Radicalising Hayekian constitutionalism

The work of Friedrich A Hayek presents a compelling theory of the normative basis for constitutionalism and other related notions, such as the rule of law. Suri Ratnapala has undertaken much valuable work on Hayekian constitutionalism and its application to specific questions of constitutional design.1 I am privileged to have been his collaborator in applying Hayekian ideas to the Australian constitutional system.2 It is difficult, however, to avoid a sense of incongruity when seeking to apply Hayekian notions within the context of the modern administrative state. Hayek is widely regarded as a conservative figure, although he famously rejected the label.3 A comparison between Hayek’s theory and modern modes of governance makes Hayek seem more radical than conservative, since deep reforms would be needed to instantiate anything like his preferred model. How radical, then, is Hayekian constitutionalism? That is the question I wish to explore in this article.