HAYEK ON LAWYERS IN A DEMOCRACY

Friedrich A. von Hayek, The Collected Works of F. A. Hayek: Volume 15, The Market and Other Orders), edited by Bruce Caldwell (Indianapolis: Liberty Fund, 2014) (From "The Political Ideal of the Rule of Law, Lecture I: Freedom and the Rule of Law: A History Survey (National Bank of Egypt, Fiftieth Anniversary Commemoration Lectures)": ("The lawyer who regards himself merely as the executive of the popular will frequently will have to work out consequences of a democratic decision which, though unquestionably implied by it, were far from being present to the minds of those who made it. Yet the fact that certain consequence follow from a decision is often taken as evidence that these consequences were wanted. The lawyer who is nothing but a lawyer cannot but draw those conclusions. Perhaps it is right that the lawyer, as the servant of the democratic will, should concern himself exclusively with what in fact is the law. But then, with all dues respect, it must be said that the law which guards our liberty is too important a matter to be left entirely in the hands of the lawyers. It is perhaps easy to explain why today the discussion of the law is almost entirely conducted among the people whose professional concern is what the law is rather than what it ought to be, but it is certainly unfortunate. Such a situation becomes decidedly dangerous when it is combined with a tendency, so often found among contemporary legal theorists, to treat the fact that a law has been passed as proof that it was necessary--because, as we are often told, chaos would otherwise have arisen--and to treat the actual development as evidence that it was inevitable or desirable. Though their professional concerns may explain this attitude of many lawyers, they are certainly speaking beyond their book in thus defending the development of which they were the instrument. A democracy, if it is to achieve its aspirations, probably needs, even more urgently than any other kind of political order, systematic criticism of the total result which its separate acts jointly produce." Id. at 121, 126-127.).