Law Legislation and Liberty; A. Shenfield

558 and argument of masterly vigor and profundity. The whole three-part work will surely be a landmark in the development of fundamental political and legal philosophy." The trilogy has now been com pleted. The second volume, The Mirage of Social Justice, was pub lished not long after the first, but the world had to wait until May 1979 for the appearance of the third, The Political Order of a Free People. It is now possible to see whether the high expectations aroused by the first volume have been fulfilled. The Mirage ofSocial Justice opens with an examination of the rules governing the spontaneous order or cosmos, which was presented as the order of the free society in the first volume of the trilogy. The rules, we are told, are a device for coping with our inevitable ignorance of more HAYEK'S COMPLETED TRILOGY 559 than a small part of our relation-zon. By contrast the rules of a made ships with other persons in the order are concrete, positive, and sub Great Society. ' ject to frequent change. Hence there If we were omniscient, there arises the fundamental difference would be Iittle need for general between the functions of a judge or rules, for we could then deal with lawgiver and those of an adminis each other in the ad hoc way which trator.

we normally apply within our small What is the relation between the families. Here Hayek rests his rules of a spontaneous order and analysis on what has been for many justice? In the first volume of his years the rock bottom of his most trilogy Hayek lingered for a consid profound work, namely the role of erable time on the nature of law, but knowledge, or more importantly the here he takes it further in an absence thereof, in human relation-onslaught on the doctrines of legal ships. It is because freedom's famous positivism, namely that all law is but too often misunderstood ~~invisi-the expression of the will of a legis ble hand" enables us to produce a lator, and that justice has no mean system despite the narrow limits of ing other than the prescription of our knowledge, that the free society such law. From Hobbes, Bentham, is so superior to all unfree societies, and Austin to Kelsen these doc which need a degree of knowledge trines have had a powerful influ beyond the capacity of man to en-ence, all the more because they have compass. This is not a matter only of been expounded by scholars of very economic relationships. It extends to high eminence.

all the relationships which make up Hayek is not the first to cri t the spontaneous order of the Great icize these doctrines, but his in Society. sight into the difference between a spontaneous and a made order gives The Spontaneous Order his criticism a thrust which is espeThe rules of a spontaneous order cially his own. Thus he says (page are abstract, normally negative in 46): HIt is evident that so far as legal character, and long-term in applica-rules of just conduct, and particu tion. Thus the commandment ~~thou larly the private law, are concerned, shalt not steal" names no specific the assertion of legal positivism that article or person of which or from their content is always an expres whom there is to be no theft, lays sion of the will of the legislator is down only a negative, not a positive, simply false. This has been shown duty in relation to other people's again and again by the historians of property, and has a timeless hori-private law and especially of the 560 THE FREEMAN September common law. It is necessarily true only of those rules of organization which constitute the public law; and it is significant that nearly all the leading modern legal positivists have been public lawyers and in addition usually socialists organization men, that is, who can think of order only as organization, and on whom the whole demonstra tion of the eighteenth century thinkers that rules of just conduct can lead to the formation of a spontane ous order seems to have been lost."

And (page 53): ctLegal positivism is in this respect simply the ideology of socialism and of the omnipotence of the legislative power"; and further (page 55): ctIt was the preva lence of positivism which made the guardians of the law defenseless against the new advance of arbi trary government." Hayek's lengthy and painstaking analysis of legal positivism ranks with the most profound work which he has ever produced, and by itself would make this volume of his tril ogy an outstanding achievement. But it is only an introduction to the volume's central argument. Social Justice a Mirage of Envy and Hatred Who can be just or unjust?, asks Hayek. Only human beings acting purposively. Hence individuals can be just, groups acting as groups can be just, governments can be just. But society cannot. For society is an abstract or spontaneous order ,not a purposive group. Social or distribu tive justice is meaningless in a spon taneous order (a cosmos);it can have meaning only in an organization (a taxis). Hence the idea of social jus tice is a mirage. It is well known that in practice it turns out to be in stitutionalized envy and hatred. But it is worse than that, for it is built on ideological sand. As between men justice and injustice have meaning only when it is men who do right or wrong.

We all understand that it makes no sense to talk ofhuman injustice if a volcano or lightning kills one man and not another, if it rains gently on one farmer but destructively or not at all on another, or if some are born clever and others stupid, for no man was responsible for fortune or mis fortune in these cases. We also un derstand that if a virtuous woman whose price is beyond rubies chooses to marry one man and not another, the latter cannot claim to be the victim of injustice, even though here purposive human action is the cause of his discomfiture; for no man has a right to command the affections of any woman, and the woman in this case has done no injustice in exercis ing her choice. We may even under stand that it is not injustice if some are born with the cultural heritage of an Eskimo and others with that of a European, though here again 1980 HAYEK'S COMPLETED TRILOGY 561 chains of human action are behind the difference.

But when we see one man to be richer than another, with no discern ible moral superiority or perhaps with a clear moral inferiority, many of us easily succumb to the seductive notion that injustice must be at work. Hence those who talk of social justice can persuasively declare in such a case that success (except their own) is due to injustice, and that therefore they must take by force from .the more successful to give to the less successful (as long as the latter are their clients). In prac tice, as we shall see below, they only promise to give to the less success ful. Once they have the power so to do, what they do turns out to be somewhat different. Voluntary Exchange In the spontaneous order of free dom, the best society known to us, income or wealth arises from pay ment freely agreed and given by those whose wants are satisfied to those who satisfy them. Hence dif ferences in income or wealth have no relation to merit unconnected with the satisfaction of human wants. Saints and sinners may reap their just rewards in a future life, and they may perhaps get some spiritual rewards in this life, but their material rewards can only be determined by the value which others, free from compulsion, put upon their services. In some fields this is or used to be well understood.

By all accounts the late Babe Ruth was a man of odious personal character, but the fans made him rich because they prized not his per sonal merits but his ability with a baseball bat. Henry Ford was a piti able ignoramus outside engineering and industrial management, and not very pleasant a man; but the people, acting without compulsion, made him a multimillionaire not for his moral or intellectual qualities but for his ability to put them on wheels at an unprecedentedly low cost. Nowadays the Babe Ruth case continues to be understood; thus rich sportsmen and entertainers are generally exempt from assault by champions of social justice. But the Henry Ford case has changed. Now his wealth would be assailed as un just even if he were a saint or an intellectual titan as well as a mar vellous producer of wealth. Payment for Service We still understand that surgeons must pass examinations before they can be certified competent to operate upon us, and that it is just to pay surgeons for their competence in surgery, not for any other merit or any need which they may have. A surgeon of mediocre skill who is known to be a saint or to have numerous children to support would not receive payment from us on the 562 THE FREEMAN September scale of one of high skill, and in this we do not think that we act unjustly.

But too few of us understand that where men are free, they conduct similarly just examinations every moment of the day as they decide whom to reward for the service of their wants, and whom not to re ward. This principle is sometimes mis understood even by supporters of free enterprise. In the Samuel Smiles and Horatio Alger type of exposition, there is a tendency to stress 'the moral qualities of mate rially successful men, giving the impression that it is these qualities which we reward. Of course the man who makes two blades of grass grow where there was formerly one, or the man who makes a better mousetrap, may be led to do so by his high moral qualities, but he receives his just payment for the abundance of the grass or the quality of the mouse trap and for nothing else. Some times his achievement is justified on the ground that it has social value or a value to society. However there is no such thing as a value to society, except the value of its rules. Gtlods and services can have value only to persons, or to groups of persons act ing as a group. Society does not so act.

It is common at this point to argue that wealth differences may be jus tified by personal success in the satisfaction of wants, but that the inheritance of wealth cannot be jus tified since the legatee satisfies no wants. Many supporters of the rights of private property have need lessly agonized about this. In a free society the state has no part in the transactions which put the property in the hands of the· testator except that of guardian of the rules, and the state has no more locus standi to take it out of the hands of the legatee (except for its taxing power which has a quite different basis) than any other bystander. That it may tax the legatee does not mean that his inheritance belongs to it, any more than its power to tax in comes means that it owns the in comes. When the state claims the right to deprive the legatee of his inheritance, apart from the taxing power exercised for other purposes, it does so on the false pretense that it is itself the society or is in some manner clothed with the rights of society, which is the essential claim of the totalitarian state.

An Unattainable Goal The mirage of social justice beck 0ns men to the unattainable goal of substantive equality. Though the goal is unattainable, the pursuit of it is one of the most corrosive of all human influences. It not only pro duces envy and hatred. It also drives men into submission to tyranny, for only tyranny can plausibly offer to reach the unattainable goal; and 1980 HAYEK'S COMPLETED TRILOGY 563 with tyranny there also eemes pov erty. Thus are lost the blessings which men came upon when almost inadvertently they constructed the Great Society. Hayek expounds the nature and consequences of the pursuit of sub stantive equality with his custom ary insight, thoroughness, and felic ity. For many it will be almost equally important that he also explodes the concept of the alterna tive which is commonly called equality of opportunity. If by this is meant La carriere ouverte aux tal ents, it is unexceptionable, but that is not equality of opportunity. If equality of opportunity is truly meant, it is as unattainable as sub stantive equality and its pursuit is almost as destructive as that of the latter.! The only form of equality consistent with the rules of the free society is equality before the law.

Roots of Protectionism A most important aspect of the pursuit of substantive equality is that, since genuine equality of con dition is highly repugnant to almost everyone and extremely difficult to define or even conceive, right from the beginning the self-styled cham pions of substantive equality pursue something else. In its more obvi ously odious form it is the desire to pull down certain selected groups who are declared to be immorally rich but who often are neither rich nor immoral. In its less obviwsly odious form, which is indeed widely approved by men of goodwill, it is the protection of accustomed or es tablished positions. This is so obvi ously different from equality that it is only the remarkable perversity which is so often found among ide ologues and their political pupils that enables the one to be sought under the banner of the other. Few persons command so ready a sympathy as those who, without ap parent fault, lose their jobs because those who have bought their pro duce now decide to buy from some cheaper source, especially if that source is foreign. Since Hume, Smith, and Ricardo, economists have always understood the folly of allowing this sympathy to propel us into protectionism, and of course Hayek knows all about this. Here however he goes deeper than the exposition of mere economic folly.

He demonstrates with a full and acute analysis that the protection of established positions strikes at the heart of the spontaneous order, and all the more once that order has expanded into the Great Society. A False Appeal Thus we come to Hayek's conclu sion on social justice. It is a cri de coeur from a scholar who has spent a lifetime watching the corrosive ef fect of this slogan upon many minds which might have been expected to 564 THE FREEMAN September perceive its true character (page 97): ((What I hope to have made clear is that the phrase (social justice' is not ... an innocent expression of goodwill towards the less fortunate, but has become a dishonest insinuation that one ought to agree to a demand of some special interest which can give no real reason for it. Ifpolitical discussion is to become honest it is necessary that people should recog nize that the term is intellectually disreputable, the mark of demagogy or cheap journalism which responsi ble thinkers ought to be ashamed to use because, once its vacuity is rec ognized, its use is dishonest. I may, as a result of long endeavors to trace the destructive effect which the in vocation of (socialjustice' has had on our moral sensitivity, and of again and again finding even eminent thinkers thoughtlessly using the phrase, have become unduly allergic to it, but I have come to feel strongly that the greatest service I can still render to my fellow men would be that I could make the speakers and writers among them thoroughly ashamed ever again to employ the term (social justice.' "

If the cry of ttsocial justice" does cease to be heard in the land, no man in all the history of political and legal philosophy will have done more to produce that devoutly desir able consummation than Hayek. Let us now pass to the third vol ume of the trilogy, ttThe Political Order of a Free People." In the first two volumes Hayek laid a founda tion for a program for the renovation of the once-liberal, once-successful, but now sadly crumbling, Western political order. In the third volume the program is set out in much de tail and with a full envelope of ar gument. However, though this program is in an important sense the culmina tion of Hayek's thought on the prob lems of society, it did not arise in his mind as a late flowering of his analysis of law, order, and justice in society. A New Political Order There is no surprise in finding that all Hayek's ideas are the pro duct of a long, slow development in his mind, so· that they display the rich maturity to be expected from years of thought and experience, of examination and reexamination, of testing and re-testing. Thus those who have followed the development of Hayek's work will already be fa miliar with the essentials of his pro posals for a new political order. He first presented them in a brief dis course to the Mont Pelerin Society at Vichy in 1967. He offered them in more developed form in 1973 in his ttEconomic Freedom and Represen tative Government."2 In this volume he presents them in what is perhaps their finished form, though it will not be open to us to think of any of 1980 HAYEK'S COMPLETED TRILOGY 565 Hayek's ideas as having reached their ultimate form until he lays down his pen once and for all.

Why is the Western political order crumbling about our ears? And why do we need to devise fundamentally new political machinery to preserve such freedom as we have, restore the freedom we have lost, and give all our freedoms the protection of a sta ble order? Because, Hayek argues, we have failed to distinguish be tween nomos and thesis, between the rules of just conduct and the orders required for the tasks of gov ernment, between legislation in the true sense and administration. 3 We entrust the same body, Parliament, Congress, National Assembly, etc. with the task of deliberating upon and determining both nomos and thesis. From this, in Hayek's view, the degeneration of modern democ racy has developed. From Democracyto Dictatorship The degeneration of democracy into plebiscitary dictatorship and perhaps ultimately into totalitarian tyranny proceeds visibly before our eyes, but we are powerless to arrest it, Hayek tells us, as long as, while still prizing the principle of democ racy, we think that existing demo cratic forms are the only forms. For it is by these very forms that we are betrayed.

We are surely right to prize the principle of democracy. A system in which government is responsible and accountable to the governed of fers the best chance for liberty under law, for peaceful political change and peaceful rivalry for office or power that mankind has known. Yet if it be the case that existing demo cratic forms are a mechanism for the decay of democracy, the time will come, and perhaps soon even in the apparent citadels of democracy of the North Atlantic, when the people will abjure democracy. For as it de cays, mounting disorder will arise in which even democrats will come to believe that only the agonizing choice between authoritarian and totalitarian government remains open to them. Fortunate will be those who then get an authoritarian Franco, Salazar or Pinochet rather than their alternatives. Yet the authoritarian dictator fails to produce a durable system. His system tends to last no longer than he. himself. Where has there been a better dictatorship in modern times, if dictatorship people must have, than the ,.,.ditadura sem dita dor" (dictatorship without a dic tator) of Salazar? How many rulers have given the Spanish people as long a period of peace and prosperity as did Franco? Yet Salazar and Franco were not long in their graves before their peoples dismantled the systems which they had so labori ously constructed. The lesson is clear. If democracy can be saved, 566 THE FREEMAN September there can be no higher political duty than to save it.4 Special Interests Gain Power The process of democratic degen eration displays itself as the general interest becomes subordinated to various sectional group interests, so that the legislature ceases to be a forum for the determination of the general interest (for which the rules of just conduct are the basis), but becomes an arena in which special interests jostle and bargain with each other for the favors of the state.

The democratic process thus comes to betray not only the general inter est but majority rule itself. It is not the wishes, still less the interests, of the majority which prevail, but the desires of fluctuating coalitions of minorities. Each group in the coalition bar gains with other groups so that each may feed at the public trough, and the rapacity of each is thus con strained not by any attention to, or concept of, the commonweal but by the need to accommodate itself to the rapacity of the others. However, such a system is unstable. It is not merely that its true nature cannot be concealed from the people, how ever adept at camouflage by way of democratic slogans and mob flattery the coalition leaders may be. What must bring it down and in due course end even the pretense of majority rule is the fact that it must produce mounting discontent, which by the irony of the gods turns out to be even more destructive among the coalition in-groups than among the outer groups which are the victims of their plunder. For in the first place the betrayal of the general interest itself undermines economic stability and produces general un ease as well as reducing the scope for plunder; and in the second place the appetite for plunder grows with eating.

Hence the coalitions must con stantly regroup themselves, enmity among them growing apace, until the strongest among them, probably with a charismatic leader at their head, assume full power. When this happens the majority of the people sigh with relief as chaos yields to apparent order, and the forms of democracy follow the long evapo rated principles of democracy into oblivion. Power Corrupts We may readily accept this ac count of degeneration and yet ask why the failure to distinguish be tween nomos and thesis, and to separate their determination, is the spring and origin of this process. Because, Hayek argues, the powers of government offer seductive gains to those who can capture them. Hence if the same persons deter mine both the deployment of gov ernmental powers and the rules of 1980 HAYEK'S COMPLETED TRILOGY 567 just conduct, the seductions of the former will in time submerge the constraints of the latter. The most striking example of this process is shown by the very country, Britain, which first in modern times estab lished responsible government and was long its great exemplar.

The Parliament which once forced the Crown to submit to the rule of law, has itself become an engine for lawless government, having as sumed the uncontrolled sovereignty which it denied to the Crown, and having abandoned the self-imposed conventional restraints which made it conform to the rule of law for some two centuries after the defeat of the Crown in 1688. The irony for par liamentary democracy is that the sovereignty of Parliament is now only formal, the power to use it having reverted to the Crown's suc cessor, the Cabinet and its party machine, which, behaving like a true plebiscitary dictator, is re strained only by the need to manipu late success in the next plebiscite, which in turn depends .mainly on skill in manipulating the competi tion between various pressure groups. The analysis indicates the rem edy. The determination of nomos and thesis must be separated and entrusted to two different bodies, both of which must be democrat ically elected, so that neither can claim to be invested with greater democratic sanctity than the other (thus avoiding the process which enabled the British House of Com mons to emasculate the House of Lords and effectively destroy its re vising powers). However, though the two bodies will have equal demo cratic authority, their constituen cies, modes and periods of election, and qualifications for election, should be different. 5 The Governmental Structure Hayek examines the possible modes, periods, and especially qual ifications, for election to the true lawmaking body (i.e. that dealing with nomos, which we may call the legislative assembly) in penetrating and illuminating detail. Its mem bers (whom Hayek with his alert eye for classical Athenian parallels, calls the nomothetae) would lay down the general rules of just con duct which would govern the delib erations of the thesis-making body (which we may call the govern mental assembly) and the exercise of the powers of government. In such a constitution there would be a need for a supreme court not merely for the conventional task of construing the decisions of the two assemblies, but also for adjudication in case of disputes between them.

It is impossible within the short compass of this article to do justice to the depth and amplitude of Hayek's analysis. For example his 568 THE FREEMAN September exposition of the proper functions of government, and in particular of the correct approach of authority to problems of competition and monopoly, is a marvel of sure footedness as he picks his way to a sound conclusion with immense skill through a minefield thickly strewn with lethal errors. The above statement of his argument is there fore a barely adequate attempt at a very compressed account of its most essential elements. His diagnosis of the process of democratic degeneration surely merits ready acceptance, but with this qualification which has a bear ing upon the effectiveness of his remedy. The entrustment of nomos and thesis to the same deliberative body would not have the baleful ef fect which he rightly describes with out the grip on the minds of citizens and legislators of the intellectual errors which he exposes in the first two volumes of his trilogy. Hence his remedy is unlikely to be successful unless at the same time the influ ence of these errors is removed. But if this influence disappears, it is arguable that his remedy becomes unnecessary.

The Case of the United States Consider the case of the United States. The same process of demo cratic degeneration is visible there as elsewhere, though it may not have gone so far as in some other countries. Yet, though it does not appear to be the case at first sight, it is arguable that the United States already has Hayek's system in its essentials, and has had ever since the Supreme Court invested itself with the power of judicial review. The essence of Hayek's system is twofold. First, a body concerned with the rules of just conduct which is separate from a second body which deliberates upon the adminis tration of government, and which sets the framework of law for the decision ofthat second body. Second ly, at least equal popular legitimacy for the first body as for the second, so that when the former's rules re strain the latter's itch for action, the people will accept them and approve the restraint.

The two bodies in the American system are the Supreme Court and Congress, which look different from Hayek's system but, it may be ar gued, are not. In theory the function of the Supreme Court is to apply the provisions of the Constitution. In practice it has tended to apply its concept of what is right and just (i.e. has sought to distil out of the Con stitution Hayek's rules of just con duct), especially during the past forty years or thereabouts. The shift from theory to practice presents little difficulty if one pro ceeds from the assumption that the Constitution is itself essentially a comprehensive statement of what is 1980 HAYEK'S COMPLETED TRILOGY 569 F. A. HAYEK, The Constitution of Liberty The Fundamental Distinction The fundamental distinction between a constitution and ordi nary laws is similar to that between laws in general and their application by the courts to a particular case: as in deciding concrete cases the judge is bound by general rules, so the legislature in making particular laws is bound by the more general principles of the constitution. The justification for these distinctions is also similar in both cases: as a judicial decision is regarded as just only if it is in conformity with a general law, so particular laws are regarded as just only if they conform to more general principles. And as we want to prevent the jUdge from infringing the law for some particular reason, 50 we also want to prevent the legislature from infringing certain general principles for the sake of temporary and immedi ate aims.

right and just. It then calls for no great effort from the judges to find that the Constitution really means whatever they currently believe to be right and just. If they are good lawyers, accustomed to intricate ar gument, their skill in construction enables them to reach this conclu sion. If they are not, they ride off on the principle that the Constitution is a flexible document which is in tended to breathe the spirit of the age, and so they reach the same conclusion as their more competent brethren. It is true that there have been and are judges described as strict constructionists but a scrutiny of their judgments will show that they too follow what they believe to be just, though their concept of justice is of an older lineage than that of their less traditionalist brethren. This process was especially obvi ous in the decisions of the Warren Court. It is well known that Chief Justice Warren, knowing little law himself and having little skill in legal analysis, would react irritably to counsel who submitted a web of legal argument, saying uNever mind these legal points. The question is, is it right, is it just?" Of course a judge of such a caliber is contemptible, and it is true that when a competent judge deduces what he considers to be right and just from the Constitu tion, he does it in such a manner that the thread of legal construction handed on by his predecessors is as far as possible unbroken. Neverthe570 THE FREEMAN September less Warren differed from his pre decessors, colleagues and successors only in his naivete and ignorance.

They too have generally sought to find and apply what they have be lieved to be the rules ofjust conduct, free from the trammels which bind the lower courts. The Role of the Courts In countries where there is no power of judicial review (e.g. the United Kingdom), it is common for the highest court in the land to say uWe find that the law in the case before us is unjust, but we are bound to apply the law as we find it. It is for the legislature to rectify the in justice by amending the law." In the United States the parallel would be ((We find that the provisions of the Constitution in the case before us are unjust, but we are bound to apply them as we find them. It is for Congress and three-quarters of the States to rectify the injustice by amending the Constitution." How often has the Supreme Court said this? It follows that the Supreme Court at least in some measure attempts to perform the function of Hayek's legislative assembly; and that the fact that Congress attempts to deal with both nomos and thesis is not a fatal impediment since its acts are subject to judicial review. As for popular respect and allegiance, it is stronger for the Supreme Court than for Congress even though it is· not founded on democratic election.

Thus when Franklin Roosevelt was at the height of his democratic popu larity, having carried 46 out of 48 states in the 1936 election, he was unable to carry the people with him in his assault on the Supreme Court. Democratic Degeneration by Way of the Supreme Court The matter ~an be tested further. Suppose that Hayek's system had existed in the United States in the 1930's. Would the Legislative As sembly have resisted the popular clamor for the acts and policies of the President and Congress which have done so much damage to the American economy and polity? It is hardly likely. After all from 1937 the Supreme Court itself succumbed to the fashionable myths and errors, although it had a greater power to stand aloof from popular emotion than a Legislative Assembly would have had. Indeed those myths and errors have become so ingrained in the thinking of most judges, that the Supreme Court has now become in some ways an even more powerful engine for the degeneration of lib eral democracy than the Congress.

Could a Legislative Assembly have resisted the Zeitgeist better? Hence I suggest that Hayek's remedy will not work unless his as sault on the intellectual errors of our time first succeeds. But is it true 1980 HAYEK'S COMPLETED TRILOGY 571 that if he wins the intellectual bat tle, his remedy becomes unneces sary? The answer, I believe, is No. First, there are important countries (e.g. notably Britain and those which have inherited her system) which will save their liberties only by fundamentally new constitu tional arrangements; and Hayek's remedy is at least as good as the only other probable workable alter native, the original prescription of the American Republic (but includ ing judicial review). Secondly, his remedy would consolidate the intel lectual victory. Indeed, as intellec tual battles are never complete and tend to stretch out over long periods, his new constitutional ar rangements would be needed to forestall the effects of the local and occasional reverses which even vic torious armies suffer. , -FOOTNOTESlSee my article, 'The Wiles of Satan," Mod em Age, Spring, 1978, p. 168.

2The Wincott Lecture, 1973, published by the Institute of Economic Affairs, London. 2nd impression, 1976. :tIn the interest of brevity I am doing some slight violence to Hayek's distinction between nomos and thesis. The underlying distinction is between found law and made law. Hence some element of thesis enters into the deter mination of rules of just conduct. But for the purpose of this article's discussion the distinc tion stated here will serve. 4As the degeneration ofdemocracy may lead to disgust with its very name, Hayek suggests that we might have recourse to the other Greek word for rule and call his regenerated system ttdemarchy." 50( course this should not be confused with the case of the American Senate and House of Representatives because, though they do in deed differ in their constituencies, periods and qualifications for election, and to some degree in their powers, they both deal with nomosand thesis.