Revising the liberal tradition? Re-assessing Hayek's liberalism through his engagement with the classical world

Abstract

While recognized as a major 20th century liberal thinker, Hayek's place in the liberal tradition remains indeterminate. This is partially due to his conception of freedom, which Hayek's liberal-minded commentators deemed unable to guarantee a liberal order. By analyzing Hayek's engagement with the classical world, I contend that he departs from a well-ingrained liberal view as he argues that individual liberty and liberalism are not a modern phenomenon but find their origins in ancient Greece and Rome. I demonstrate that, for Hayek, reconnecting with the classical exposition of freedom underlines that it is indissociably tied to the “true”/substantive conception of law as nomos originating in ancient Greece. I show that in Hayek's eyes revisiting Antiquity reveals that from its inception individual freedom was indifferent to the form of government, i.e., who lays down the law. I maintain that, by relying on the claim that political participation is neither necessary nor sufficient for individual freedom, Hayek's theory of liberty within the law ultimately comes close to the Roman conception of freedom developed by Cicero and Livy. I thereby propose that it is because his conception of freedom draws on a pre-liberal one that Hayek's critics could question its liberal credentials.

Introduction

While Friedrich Hayek is largely recognized as a major contributor to the liberal renewal in the 20th century, his place within the liberal tradition remains indeterminate. This is in part because, under the veneer of its apparent simplicity, Hayek's conception of freedom has been notoriously evasive for his critics and sympathizers alike. While sometimes reduced to the negative conception of freedom typical of the liberal tradition, ¹ Hayek's theory of liberty created considerable unease for his liberal and libertarian commentators. The latter argued that Hayek's understanding of freedom is not intrinsically tied to a liberal order nor necessarily capable of offering robust safeguards for personal freedom. In particular, Hayek's defense of liberty through the Rule of Law attracted criticism, leading some to conclude that Hayek offers a formal liberalism devoid of substantive liberal conclusions. ²

In this paper, I show that Hayek's conception of “freedom under the law” finds its roots in the classical world, as he understood it. I contend that acknowledging this neglected aspect of his thought enables us to re-assess Hayek's place in the liberal tradition and is essential for making sense of the relation between law, liberty, and democracy in his framework. Importantly, this analysis reveals that Hayek's theory of liberty makes him a distant heir of the classical republican conception of freedom, which was neither intrinsically tied to democracy nor liberalism. Thus, I suggest that it is because Hayek's conception of freedom draws on a pre-liberal understanding of freedom that its liberal critics could denounce it as ill-suited to secure a liberal order.

I contend that Hayek departs from a well-ingrained view in the liberal tradition that the ancients did not know the concept of individual liberty and/or did not experience it. By contrast with this interpretation, spanning from Benjamin Constant (2010) to Isaiah Berlin (2002), Hayek argues that individual liberty is not a modern phenomenon but rather finds its origins in Antiquity, in ancient Greece and ancient Rome. ³ On Hayek's account, the ideal and practice of freedom under the law was born in ancient Athens and subsequently developed in the Roman Republic, before falling into oblivion until its revival in the 17th century in England (Hayek, 2011: 237–246). Thus, while Hayek's typology of two liberalisms, true and false, ⁴ has often been commented on by scholars, ⁵ it has been insufficiently noticed that the ancient world is the cradle of Hayek's “true” liberal tradition, ⁶ prefiguring its development by modern figures from Locke, Hume, and Smith to Kant, Acton, and Tocqueville.

Considering that Hayek's thought is often regarded as inimical to democracy, ⁷ it is puzzling that he could see ancient Athens, almost universally considered to be the example of direct democratic self-government, as the cradle of individual freedom and liberalism. For Hayek, this is so because we find in Athens the antique prefiguration of the Rule of Law with the concept of isonomia (equality under the law) and the “true” conception of law as nomos. Furthermore, Hayek sees Athens as nothing less than the only historical example of a “true” separation of powers because the tasks of issuing decrees and laws were distinguished and not placed in the same hands. Instead, giving and revising the nomos was the sole task of the nomothetes, a political institution Hayek wishes to revive in his “Model Constitution.” ⁸ Overall, I argue that Hayek's engagement with ancient Greece reveals his liberalism to be indifferent on the question of the form of government, i.e., who gives the law, rather than anti-democratic. What matters for individual liberty as conceived by Hayek is that the law-giving entity, regardless of its identity/composition, is constrained to lay down “true” laws, which designate rules whose general attributes are consistent with the Rule of Law.

However, that Hayek's ideal of freedom under the law is indifferent on the question of who rules might seem not to reveal anything new about Hayek's place in the liberal tradition. After all, Berlin already explained that the negative conception of liberty characteristic of the liberal tradition is compatible with democratic and autocratic forms of government (2002: 176–178). Hayek's indifference on the matter could thus simply result from his own negative definition of liberty as the absence of coercion. ⁹ Yet such view misses that freedom, for Hayek, is not simply the absence of coercion; rather, it is “the state in which a man is not subject to coercion by the arbitrary will of another or others” (2011: 58; my emphasis).

By tying freedom to the absence of subjection to the arbitrary will of another, Hayek thereby comes close to the neo-Republican/neo-Roman conception of freedom most prominently developed by Philip Pettit (1997, 2009) and Quentin Skinner (1998, 2025). ¹⁰ This is where Hayek's considerations on ancient Rome become important. Similarly to contemporary neo-Republicans, ancient Rome is essential in Hayek's tradition of individual liberty, as he situates his definition of freedom in the footsteps of Roman authors such as Cicero and Livy (e.g. Hayek, 2011: 243–246). This leads to many commonalities between neo-Republicans and Hayek, notably an understanding of the relation between law and liberty that is at odds with the negative conception of liberty as non-interference.

However, I argue that this should not lead to the conclusion that Hayek and the neo-Republicans’ views are fully congruent. Rather, I contend that they part ways precisely due to Hayek's indifference to the form of government. ¹¹ While for neo-Republicans democracy is a necessary but non-sufficient condition for individual liberty, for Hayek it is neither sufficient nor necessary. Consequently, I ultimately suggest that, in saying that political participation is not necessary for individual freedom, Hayek remained more aligned with the classical Roman conception of freedom than contemporary neo-Republicans. When it comes to his conception of freedom under the law, Hayek should thus be seen as a distant, albeit unexpected, heir to the classical republican tradition.

The argument proceeds as follows. First, I show that Hayek departs from the traditional liberal view that the ancient world did not know individual freedom. Second, I expose why, on Hayek's account, ancient Greece is the birthplace of individual liberty. Thirdly, I contend that Hayek's intellectual journey to ancient Greece reveals his liberalism to be indifferent to the form of government. Fourthly, I show that Hayek's definition of liberty is not the “classical” negative conception of liberty, nor is it fully aligned with the neo-Roman conception of freedom. Instead, I argue that Hayek's conception of freedom under the law, while seemingly idiosyncratic, largely aligns with classical republicanism as developed in ancient Rome by Livy and Cicero. In the conclusion, I explain why re-reading Hayek in that way is important, and critically assess Hayek's misreadings of ancient Greece and their implication for his theory of liberty.

Hayek's re-evaluation of the liberal reading of the ancients

The ancients in the liberal tradition

The novelty of Hayek's views on the ancient world emerges when contrasted with the conventional liberal appreciation of it, classically exposed in Constant's lecture “The Liberty of Ancients Compared with that of Moderns” [1819]. Here, Constant declares that freedom for the moderns “must consist of peaceful enjoyment and private independence” (2010: 316). This liberty primarily involves “the right to be subjected only to the laws, and to be neither arrested, detained, put to death or maltreated in any way by the arbitrary will of one or more individuals” (2010: 310). ¹² Additionally, it includes the freedom of expression, of job occupation, of movement, of association, of religion, and the right to property (2010: 311). Constant concludes, importantly, that modern liberty also comprises “everyone's right to exercise some influence on the administration of the government” (2010). By contrast, the ancients enjoyed a type of liberty which “consisted in exercising collectively, but directly, several parts of the complete sovereignty” (2010). Crucially, however, “they admitted as compatible with this collective freedom the complete subjection of the individual to the authority of the community” (2010). Constant famously concludes that “among the ancients the individual, almost always sovereign in public affairs, was a slave in all his private relations” (2010; my emphasis). ¹³

This contrast between modern and ancient liberties and depiction of the individual in the ancient world as subjected to the all-encompassing control of the community were echoed by Constant's successors in the liberal tradition. For instance, John Stuart Mill advances a similar assessment in On Liberty [1859], affirming that “[t]he ancient commonwealths thought themselves entitled to practise, and the ancient philosophers countenanced, the regulation of every part of private conduct by public authority” (1989: 16). A century later, Isaiah Berlin explicitly drew on Constant's distinction to build his dichotomy between the “negative” and “positive” understandings of liberty in his 1958 essay on “The Two Concepts of Liberty” (see 2002, 509). Berlin brings a nuance to Constant's account, arguing that while the Greeks did not have the conception of individual liberty, they did enjoy a degree of it in practice and were therefore not the slaves in their private relations described by Constant. Nonetheless, for Berlin “the doctrine [of individual liberty] is comparatively modern,” as “[t]here seems to be scarcely any discussion of individual liberty as a conscious political ideal (as opposed to its actual existence) in the ancient world” (2002: 176; see also 32–34).

Hayek's innovation: grounding the liberal tradition in antiquity

Hayek departs from such assessments, as he already makes clear in The Road to Serfdom [2007], where he proclaims that western countries have been

rapidly abandoning not the views merely of Cobden and Bright, of Adam Smith and Hume, or even of Locke and Milton, but one of the salient characteristics of Western civilization as it has grown from the foundations laid by Christianity and the Greeks and Romans. Not merely nineteenth- and eighteenth-century liberalism, but the basic individualism inherited by us from Erasmus and Montaigne, from Cicero and Tacitus, Pericles and Thucydides, is progressively relinquished. (2007: 67–68)

For Hayek, the origins of individualism and individual liberty, the central traits of what he calls “Western civilization,” are thus to be found in the ancient world, in Greece and Rome. In that perspective, he establishes a direct continuity between these early instantiations of individual liberty and key figures of modern liberalism.

Hayek is aware that this sense of unity is of his own making, since, as exposed above, central figures in the liberal tradition denied such connection. Hayek underlines this departure, affirming that “the first people who had clearly formulated the ideal of individual liberty were the ancient Greeks and particularly the Athenians during the classical period of the fifth and fourth century BC” and that “[t]he denial by some nineteenth century writers that the ancient knew individual liberty in the modern sense is clearly disproved” (1978: 122). In The Constitution of Liberty [1960], Hayek is more specific, noting that “the misrepresentation of Greek liberty traces back to Thomas Hobbes and became widely known through Benjamin Constant” (2011: 238). In particular, he explains that

It has often been said that the ancients did not know liberty in the sense of individual liberty. This is true of many places and periods even in ancient Greece, but certainly not of Athens at the time of its greatness (or of late republican Rome); it may be true of the degenerate democracy of Plato's time, but surely not of those Athenians to whom Pericles said that “the freedom which we enjoy in our government extends also to our ordinary life [where], far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes” […] (2011: 237; my emphasis)

Thus, Hayek salvages not only Republican Rome as a land of individual freedom, as do contemporary neo-Republican authors such as Pettit (1997) or Skinner (1998), but also Athens during the Periclean period. ¹⁴ To make the latter point, Hayek relies on the account given by Thucydides’ Pericles in the canonical “Funeral Oration.” ¹⁵ Importantly, then, for Hayek, at least a version of Athenian democracy enabled individual liberty to flourish, before the advent of “the degenerate democracy of Plato's time.”

Beyond reevaluating Athens as a land of liberty, Hayek uses it, alongside Rome, to construct his typology of liberalisms. In effect, Hayek distinguishes between two strands of liberalism: the “true” liberal tradition, which built on the foundations of individual liberty laid out in the ancient world, and the “false,” perverted tradition, which re-interpreted the first strand under the auspices of rationalism and constructivism. ¹⁶ In that sense, Hayek writes that the “true” liberal tradition, “much older than the name ‘liberalism’, traces back to classical antiquity” (1978: 119; my emphasis) and adds that this tradition “provided the model of political institutions which most of the European nineteenth-century liberalism followed” (1978). Unfortunately, according to Hayek, these political institutions have been re-interpreted by “a rationalist or constructivistic view which demanded a deliberate reconstruction of the whole of society in accordance with the principles of reason” (1978: 120). For Hayek, this second tradition, while usurping the word “liberal” (1978: 132), became nothing less than “the ancestor of modern socialism” (1967: 160).

Ancient Greece and the origins of individual freedom

Ancient Greece: the birthplace of freedom under the law

Thus, while for Hayek liberalism and individual liberty have classical roots and are therefore not only a modern phenomenon, it remains to be seen why he could claim that “[t]he first people who had clearly formulated the ideal of individual liberty were the ancient Greeks” (1978: 122). For Hayek, this is so due to the ancient Greeks’ concept of isonomia, (equality of all under the law), which he sees as the antique prefiguration of the Rule of Law (2011: 237–243). In that respect, Hayek writes that

Their conception of freedom was of freedom under the law, or of a state of affairs in which, as the popular phrase ran, law was king. It found expression, during the early classical periods, in the ideal of isonomia or equality before the law, which, without using the old name, is still clearly described by Aristotle. This law included a protection of the private domain of the citizen against the state […] (1978, 122; my emphasis)

Thus, it is notable that for Hayek ancient Greeks experienced and originated what Constant regarded as a key feature of modern liberty, i.e., “the right to be subjected only to the laws” (Constant, 2010: 310). Also, by affirming that ancient Greeks had “a protection of the private domain of the citizen against the state,” Hayek forcefully refutes Constant's claim that in the ancient world prevailed “the complete subjection of the individual to the authority of the community” (Constant, 2010: 311).

Importantly, by claiming the ideal of “freedom under the law” Hayek means to affirm his belonging to a tradition which sees no conflict between law and freedom. Here, Hayek once again identifies a stark contrast between two philosophical traditions, which overlaps with his typology of two liberalisms:

the contrast we find throughout history between those to whom law and liberty were inseparable and those to whom the two were irreconcilable. We find one great tradition extending from the ancient Greeks and Cicero through the Middle Ages to the classical liberals like John Locke, David Hume, Immanuel Kant and the Scottish moral philosophers, down to various American statesmen of the nineteenth and twentieth centuries, for whom law and liberty could not exist apart from each other; while to Thomas Hobbes, Jeremy Bentham and many French thinkers and the modern legal positivists law of necessity means an encroachment on freedom. (2013, 49–50; my emphasis)

This is especially noteworthy because according to contemporary neo-Republicans (e.g. Pettit, 2009) a key divide between the neo-Roman and liberal conceptions of freedom concerns their diverging assessments of the relation between law and liberty: while for the latter there is a conflict between the two, for the former law is constitutive of liberty. Hayek here explicitly rejects the view that every law necessarily means an encroachment on freedom: ¹⁷ rather, for Hayek there is no conflict between law and freedom, since the former is necessary for the latter's existence.

Crucially, however, this only applies for the “true” conception of law. In that respect, Hayek maintains that the essential problem in contemporary democracies is that the word “law” has lost its initial meaning, as it now designates any rule laid down by a legislature, regardless of its content. For Hayek, this results from the reign of a procedural understanding of law, whereby we derive the meaning of “law” from its source, not its substance. On Hayek's account this conception is incompatible with the Rule of Law, which is intrinsically tied to a substantive conception of law, according to which only rules that conform to certain general attributes can be laws (2011: 309–312; 2013: 348). Hayek concludes that with this incorrect conception of law it is impossible to achieve the ideals of liberal constitutionalism: “the most important of the crucial terms on which the meaning of the classical formulae of liberal constitution turned was the term ‘Law’,” Hayek explains, “and all the old principles lost their significance as the content of this term was changed” (2013: 436).

Ancient Greece and the “true” meaning of law

To recover the “true” meaning of law, the only compatible with individual liberty, Hayek urges us to (re)turn to ancient Greece. First, Hayek wants to re-actualize a terminology used by ancient Greeks to distinguish between a made order and an order that develops spontaneously, i.e., respectively taxis and cosmos (1978: 73). The key difference is that a cosmos does not have any predefined purpose because it has not been deliberated made by men, by contrast with a taxis which is organized around a specific end whose members must serve (1978: 74). On Hayek's account, one of the fundamental insights on which depends the preservation of a free society is to acknowledge that these two orders are distinct, “and that their distinctiveness is related to the two different kinds of rules or laws which prevail in them” (2013: 2).

In that context, Hayek proposes to revive another distinction from ancient Greece: that between nomos and thesis, because “we have come to use the word ‘law’ or its equivalents ambiguously for both” (1978: 76). In Hayek's words,

By nomos we shall describe a universal rule of just conduct applying to an unknown number of future instances and equally to all persons in the objective circumstances described by the rule, irrespective of the effects which observance of the rule will produce in a particular situation. […]

In contrast, we shall use thesis to mean any rule which is applicable only to particular people or in the service of the ends of rulers. […] (1978, 77)

While these universal rules of just conduct (nomos) “lead to the formation of an equally abstract and end-independent spontaneous order or cosmos,” commands directed at particular people (thesis) “are the necessary instrument of running an organisation or taxis” (1978: 77).

By returning to the ancient Greek distinction between these two types of rules we can thus recover the true meaning of law as nomos, i.e., universal rule of just conduct. Only with this conception of law can the “government by law” replace the “government by men,” an ideal which Hayek also traces back to ancient Greece, and to Aristotle in particular (see Hayek, 2011: 241–243). Hayek explains that these ideals of government by law and freedom under the law were subsequently developed in the Roman Republic, notably by Livy, Tacitus, and, most prominently, Cicero (2011: 244; see also 1978: 122–123). For Hayek, Cicero even “became the main authority for modern liberalism, and we owe to him many of the most effective formulations of freedom under the law” (1978). In particular,

No other author shows more clearly that during the classical period of Roman law it was fully understood that there is no conflict between law and freedom and that freedom is dependent upon certain attributes of the law, its generality and certainty, and the restrictions it places on the discretion of authority. (2011: 244–245)

Noticeably, Hayek claims that the founders of modern liberalism based their doctrine on this substantive understanding of the word “law” (2013: 436), to the extent that “[t]he traditional conception of the law as nomos underlies ideals like those of the Rule of Law, a Government under the Law and the Separation of Powers” (1978: 79). In particular, concerning the latter Hayek explains that

the classical theory of the separation of powers presupposes that the ‘legislation’ which was to be in the hands of a representative assembly should be concerned only with the passing of laws (which were presumed to be distinguishable from particular commands by some intrinsic property), and that particular decisions did not become laws (in the sense of nomoi) merely because they emanated from the ‘legislature.’ […] (1978, 93)

Thus, while only the legislature should have the competence to lay down laws, “whether a particular resolution of that body is valid law must be determinable by a recognisable property of that resolution” (1978: 93). The meaning of the word “law” is therefore of great importance: the lawmaking entity needs need to be constrained to lay down true laws, which can be recognized as such in view of objective, recognizable criteria, enforceable by an independent court (1978: 94).

What, then, are the general attributes of these “true” laws, according to Hayek? First, true laws must be general and abstract, consisting of “long-term measures, referring to yet unknown cases and containing no references to particular persons, places, or objects” (2011: 315). “The second chief attribute which must be required of true laws,” Hayek adds, “is that they be known and certain” (2011), while “[t]he third requirement of true law is equality” (2011: 316), i.e., they should apply to all equally. ¹⁸

The crisis of democracy, past and present

For Hayek, there must therefore be a fundamental difference between legislation proper and government: while the former is charged to lay down “true” laws, the latter is concerned with administrating the government apparatus. “Government,” Hayek explains, “is to act on concrete matters, [with] the allocation of particular means to particular purposes,” and therefore functions through particular commands (2013: 366). ¹⁹ Crucially, Hayek considers that the institutional body in charge of government “need not and should not be the same as that which lays down the nomos”: rather, “[i]t should itself be under the nomos laid down by another representative body, which determine the limits of the power which this body could not alter” (1978: 94–95; see 2013: 365–368). For Hayek, the original sin of modern constitutional government is precisely to have placed these two distinct powers in the hands of the same assembly. “The effect of this,” Hayek explains,

was necessarily that the supreme governmental authority became free to give itself currently whatever laws helped it best to achieve the particular purposes of the moment. But it necessarily meant the end of the principle of government under the law. (2013: 437)

Additionally, Hayek regrets that, after the modern democratic revolutions, we mistakenly concluded that, because the representative assembly is the supreme power, its power should also be unlimited (1978: 93–94; 2013: 347–348). While the former is correct, the latter is profoundly dangerous, as it results in giving the legislature the power to give force of law to discrimination in favor of particular groups and to strive to achieve specific ends, which would be impossible if the legislature was restricted to issue laws properly understood. For Hayek, a democracy relying on such omnipotent parliament is bound to become a bargaining democracy, where democratic government is “the playball of all the separate interests it has to satisfy to secure majority support” (2013: 436). Ultimately, such unlimited democracy paves the way for totalitarianism (2013: 2).

Hayek seemingly regards this degeneration towards unlimited democracy as a transhistorical and inescapable feature of democracy, already at play in ancient Greece:

It seems to be the regular course of the development of democracy that after a glorious first period in which it is understood as and actually operates as a safeguard of personal freedom because it accepts the limitations of a higher nomos, sooner or later it comes to claim the right to settle any particular question in whatever manner a majority agrees upon. This is what happened to the Athenian democracy at the end of the fifth century […] (2013: 346)

In Hayek's eyes Athenian democracy at the end of the 5th century therefore faced the same predicament as contemporary democracies, in which predominates a “conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited” (2013: 1).

The Greek nomothetes and Hayek's Model Constitution

Nonetheless, Hayek specifies that he is only indicting unlimited democracy and that his critiques are therefore not a rejection of the “ideal” of democracy (2013: 3; see also 1978: 93, 96–97). For Hayek, the solution is to (re)establish a strong separation of power between the governmental and legislating powers, and thereby (re)submit the government to the law issued by the legislature.

This points towards Hayek's “Model Constitution,” ²⁰ in which a Legislative Assembly is charged with laying down the universal rules of just conduct (i.e., true laws), while a Governmental Assembly is tasked with administrating the government apparatus and providing services within the bounds established by the laws and without possibility to alter them. In addition, a Constitutional Court ensures that the rules issued by the Legislative Assembly conform to the general attributes of “true” laws, while controlling that the Governmental Assembly remains within its attributions (2013: 466–486). Finally, and crucially, as is characteristic of a free society according to Hayek, State coercion can only be used to enforce these rules of just conduct (2013: 447; 2011: 312).

In this institutional model, Hayek explicitly wants the members of the Legislative Assembly to mirror the nomothetes’ role from ancient Athens (1978: 94, 101). In effect, Hayek notes that his idea of having a “purely legislative assembly,” solely tasked with laying down the universal rules of just conduct, “is not entirely new”: “[s]omething like this,” he explains, “was attempted by the ancient Athenians when they allowed only the nomothetae, a distinct body, to change the fundamental nomos” (2013: 447).

The implications of Hayek's institutional proposal are far-reaching: in his eyes,

the restriction of the power of such a body [the legislature] to legislation proper would for the first time make possible that real separation of powers which has never yet existed, and with it a true government under the law and an effective rule of law. (1978: 96)

In fact, the only historical example worthy of these ideals is none other than ancient Athens, thanks to its institution of the nomothetes:

a purely “legislative” assembly in the sense in which the theorists of the separation of powers conceived it has never existed—at least not since the nomethetai of ancient Athens who appear to have possessed only the exclusive power of altering the rules of just conduct. (1978: 101)

Freedom and the form of government in Hayek's framework

After this journey back to ancient Greece with Hayek, one thing is particularly striking: Hayek's complete disregard for the aspect most associated with ancient Athens, i.e., direct democratic self-government.

In effect, Constant's observation that for the ancients liberty “consisted in exercising collectively, but directly, several parts of the complete sovereignty” and his description of the ancient individual as “almost always sovereign in public affairs” (2010: 311) find no echo in Hayek. What's more, despite his critiques of ancient liberty, Constant reminded his audience that “[p]olitical liberty is its [individual liberty] guarantee, consequently political liberty is indispensable” (2010: 323). Constant thereby made clear that “[his] observations do not in the least tend to diminish the value of political liberty” (2010), and concluded his speech with a call “to learn to combine the two [sorts of freedom] together” (2010: 327), aware that “the danger of modern liberty is that […] we should surrender our right to share in political power too easily” (2010: 326).

On his part, after affirming in a typical liberal fashion that a people having political freedom “is not necessarily a people of free men,” Hayek crucially adds that “nor need one share in this collective freedom to be free as an individual” (2011: 61–62; my emphasis). ²¹ Paradoxically, then, Hayek ends up devaluating political liberty while salvaging Athenian democracy, whereas Constant ultimately insisted on the necessity of political liberty, despite underlining the lack of individual liberty associated with its practice in the ancient world.

In fact, in his discussion of ancient Greece, Hayek already makes sure to distinguish between the concept of isonomia and that of democracy, explaining that the former is not necessarily tied to the latter. According to Hayek, this is also the view held by classical thinkers:

The concept [of isonomia] seems to be older than that of demokratia, and the demand for equal participation of all in the government appears to have been one of its consequences. […] The Greeks clearly understood that the two ideals, though related, were not the same: Thucydides speaks without hesitation about an “isonomic oligarchy,” and Plato even uses the term “isonomy” in deliberate contrast to democracy rather than in justification of it. (2011: 240–241)

Thus, Hayek appears to operate a similar gesture as the one he attributes to Plato, namely to re-claim the term isonomia in deliberate contrast to a democracy that came to disregard it.

Disentangling isonomia from democracy is part of Hayek's larger point of separating freedom from the form of government. “It can scarcely be said that equality before the law necessarily requires that all adults should have the vote; the principle would operate if the same impersonal rule applied to all,” Hayek declares (2011: 169). ²² Thus, as recognized by Hayek himself, his liberalism is compatible with authoritarianism, i.e., a non-democratic regime. In effect, while explaining that the opposite of democracy is authoritarianism, and that, on the other hand, the opposite to liberalism is totalitarianism, Hayek importantly adds that “[n]either of the two systems necessarily excludes the opposite of the other: a democracy may well wield totalitarian powers, and it is conceivable that an authoritarian government may act on liberal principles” (2011: 166; see also 2007: 110). On Hayek's account, democracy is simply “a method of government,” namely “majority rule” (2011: 167). Therefore, “it clearly refers to a problem different from that of liberalism”: “[l]iberalism is a doctrine about what the law ought to be, democracy a doctrine about the manner of determining what will be the law,” Hayek explains (2011; my emphasis).

Here, Hayek's definition of liberalism is congruent with the definition he gives of the Rule of Law, which he conceives as “a doctrine concerning what the law ought to be, concerning the general attributes that particular laws should possess” (2011: 310). Overall, “[t]he rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal” (2011: 311). This ideal thus prevails in a society when its members are solely ruled by laws which conform to the general attributes required by the Rule of Law (generality, equality, certainty), i.e., by substantive, “true” laws.

As re-emphasized by Hayek, law understood in this substantive sense “differs from law in the merely formal sense by the character of the rules and not by their origin” (2011: 223–224; my emphasis). Thus, Hayek ends up substantially devaluing the importance of the source of the law, as the only relevant criterion for a liberal order is for its members to solely be ruled by “true” laws, which are not such by their source, but by their substantive characteristics. Therefore, it makes no meaningful difference whether the political body issuing these laws is democratic in its composition; what matters is that it is effectively limited to only lay down the nomos, and that State coercion is only employed to enforce these rules. This is why Hayek ends up ignoring the very aspect that, on Constant's account, made it so that citizens in Athens did have some freedom, i.e., democratic self-rule: for Hayek, Athenians were free not because they collectively ruled themselves, but because they were ruled by “true” laws laid down by the nomothetes, thereby realizing the liberal ideal of freedom under the law.

By entertaining the idea that individual liberty is compatible with authoritarianism, Hayek condones the worrying possibility of an “authoritarian liberalism.” ²³ At the same time, Hayek's claim that individual freedom prevailed in the Athenian democracy means that it constitutes a liberal democracy in his framework. ²⁴ In other words, not only theoretically but also practically there is evidence that direct democracy can be liberal and compatible with individual freedom in Hayek's framework. Thus, fundamentally, Hayek's liberalism is agnostic regarding the form of government. Starting from the classical liberal argument according to which majority rule is not a sufficient guarantee to ensure that a law is not tyrannical (e.g. Constant, 2010: 175–177; Mill, 1989: 7–8), Hayek pushes this insight to its extreme: for him, not only is it not a sufficient guarantee, it ultimately is of little importance who the lawgivers are when it comes to safeguarding individual liberty. ²⁵ What matters, by contrast, is that the lawmaking entity is constrained to issue laws properly understood.

Re-situating Hayek's conception of freedom

Hayek v. Berlin's negative freedom

Rather than being undemocratic, then, Hayek's conception of freedom is indifferent to the form of government. This conclusion could align Hayek's conception of freedom with the classical negative conception of freedom typically associated with the liberal tradition, ²⁶ since, as acknowledged by Berlin in his seminal essay, there is no necessary connection between freedom so understood and democracy.

For Berlin, being free according to the negative conception of freedom means “not being interfered with by others”; thus “[t]he wider the area of non-interference the wider my freedom” (2002: 170). Consequently, “liberty in this sense,” Berlin explains, “is not incompatible with some kinds of autocracy, or at any rate with the absence of self-government” (2002: 176). This is so because such conception of freedom “is principally concerned with the area of control, not with its source” (2002). Thus, Berlin continues, just as a democracy could deprive the individual of many liberties she could enjoy under another form of government, “so it is perfectly conceivable that a liberal-minded despot would allow his subjects a large measure of personal freedom” (2002). Ultimately, “there is no necessary connection between individual liberty and democratic rule” because they each answer a different question, respectively “‘How far does government interfere with me?’” and “‘Who governs me?’” (2002: 177). Finally, in this framework there is an opposition between law and liberty, that Berlin finds exemplified in Bentham's view that “every law is an infraction of liberty” (2002: 195; see also 41).

As mentioned earlier, Hayek explicitly situates himself in opposition to the latter, endorsing the view that “there can be no liberty without law” (2007: 119). Thus, the conflict is not between law and freedom; rather, “[t]he conflict is between different kinds of law” (2007). More precisely, it is between the kind of law that is consistent with the Rule of Law and the one which “gives in effect the authority power to do what it thinks fit to do” (2007). Therefore, the question is not about interference per se, but whether this interference is consistent with the Rule of Law: “[w]hile every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims,” Hayek explains, “under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action” (2007: 112; see also 118). This is why “[n]othing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law” (2007).

Thus, I suggest that Hayek's conception of freedom responds to a third and different question than the one the classical liberal conception is concerned with: not “how far,” but “how does the government interfere with me?” For Hayek, as long as the coercive activities of the State are restricted by the Rule of Law, one's freedom is not infringed upon: “when we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free,” Hayek declares (2011: 221). In that setting, one cannot be arbitrarily coerced and therefore enjoys individual freedom, defined as “[t]he state in which a man is not subject to coercion by the arbitrary will of another or others” (2011: 58).

This connects to another dimension of Hayek's conception of freedom that differs from the classical negative conception: for Hayek, freedom is a legal status rather than a predicate of actions. While “[t]he question of how many courses of action are open to a person is, of course, very important,” Hayek maintains that

it is a different question from that of how far in acting he can follow his own plans and intentions, to what extent the pattern of his conduct is of his own design, directed toward ends for which he has been persistently striving rather than toward necessities created by others in order to make him do what they want. […] (2011: 60–61; see also 68)

The former is only possible in an order where individuals are exclusively governed by rules consistent with the Rule of Law. By coming into existence, these different rules create and delineate the individuals’ private, protected sphere, in which they are assured against coercion by other individuals and the State, and therefore free to pursue their own ends (Hayek, 2007: 112–117; 2011: 206, 312, 315; 2013: 465).

Reflecting on his conception of freedom, Hayek remarks that “[i]t so happens that the meaning of freedom that we have adopted seems to be the original meaning of the word,” which referred to the distinction between the free man and the slave (2011: 59). In that respect,

The numerous decrees for the freeing of slaves that have been found give us a clear picture of the essentials. There were four rights which the attainment of freedom regularly conferred. […] first, “legal status as a protected member of the community”; second, “immunity from arbitrary arrest”; third, the right to “work at whatever he desires to do”; and, fourth, the right to “movement according to his own choice.” (2011: 70).

On Hayek's account, “[t]his list contains most of what in the eighteenth and nineteenth centuries were regarded as the essential conditions of freedom.” ²⁷ If it omits the right to own property it is “only because even the slave could do so”: with this right, this list “contains all the elements required to protect an individual against coercion” (2011: 70–71). Overall, “[t]he freedom of the free may have differed widely,” Hayek continues,

but only in the degree of an independence which the slave did not possess at all. It meant always the possibility of a person's acting according to his own decisions and plans, in contrast to the position of one who was irrevocably subject to the will of another, who by arbitrary decision could coerce him to act or not to act in specific ways. The time-honored phrase by which this freedom has often been described is therefore “independence of the arbitrary will of another.” (2011: 59)

Hayek v. neo-Republicans

That Hayek defines freedom as the “independence of the arbitrary will of another” necessarily evocates the way freedom has been defined by neo-Republican authors. ²⁸ For instance, according to Skinner, under the conception of freedom as independence “what it means to be free is that you are not subject to the exercise of arbitrary power” (2025: 1), while Pettit explains that enjoying freedom as non-domination means that “you enjoy the absence of interference by arbitrary powers” (Pettit, 1997: 25).

For neo-Republican authors this conception of freedom finds its origins in Republican Rome, in the writings of authors such as Cicero, Livy, or Tacitus, and in the Republic's institutions and laws (e.g. Pettit, 1997: 19; Skinner, 2025: 17–26). As mentioned earlier, Roman authors also have a central place in Hayek's tradition of individual liberty (e.g. Hayek, 1978: 122; 2011: 243–246). For neo-Republicans, freedom finds its original expression in the Roman distinction between the free and the slave (Pettit, 1997: 22; Skinner, 1998), a lineage that, as exposed above, Hayek also claims. Thus, like Hayek, Pettit and Skinner emphasize that freedom is a distinct legal status rather than a predicate of choices (Pettit, 1997: 25; Skinner, 2025: 3). In that way, for Pettit and Skinner too there is no necessary conflict between law and liberty: interference with/restriction on one's choices is not necessarily dominating nor forfeiting one's status as a free person (Pettit, 1997: 22–26; Skinner, 2025: 3). This aligns with Hayek's view that while true laws “eliminate certain choices open to him, they do not, as a rule, limit the choice to some specific action that somebody else wants him to take” (2011: 221): only in the latter case would one be made unfree.

However, I contend that these similarities should not lead to the conclusion that Hayek and the neo-Republicans’ views are fully aligned. Rather, I argue that they crucially differ in their answer to the question: on what conditions can a law be a non-arbitrary interference and therefore consistent with individual freedom? Neo-Republicans are adamant that their conception of freedom precisely avoids Berlin's view that there is no necessary connection between individual liberty and democracy. For them, to be non-arbitrary and non-dominating, a law must, to some extent, either be the expression of a democratic process and/or be democratically contestable (e.g. Pettit, 1997: 35; 2009; Skinner, 2025: 277–278). As exposed above, for Hayek this is not a necessary condition: thus, while for neo-Republicans democracy is a necessary but non-sufficient condition for individual liberty, for Hayek, it is neither.

Hayek: A distant heir to classical republicanism?

Ultimately, I propose that, in saying that a law need not be tied to participation to be non-arbitrary and thereby consistent with individual freedom, Hayek remained more aligned with classical republicanism than contemporary neo-Republicans.

This insight builds on scholars who have shown that the conception of freedom developed in ancient Rome had no connection with democracy, and who thereby criticized contemporary neo-Republicans for their reliance on classical republicanism (e.g. Kapust, 2004; Maddox, 2002; Urbinati, 2014). For instance, Nadia Urbinati explains that “the conceptualization of republican liberty in its Roman rendering was perfected through a direct confrontation with a democratic view of politics” characteristic of Athens (2014: 608). In that respect, she argues that the difference between the Roman conception of liberty (aequa libertas) and the Athenian one (isonomia) is respectively “one between liberty that does not require equal participation and liberty that requires parity in the political domain of decision-making” (2014). Similarly, Dan Edelstein and Benjamin Straumann (2023) recently advanced the claim that the understanding of liberty developed by Roman authors such as Cicero and Livy differs from the neo-Roman conception of freedom precisely because the former was not in any way tied to political participation.

Instead, these “Roman authors devised an alternative understanding of liberty that rested on the equality of legal rights,” according to Edelstein and Straumann (2023: 1037). The key difference with the neo-Roman view, they argue, “is that for Cicero and Livy, having the rule of law and equal rights […] is sufficient for having liberty” (2023: 1038). Under this conception of freedom, which Edelstein and Straumann name “paleo-Roman,”

as long as the law was the same for all, you were free; whether or not you participated in making the law was not a constitutive feature of liberty. In essence, this Roman theory was a theory of freedom as the rule of law and the guarantee of equal rights, especially due process rights. For this Roman concept of ‘legal liberty,’ as we call it, political participation was neither necessary nor sufficient. (2023, 1037; my emphasis)

This classical, paleo-Roman framework is one in which liberty cannot exist without the law. Importantly, if law is constitutive of liberty, it only applies for the right type of law. In effect,

This liberty is one that crucially cannot be had without the law, because it relies on the law's refusal to show special favours – that is, on its impartiality and generality. The underlying idea is that having law in this sense is tantamount to having liberty. (2023, 1043; my emphasis)

What's more, “in Livy's and especially Cicero's view,” Edelstein and Straumann explain, “it is not only the extent of the law that matters, but also its quality. If law has a certain quality it appears as the ultimate guarantee of liberty, and as constitutive of it” (2023: 1044). Yet, for the law to possess such quality, political participation is not necessary, because “participation in lawmaking was not a constitutive factor of republican liberty” (2023: 1043).

For Edelstein and Straumann, this “paleo-Roman” model exercised an important influence on the liberal tradition. They note that “[t]his identification of liberty with equality before the law ultimately found its most powerful expression among nineteenth-century liberals,” most notably with A.V. Dicey (2023: 1048). ²⁹ Building on their assessment, I suggest that Hayek took up and perpetuated this ancient conception of freedom into the twentieth century. Overall, once Hayek's endorsement of such “proto-liberal position” (2023: 1038) is acknowledged, it becomes easier to understand why Hayek's conception of liberty could be deemed unsatisfactory by his liberal critics.

Conclusion

Hayek urges us to look closer at the classical world in part “because of the direct significance that the experience of the ancients has for our time” (2011: 237). This much is clear in this paper's discussion of Hayek. For him, the ancient world is the cradle of the “true” liberal tradition because it is in ancient Greece and Rome that we find the origins of the twin ideals of freedom under the law and the Rule of Law. Besides, Hayek tells us that we lost sight of the ancients’ insights on what is necessary to realize these ideals: above all, holding the “true” conception of the law as nomos and having an institutional framework consistent with them. In his Model Constitution, Hayek therefore proposes to revive the institution of the nomothetes from ancient Athens, whose institutions constituted in his eyes the only historical example of a “true” separation of powers.

Reconnecting with the classical exposition of the ideal of freedom under the law also uncovers, on Hayek's account, that from its very beginnings it was indifferent to who lays down the law; what matters instead is that the lawgiving entity is constrained to issue only “true” laws. By claiming that political participation is neither necessary nor sufficient for individual freedom, Hayek's theory of freedom through the Rule of Law ultimately comes close to the classical republican conception of freedom developed in ancient Rome by authors such as Cicero and Livy. This has important consequences: tainted in that way by classical republicanism, Hayek's conception of freedom is not intrinsically tied to democracy, nor liberalism.

Of course, Hayek claims otherwise. For him, the Rule of Law “implies limits to the scope of legislation” by constraining the legislature to only issue rules that conform to certain general attributes, and, consequently, “whatever form [the Rule of Law] takes, any such recognised limitations of the powers of legislation imply the recognition of the inalienable right of the individual” (2007: 120–121). Thus, Hayek envisages the Rule of Law to provide substantive restrictions on legislation. It is this conclusion that Hayek's liberal and libertarian critics refute, convincingly challenging Hayek's claim that his defense of liberty through the Rule of Law is sufficient to guarantee a liberal order.

Indeed, “[c]annot law in this sense be oppressive and restrictive?”, asks Lionel Robbins, and “[m]ust we not distinguish between a liberal rule of law and others?” (1961: 68). For Richard Hamowy, a former student of Hayek, “in the absence of additional substantive limitations which go beyond the satisfaction of mere structural requirements, the law can become an instrument of government power as repressive as any which would exist under an arbitrary despotism” (1978: 296). Finally, Chandras Kukathas notes that “[t]he constraints imposed by the requirements of generality and equality are not sufficient to define the scope of the individual's protected domain in any substantive way” (1989: 159–160). Overall, Hayek's theory of liberty “leaves open the possibility of so many kinds of rules fulfilling the demands of liberty under the law that its value as a theory diminishes – or disappears” (1989: 164).

Ultimately, by exclusively requiring rules to conform to certain general attributes (generality, certainty, equality), the Rule of Law under Hayek's conception only imposes limits on the formal structure of these rules, since, within these constraints, “true” laws can have any particular, substantive content. Hayek admits as much, affirming that

for the Rule of Law to be effective it is more important that there should be a rule applied always without exceptions, than what this rule is. Often the content of the rule is indeed of minor importance, provided the same rule is universally enforced. (2007, 117; my emphasis)

Overall, while Hayek made clear that he had “no intention […] of making a fetish of democracy” (2007: 110), it is not a stretch to say that he makes a fetish of the Rule of (true) Law, which amounts to a necessary and sufficient condition for individual liberty. ³⁰

Besides, part of Hayek's argument to show the superiority of his conception of freedom resides in his claim that it corresponds to “the original meaning of the word” (2011: 59), which contributes to discrediting alternative conceptions of freedom (2011: 61–71). Yet, here too Hayek's account strikes as not necessarily convincing, most notably because his reading of Greece is debatable or even inaccurate on several aspects. The most contentious point is Hayek's claim that a similar conception of freedom prevailed in ancient Greece (including Athens) and ancient Rome. This claim primarily relies on Hayek's view that the Greeks understood freedom in terms of isonomia or equality under the law. Yet, while several studies on ancient Athens vindicate Hayek's view that it had a Rule of Law (e.g. Gowder, 2016: 78–96; Sealey, 1982), this should not lead to the conclusion that Athenians conceived freedom in this sense. ³¹ Second, and relatedly, Hayek's account relies on a peculiar reading of isonomia, which he sees as disconnected from political equality and participation and thereby as fully aligned with the Romans’ considerations on freedom. Yet, such reading of this crucial concept appears unwarranted (e.g. Urbinati, 2014; Gowder, 2016: 85–86). Overall, then, Hayek does not seem justified in transposing to Athens the classical republican understanding of freedom developed under the Roman Republic.

Additionally, one can remain skeptical of Hayek's depiction of Athens as a by and large liberal society where individual liberty prevailed as long as it was under the “right” institutional framework, i.e., before the advent of the unlimited democracy that Hayek finds depicted in Aristotle, Demosthenes, or Xenophon. ³² This is important because one area where Hayek's depiction of ancient Athens is fairly correct concerns its institutional framework and how it implemented a distinction between laws and decrees. In effect, when Hayek indicates that he draws inspiration from the way ancient Athenians “allowed only the nomothetae, a distinct body, to change the fundamental nomos” (2013: 447), he seems to be thinking of Athens after the institutional reforms established in 403 BC whereby Athenians formalized the distinction between decree (psephisma) and law (nomos). ³³ The decrees (psephismata) were voted by the popular assembly (ekklesia) and could not contradict the laws (nomoí), which were given and revised through a distinct process involving the nomothetes. ³⁴ While Hayek got the basics of this institutional arrangement right, ³⁵ this “true” separation of powers, as he would have it, between legislating proper and issuing decrees, was not tied to substantive liberal outcomes: instead, Athenian society combined liberal dimensions with (varying degrees of) illiberal aspects. ³⁶ Thus, the Athenian example rather tends to support Hayek's critics by illustrating that his institutional model and the premises on which it is built cannot, by themselves, secure a substantive liberal order as Hayek imagined it. Overall, that ancient Athens might disprove rather than support Hayek's claims points to the limits of his project of grounding his purposively liberal conception of freedom in a pre-liberal world.

Despite its flaws, however, Hayek's account of liberty within the law should not be ignored, notably because it complicates the contrast between republicanism and liberalism. In that respect, by excavating the classical roots of Hayek's conception of freedom, this paper suggests that contemporary neo-Republicans might too readily associate liberalism with a conception of freedom as non-interference. ³⁷ It also challenges the neo-Republican narrative that liberalism is tied to a conception of freedom invented in the modern world in reaction to the Atlantic Revolutions (e.g. Pettit, 1997; Skinner, 2025). Instead, Hayek's theory of liberty builds on a similar lineage as neo-Republicans by claiming not only the Roman heritage, but also the Lockean and the Whig heritages, and that of the American “Founding Fathers.” Despite these commonalities, Hayek has been largely ignored by neo-Republicans, ³⁸ who would gain by engaging with the liberals that endorsed (part of) their framework, rather than solely focusing on those that rejected it.

Additionally, Hayek's theory of freedom can speak to age-old questions on the relation between liberalism and democracy. Critiques of Hayek's thought on democracy usually focus on showing that he seeks to radically limit/restrict democracy. ³⁹ These critiques are important, but considering that the aim of limiting democracy is arguably shared by the liberal tradition at large, what primarily matters is how Hayek intends to limit democracy. Most liberal thinkers, Hayek included, start from the premise that democracy is not enough to safeguard individual liberty and can therefore be as dangerous as other forms of government if not properly limited. Schematically, it can be said that the main ways liberals have sought to limit democracy is (1) by limiting the content of what the political authority can rightfully do ⁴⁰ and, sometimes, (2) by limiting who can govern. ⁴¹ As this paper exposed, Hayek seeks to limit democracy by effectively constraining the law-giving authority to issue solely universal rules of just conduct. In doing so, Hayek's framework could, perhaps against its intent, leave more room for democracy than usually thought.

First, since Hayek's liberalism is indifferent to who lays down the law, it does not preclude nor impose a specific form of government. On his part, Hayek placed his hope in a disinterested elite to serve as the modern-day nomothetes of his Model Constitution. Hayek's premise is that laying down universal rules of just conduct is about representing the general opinion of what is right in society, and not about representing particular interests (1978: 95; 2013: 448). Hayek thus affirms that legislation proper must be “in the hands of a representative sample of the prevailing opinion, persons who would be secured against all pressure of particular interests” (1978: 95; see also 102, 116). To do so, Hayek favors a minimally democratic electoral scheme based on representation by age group (1978: 95, 103; 2013: 448–450) ⁴² , explicitly aimed at producing “a senate of wise and honourable men” (1978: 96).

Such selection method, however, appears unconvincing even from Hayek's own standards. In effect, it is unclear how this purposively elitist body could nonetheless constitute “a representative sample of the prevailing opinion.” Additionally, as noted by Christopher Martin, the features that Hayek envisages to insulate the lawmakers from factional politics, i.e., long mandate and non-re-eligibility, could just as much “turn them into a self-serving elite” (2013: 128). Finally, this scheme also goes against one of the key insights of Hayek's liberalism on the dispersion of knowledge in society, which constitutes a strong argument against the political dominance of a select few. ⁴³ This argument against epistocracy, coupled with Hayek's proclaimed objective that the lawmakers must be representative of the prevailing opinion, suggests that, if anything, Hayek's liberalism should value more democratic selection methods.

Second, Hayek's view that the Rule of Law is sufficient to limit political power and safeguard a liberal order means, as we saw, that his liberalism only minimally restricts the substantive content of what can be decided by the law-giving authority. Thus, there might be a certain democratic potentiality in the fact that Hayek's liberalism does not assign a predefined content to the rules of just conduct delimiting the private, protected sphere of individuals. Rather, he explicitly acknowledges that the extent of this sphere is not set in stone, as it will necessarily vary depending on the particular content of the universal rules of just conduct prevailing in each society at a given time (e.g. Hayek, 2011: 223, 226). ⁴⁴ There is therefore room for variability and self-determination within Hayek's liberalism, meaning that its specific content will only take shape as a given society's members lay down the rules of just conduct ordering their society. It might be, then, that the very liberal weakness of Hayek's framework ⁴⁵ could make his liberalism more accommodating of democracy than envisaged by his sympathizers and critics alike.