Constitutional law
by F.A.Hayek "Law,Legislation and Liberty"
To the rules which we are in the habit of calling 'law' but which
are rules of organization and not rules of just conduct belong in the
first instance all those rules of the allocation and limitation of the
powers of government comprised in the law of the constitution,
They are commonly regarded as the `highest' kind of law to which a
special dignity attaches, or to which more reverence is due than to
other law.
But, although there are historical reasons which explain this, it would be more appropriate to regard them as a superstructure erected to secure the maintenance of the law, rather than,as they are usually represented, as the source of all other law.
The reason why a particular dignity and fundamental character
is attributed to the laws of the constitution is that, just because
they had to be formally agreed upon, a special effort was required
to confer on them the authority and respect which the law had long enjoyed.
Usually the outcome of a long struggle, they were known to have been achieved at a high price in the comparatively recent
past. They were seen as the result of conscious agreement that ended long strife and was often ceremoniously sworn to, consisting of principles whose infringement would revive sectional conflict or even civil war.
Frequently they were also documents which for the first time conceded equal rights as full citizens to a numerous and hitherto oppressed class.
Nothing of this, however, alters the fact that a constitution is
essentially a superstructure erected over a preexisting system of
law to organize the enforcement of that law.
Although, once established, it may seem `primary' a in the logical sense that now the other rules derive their authority from it, it is still intended to support these preexisting rules.
It creates an instrument to secure law and order and to provide the apparatus for the provision of other services, but it does not define what law and justice are.
It is also true, as has been well said, that `public law passes but
private law persists'.
Even when as a result of revolution or conquest the whole structure of government changes, most of the rules of just conduct, the civil and criminal law,
will remain in forceeven in cases where the desire to change some of them may have been the main cause of the revolution.
This is so because only by satisfying general expectations can a new government obtain the allegiance of its subjects and thereby become `legitimate'.
Even when a constitution, in determining the power of the different
organs of government, limits the power of the lawmaking assembly proper, as I believe
every constitution should and
early constitutions intended to do, and when for this purpose it defines the formal properties which a law must possess in order to be valid, such a definition of rules of just conduct would itself not be a rule of just conduct.
It would provide what H. L. A, Hart has called a `rule of recognition', enabling the courts to ascertain whether particular rules possess those properties or not; but it would not itself be a rule of just conduct.
Nor would such definition by the rules of recognition
alone confer on the preexisting law its validity. It would provide a guide for the judge, but, like all attempts to articulate conceptions underlying an existing system of norms, it might prove inadequate, and the judge might still have to go beyond (or restrict) the literal meaning of the words employed.
In no other part of public law is there greater resistance to the
denying to it the attributes of rules of just conduct than in constitutional law.
It seems that to most students of the subject the contention that the law of the constitution is not law in the sense in which we describe the rules of just conduct as law has appeared to be just outrageous and not to be deserving of consideration.
Indeed for this reason the most prolonged and searching attempts to arrive at a clear distinction
between the two kinds of law, those made in Germany during the later part of the last century concerning what was then called law in the `material' (or `substantive') and law in the merely `formal' sense, could not lead to any result;for none of the participating writers could bring themselves to accept what they saw as the inevitable but, as they thought, absurd conclusion, namely that constitutional law would, on any sensible principle of distinction,have to be classed with the law in the merely formal and not with law in the material sense.
ハイエクの憲法論である。
正月になると一部の新聞で憲法論が盛んになるが、憲法とはそもそもなにかが論じられることはない。
ハイエクによると「憲法という法は、正しい行為ルールを法として叙述しているものという意味での法ではない」
そして、「具体的な意味をもつ法としてではなく、単に形式的な法として分類されなければならない」
さらに、憲法とは、”憲法より前に存在する法体系の中の法ルール（privatelaw=私法）を支持するものだが、憲法という公法=publiclawから正しい行為（=just conduct)が導かれるわけではない。”
「公法は移り変わるが私法は持続する」−public law passes but private law persists.
つまり、憲法という公法はそこから他の法が導かれる法源とはなりえないのである。
法の本質は歴史的産物であり憲法の前に存在する私法の中にある。
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