that the source of this authority is parliamentary supremacy which actually preexists this act. So this act isn’t itself the source of that proclaimed authority; rather it is a ‘declaratory’ act, ie declaring that quantum of authority which then existed — a power to bind the subjects of the crown of Great Britain in all cases whatsoever.
Jon Murphy
May 2 2023 at 11:46am
That makes sense in the context of Hayek.
Pierre Lemieux
May 2 2023 at 1:33pm
Thanks, Craig. It makes sense (as Jon already mentioned).
Mark Brady
May 2 2023 at 6:09pm
I recommend that discussion of the British parliament uses the expression parliamentary sovereignty, not parliamentary supremacy.
https://www.parliament.uk/about/how/role/sovereignty/
Craig
May 3 2023 at 1:03am
I actually mentally stuttered on parliamentary sovereignty. Mentally I stopped, it seemed a bit off and I thought, “Nah, it can’t be that, the people are sovereign” and then I had faint notions of federal supremacy in my head and I went with parliamentary supremacy without previously being exposed to that.
Of course you made me google it and I had a nice chat with ChattyG and he set me straight:
WHich term is used more frequently parliamentary sovereignty or parliamentary supremacy?
ChatGPT
The terms “parliamentary sovereignty” and “parliamentary supremacy” are often used interchangeably and can be considered synonymous in meaning. However, in general, the term “parliamentary sovereignty” is used more frequently in academic and legal discourse, particularly in the United Kingdom, where the concept originated. This is because “parliamentary sovereignty” is seen as a broader concept that encompasses the idea that Parliament is the supreme law-making body, as well as other related principles such as the rule of law and the separation of powers. In contrast, “parliamentary supremacy” is sometimes seen as a more narrow term that refers specifically to the idea that Parliament is the highest legal authority in the land. Nonetheless, both terms are commonly used to describe the principle that Parliament is the ultimate source of legal authority in a given political system.
User
Just curious is parliamentary supremacy a term more often used in the US?
ChatGPT
No, the term “parliamentary supremacy” is not commonly used in the United States, as it is a concept that is closely associated with the British parliamentary system. The United States has a different system of government, with a written Constitution that establishes a system of checks and balances between the three branches of government: the executive, legislative, and judicial branches. The U.S. Constitution is considered to be the supreme law of the land, and the principle of judicial review allows the federal courts to declare laws unconstitutional if they are inconsistent with the Constitution. Therefore, the idea of “parliamentary supremacy” is not relevant to the American system of government.
User
No I mean when discussing the British system only?
ChatGPT
In discussions of the British parliamentary system, both “parliamentary sovereignty” and “parliamentary supremacy” are used to describe the idea that Parliament is the ultimate legal authority. However, as I mentioned earlier, “parliamentary sovereignty” is the more commonly used term in academic and legal discourse in the UK, as it is seen as a broader concept that encompasses not only the idea of parliamentary supremacy but also related principles such as the rule of law, the separation of powers, and the accountability of government to Parliament.
Nonetheless, both terms are used interchangeably in discussions of the British system of government, and the choice of term may depend on the context of the discussion and the preferences of the author or speaker. It is worth noting, however, that the term “parliamentary supremacy” has been used in some UK legal cases and in political debates, particularly in relation to the UK’s membership in the European Union and the role of EU law in the UK legal system.
User
No I don’t mean with respect to the American system of government, I mean which term is more commonly used in the US when discussing the British system of governance?
ChatGPT
I apologize for misunderstanding your question earlier. In the United States, when discussing the British system of governance, the term “parliamentary sovereignty” is more commonly used than “parliamentary supremacy.” This is because “parliamentary sovereignty” is a broader and more flexible concept that encompasses not only the idea that Parliament is the supreme legal authority but also related principles such as the rule of law, the separation of powers, and the accountability of government to Parliament. Additionally, the term “parliamentary sovereignty” has been used in some influential American legal and political writings,
User
Who has used the term “parliamentary supremacy”?
ChatGPT
The term “parliamentary supremacy” has been used in some legal and political discussions in the United Kingdom, particularly in the context of debates over the relationship between UK law and EU law. For example, in the famous UK legal case of R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court of the United Kingdom used the term “parliamentary supremacy” to describe the principle that Parliament has the final authority to make and unmake laws. Similarly, in some political debates in the UK, the term “parliamentary supremacy” has been used to emphasize the idea that the UK Parliament is the ultimate legal authority, and that the UK should not be subject to external legal obligations, such as those imposed by the European Union. However, as I mentioned earlier, the term “parliamentary sovereignty” is more commonly used in the UK to describe the principle of parliamentary authority, and it is also the preferred term in most academic and legal discourse in the UK.
User
Well, just curious how much more frequently is parliamentary sovereignty used?
ChatGPT
In the context of the British parliamentary system, the term “parliamentary sovereignty” is used much more frequently than “parliamentary supremacy” in academic and legal discourse in the United Kingdom. This is because “parliamentary sovereignty” is a broader and more flexible concept that encompasses not only the idea that Parliament is the supreme legal authority, but also other related principles such as the rule of law, the separation of powers, and the accountability of government to Parliament.
In contrast, “parliamentary supremacy” is seen as a more narrow term that refers specifically to the idea that Parliament is the highest legal authority in the land. Nonetheless, both terms are commonly used interchangeably to describe the principle that Parliament is the ultimate source of legal authority in the British system of government. However, in the UK context, “parliamentary sovereignty” is the more commonly used term in academic and legal discourse, and it has a more established and wider-ranging history of usage in political and constitutional thought.
User
Well above you noted they were used ‘often’ interchangeably? Just curious what % use would you place on each if you had to place a % on it?
ChatGPT
It is difficult to provide an exact percentage breakdown of how often “parliamentary sovereignty” and “parliamentary supremacy” are used interchangeably in discussions of the British parliamentary system.
In academic and legal discourse in the UK, “parliamentary sovereignty” is the more commonly used term to describe the principle of parliamentary authority. However, it is worth noting that the term “parliamentary supremacy” has been used in some legal cases and in political debates in the UK, particularly in relation to the UK’s membership in the European Union and the role of EU law in the UK legal system.
Overall, it is safe to say that both terms are used in discussions of the British system of government, and the choice of term may depend on the context of the discussion and the preferences of the author or speaker. Nonetheless, “parliamentary sovereignty” is generally considered to be the more established and widely used term in the UK, and it has a more encompassing and flexible meaning than “parliamentary supremacy.”
User
I agree it is difficult, how about your best estimate?
ChatGPT
Based on my training and knowledge of the use of these terms in academic and legal discourse in the UK, I would estimate that “parliamentary sovereignty” is used approximately 80-90% of the time, while “parliamentary supremacy” is used approximately 10-20% of the time in discussions of the British parliamentary system. However, it is important to note that these percentages are estimates and may vary depending on the specific context of the discussion or the preferences of the author or speaker.
User
And what would that breakdown of discourse in the US be?
ChatGPT
In the US, discussions of the British parliamentary system are not as common as they are in the UK, and the use of the terms “parliamentary sovereignty” and “parliamentary supremacy” is less frequent. However, in the limited discussions that do take place, my estimate would be that “parliamentary sovereignty” is still the more commonly used term, likely accounting for 70-80% of the use, while “parliamentary supremacy” accounts for the remaining 20-30%. This estimate is based on my understanding of the preferences of US legal and political scholars who have written about the British parliamentary system, as well as my observation of the use of these terms in public discourse on the subject. However, it is important to note that the exact breakdown may vary depending on the specific context of the discussion and the individual preferences of the author or speaker.
There’s even a nuanced distinction. I will actually use parliamentary sovereignty though. and honestly I genuinely was predisposed to use that term to begin with.
Pierre Lemieux
May 3 2023 at 4:48pm
Craig: Thanks for bringing our friend ChatGPT in the conversation. (I have been told that he dreams of being able to comment independently on EconLog!) His answers are impressive in a sense; but, in another sense, even more confused than the already nuanced reality. Instead of Descartes’s Cogito, ergo sum, Chat could say, Non sum, ergo non cogito.
Pierre Lemieux
May 3 2023 at 4:36pm
Mark: Your distinction is compatible with Hayek’s terminology. He never himself uses (at least in Law, Legislation, and Liberty) expressions such as “parliamentary supremacy.” However, it does seems that, for him, “sovereignty” is synonym with “supremacy,” at least when he speaks of the “sovereignty of the law.” When he speaks against the sovereignty of Parliament, he adds “unlimited,” at least in the following statement–but that is probably just to emphasize the meaning “sovereigny”:
Mactoul
May 5 2023 at 3:56am
Been reading the previous post on Hayek and social justice and it strikes me that the concept of “individual ends” is doing a lot of work.
How would you say these “individual ends” differ from Kennedy’s “heart of liberty”?
And how would “individual ends” comport with notion of society at all?
In other words, is Great Society a society at all?
Pierre Lemieux
May 5 2023 at 11:08am
Mactoul: A notable phenomenon is that most people dream of living in a Great Society; lots of them are even taking great risks to move into any imitation of the ideal that now exists. Alternatively, lots of people have always been trying to leave the tribal-like “societies” they live in.