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Law and Spontaneous Order: Hayek's Contribution to Legal Theory Author(s): A. I. Ogus Reviewed work(s): Source: Journal of Law and Society, Vol. 16, No. 4 (Winter, 1989), pp. 393-409 Published by: Wiley-Blackwell on behalf of Cardiff University Stable URL: . Accessed: 24/10/2012 09:48
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Legislation Liberty4 will attemptto place and but that in the context of his general theory of society. which is developed systematicallyfirst in relation to economic decision makingand systemsand thento the politicalorderas a whole.constitutional structures. Of preserving only libertysubject to universalrules of just conduct. the rival meritsof commonlaw and legislation. in no sense. Hayek'stheory * Professor of Law.Hayekaddresses issuescentralto legaltheory: particularly and the natureof law and the state.justice. economyandregulatory Hayek'smain thesisis thatit is onlythefirstof thesewhich.JOURNALOF LAW AND SOCIETY VOLUME16. a separate of unifiedrestatement rather.(Seepreviously Collins. WINTER 1989 0263-323X$3.having at its base a theory of knowledgeand scientificinquiry.I show how he uses an epistemological theory to developtwo models of social organization: spontaneousorder. The University.'Roberto Ungerand the Critical (1987)13J. identifies whichis associated witha planned law. I observedthat the work of Friedrichvon Hayek had been the unjustifiably neglectedby legalwritersin this country. as it was developed his career.In this paperI to shallfocus on Hayek'scontribution legaltheoryas expounded principally in his lastmajorworkLaw. I argue that the normative dimension of this assertion is flawedbutthat.3 is all themoresurprising because. can guaranteethe progressof human civilization.) LegalStudiesMovement' 393 .as an explanatory of modelof thedevelopment fundamentally meritsseriousattention. of LawandSociety387. Hayek'sexplorationof law has been. This paperis the secondin a seriesdealingwith the work of theoristswho have substantially influenced of H.Aftera shortaccountof Hayek'sapproach throughout intellectual to socialsciencemethodology.00 LawAndSpontaneous Order: to Hayek'sContribution Legal Theory A.NUMBER 4.Manchester M13 9PL. contemporary understanding lawandsociety. law. is but one part of an overarching enterprise. in his laterworks. liberalism. England. OGUS* Ten years ago.andrationalconstructivism.2the impact This situationhasnot alteredsignificantly.which he withthemarketandwithcommonlaw.1 Notwithstanding and influenceof New Right theoristsin the period since then.

and Societyas we knowit the socialscientistto derivean understanding societyand method: answeris by means of a 'compositive' social institutions? Hayek's can elements be selectedout of the totalityof connected of structurally groups the observedphenomena.No doubtawareof the riskof undermining importance his he Roadto Freedom had spelt own essayin prophesy(in the highlyinfluential trendsin political for out whathe sawas the implications the futureof current not and a in his laterwritingreached different.12 Hayek'ssweeping in at leastfalsifiable the Popperian generalizations aboutthehumanconditionstandor fallwiththismethodological assumption.then.intellectualprocess. as it were.5Social reality.nevertheless theoryderivedfromobserving undercertainconditionsmay enableus to expectthosepatterns of behaviour is the if to recur theconditions prevail andin principle hypothesis testable.builtup fromtheconcepts ideasheldby thepeople.a matterof to.theresultof attitudes. and individual subjective preferences choice.While specificpredictionsabout complex entirelysatisfactory.determinable reference concluded by labourand capitalinput. 'Value'was. human actionandinteraction beliefs. TWOMODELSOF SOCIALORGANIZATION The anti-rationalist thrust of Hayek's approach to social science methodology applies to action as well as thought and is at the heart of his social theory. Hayekdevelopedthe notion in his own economicwork7but.revealing regularities.I. whichwas. for example.The subjectivist theorywas centralto the Austrianschool of in whichHayekwas trainedand fromwhichhe derivedmuchof economics.objectiveanalysiswas impossibleand therefore men between external Not onlyman's[sic]actiontowards objectsbutalsoall therelations can andall socialinstitutions be understood onlyin termsof whatmenthinkaboutthem.9 of How. appliedit to the whole of of of socialsciences. more significantly. to makesit difficult distinguish some wouldarguethat its inherentvagueness and betweenscientific prediction purespeculation. humanmindis as as much a part of the naturaland social environment that which is being studied. 'scientistic': and motives.11 conclusion. time) productat a particular phenomena(such as the price of a particular broadpatterns a cannotbe made.8 Sincethesubject-matter thelatterwascomposedentirely in turn. pattern.10 strict Austrianwould argue that the complexityof variables inherent in human behaviour and motivation precludes the of the possibility. instead.13 II.the Austrians had that resources no objective'value'. can and socialphenomena be recognized us and havemeaningto us only as they are by in reflected the mindsof men. then.6 contrastto the classicaleconomists. perhaps Hayek institutions). cannot be 'explained'by an objective. 394 .or sense.or generalorderof A humanbehaviour. THE METHODSOF SOCIALSCIENCE Hayek'smethodof analysingsocietyhas its originin the Kantianconception the cannotobservephenomena thatindividuals 'externally'. In his earlyinspiration.

Interactionand co-operationwith othersare. it resultsfromthesynopticdelusion: fictionthatall therelevant fromthis factsareknownto someonemind. by a processof evolutionary selection.Rulesarebestleft.he from 1931to heldtheTookeChairin EconomicScienceat LondonUniversity 1950. the 395 . The Market as Spontaneous Order was Theearlier partof Hayek'scareer devotedto pureeconomictheory 9 .The spontaneous orderwhich emergesis selfor broughtabout and has no generating endogenous:14 it is not deliberately explicit purpose. The basis of the competitive market order is.ants.spontaneous and 'the order. the rulesmust be habituallyobeyed.andthatit is possibleto construct of the particulars desirable a socialorder'. Others they will follow tradition. under a spontaneousorder their specific content is not to be betweenindividualrulesand the overall designed. deeplyfallacious: failsto recognize the humanmind is a part of.although wouldbe in the of interests eachto disregard them.facts whichmake up the humanconditionis Knowledgeof the innumerable and fragmentary. with is Thespontaneous ordermodelof socialorganization to be contrasted whichassumesthat humaninstitutions capableof are rational constructivism humanpurposes.and his notion of spontaneous orderwas developedfirstin relationto the market.15 For societyto exist.20 The latteris an unplannedprocesswherebyindividuals make and limitednormally localized to use of decentralized fragmented knowledge.16 depends ariseonly if theserulesaregenerally of mighthaveto enforce Although. and termites.essential. onlyif they and serving For Hayek. of course. for examplein the insectsocietiesof bees.whichhasinfusedsocialand aredeliberately designed. no individualis able to predictwhat will or will not succeed.but this does not implya plannedor directive form of social organization.18 knowledge 1. then. to advance their own interests in competition with others.therefore.the overallorderon whichthe successof theiractions will followed. representatives the community the rules. a system for communicating information: individuals respond to signals.Thisideaof unplanned by (oftenunformulated) of development humanlanguagebut also by animallife.but to overcome the Hobbesiandilemmawhich arises when self-interestconflicts with the commongoal compulsionmay be necessary: of Some such rulesall individuals a societywill obey becauseof the similarmannerin which their environmentrepresentsitself to their minds.Becausethe relationship order is so complex.ratherit results from the instinctiveadoption of certain orderis exemplified the rules.since. Individuals necessarily widelydispersed makingdecisions about courses of action can at best rely on limited informationnormally pertainingto localized environments. therewill But because theywillbe partof theircommoncultural spontaneously it be stillotherswhichtheymusthaveto be madeto adaptto changesin the environment.thisview.17 that is it politicalthoughtsinceDescartes. in thepasthavesuccessfully doneso. information about prices and costs. and thereforecannot transcend.

have the knowledgerequired co-ordinatethe activitiesof in any event. is and.adaptative processdealingwithunforeseen consequences: to Thepartsof a legalsystemarenot so muchadjusted eachotheraccording a compreto gradually of adaptedto eachotherby the successive application to that is. she or he will enjoyan initialmonopolypower to but.or set of can to individuals.'21 passed Plannedeconomic systems fail simply because no individual.becausethereis an inherenttendencyfor agents.Theyneedknownothingof whydemand changes.stilllessof the as a whole. offer a new product.The of phenomena the marketprocessare alwaysin a stateof flux. in 'command' thatit does not presuppose sovereign a who issuesit.Thisviewof themarket as a dynamicprocess led Hayek to be highly criticalof the neo-classical obsessionwith supplyand demandequilibrium allocativeefficiency:23 and a to model in which.An individual entrepreneurmay.only the most essentialinformation on and passedon only to those concerned. guessing from information aboutotherproductsthattherewill be sufficient demandfor it. as such. resourcesare assumedto gravitate towards such an equilibriumdistorts the reality of economic behaviour.thatwillnot last. or of perfectcompetition.prices which reflect peoples' needs for products (demand). Legislationand the Liberty.economicprogress dependent andconsumers. whichare often not even generalprinciples particular problems principles. enablesthem to adaptbest to rewarding thosesignals.and in of abstracted 'law' is distinguishedfrom sharp opposition to Austinianjurisprudence. Since Hayek's does not lenditselfto econometric modellingof the kindwhichnow approach it that dominatesthe economicsdiscipline. responding stable preferences. in the light of newly-acquired knowledge.27Law-making as is hereportrayed a continuous.Hayek fromtheirtraditional eitherof diverges theoryby not relyingon assumptions the perfectknowledgeof economic actors. knownbut merelyimplicitin the particular measures order. is perhapsnot surprising his work is neglected contemporary economists. In participants abbreviated is form.if is her or his guesswork good. is a partof the unplanned The subject is explored in considerabledepth in Law.22 Whiletheseideasmaybe largelysharedby neo-classical economists. The 'marvel'of prices is: 'how little the individual economy need to know in order to be able to take the right action. for example.unlesstherearebarriers move away from this state. Further. producers on individualsbeing rewardedfor successfulexperimentation with what is whollyor partiallyunknown. largerpartof the firstvolumebeingdevotedto it. or perhapsluck.24 by a kindof symbol. with profits those whose skill. CommonLaw as Spontaneous Order of The germsof Hayek'sidentification the common law with spontaneous order may be found in The Road to Serfdom"2 and The Constitution of wherehe views 'genuine'law as possessinga generalityand thus Liberty26 from particular circumstances time and place.28 explicitly 396 .

thereby failingto appreciate that part of public law.35 course.32 Legislationis frequently.34 he thoughconfusingly usesthe term'publiclaw'. then. as we shall see. that there is an equalitybefore the law.contains'universal therulesevolvingunderspontaneous measures purposeare order. thus infringing equality before the law.they are purpose-independent. whichhaveevolvedin the spontaneous the order to maximizethe inappropriate) protectall expectations. concern to identify law under the spontaneousorder with the Hayek's common law does not. applicationin particular their instancesis not designed to achieve particularsocial or economic ends.Most significantly all.should.Thirdly. in possibilityof expectations generalbeing fulfilledand. in a passagewhich is frequently of 397 .Hayekrecognizes legislation that judicialdecisions. judge will interpretit in such a way as to the render it consistent with other general principles and thus generate coherence. for Hayek this implies laying down for each individuala range of permitted actions(liberty) designating has by rangesof objectsoverwhichtheindividual controlandrightsof disposal(property).31 environmentsome Granted. and typically to set attempting lay down a comprehensive of solutionsfor all foreseeable in omniscience the sovereignruler. than a conscious initiator'. wouldhave'reasonably formedbecausetheycorresponded thepractices to on which the everydayconduct of the membersof the group was based'. of principles general.or a Of codificationof the principlesof private law which have evolved through applying the generalto the particular.Secondly.The judge's task is to apply the general .36 may be to law necessary correctjudge-made wherethe latteris too slow to adapt to this cannot be wholly new circumstances.30 This part. in that or particular groupswithinsocietyarenot the subjectof specificprescription the principlesdo not purportto providea specificdispensation.regulatory often by means of targetingrules (or exemptionsfrom rules) on specific. however.33 law.Stabilityensuesbecause.In contrastto action.lead him to the position that legislation shouldbe dispensed withaltogether. impliedlyassuming contingencies. concretesolutionto all the many(andunknowable) whichmay contingencies arise. in the first place.statutelawmay.Theindividual withinthisprocessis morean 'unwitting tool judgefunctioning .29 The principlesthemselvesare 'universalrules of just conduct'. performsthis function when it lays down rules It designed to achieve particularends or supplementspositive orders that shouldbe done. used as an instrumentof rationalconstructivism. for example that governingjudicial review of administrative rulesof just conduct'. however. can occur becausedevelopments reversedif judges are not to disappointreasonableexpectationscreatedby earlierdecisions. an agencyfor this something to Hayek is here referring what we would call regulatory purpose. not to questionthem. specific will be impossible(and to The aim.theyreflect practices conformto theexpectations whichthe parties and. the fact that in an ever-changing individualswill be exploiting new knowledge.though not always.or conferspowerson.

1. only including of themajority of to the people. nevertheless enableshim to make broad generalizations.this involvesthe risk of failureas well as of success.Its constituent spontaneous partsnow call for examination.. Hayek'sapproachto social science. BLUEPRINTFOR THE 'GREATSOCIETY' As we have seen. likelyto theiraims. of course.landlordandtenantlaw.42 It means freedomfrom coercion by others but does not extend to freedom in the political sense of people participatingin the choice of government. but this does not imply that society is to amountof resources. a restricted one.restrained only by rulesof just conductof universalapplication.For socialprogress.It insists that individualshave some privatesphereprotected by against interference others.even though. he concedes that judicial limitedin the exercise coercivepowerby general principles whichthe has itself.38 community committed Hayek's blueprintfor the Great Society39is drawn. the factors on which the pursuit of individualpurposes rests. The main thesis of Law. 'liberty is and essentialin orderto leave room for the unforeseeable unpredictable'.41 for to Thegoal shduldbe the maximization opportunities individuals learn of of facts hithertounknown. it should be noted.thereis an overwhelming this kindand it cannotbe achievedwithoutliberty. that has guarantee eachindividual accessto a minimum who argue that some In this respectHayek differsfrom those libertarians materialsupportfor disadvantaged personsmay be necessaryif they are to 398 ..andcreditor/debtor fromthe class of one of as fieldswherejudgesweredrawnalmostexclusively the interested groups.40Whether or not civilizationis 'better' as a result of increased demandfor materialprogressof wealth.each for individual shouldbe ableto act on heror his ownparticular knowledge her as to manyof or his ownparticular Sincethereis inevitable ignorance purpose. derivedfrom observationsof 'patterns'of events. from the ordermodel.overlooked. that a conditionof libertyin whichall are allowedto use theirknowledge their for is purposes. and thereforethe need for of legislation. Liberty is Liberty not viewedby Hayekas an endin itself.while preventing him fromformulating or abouthumanbehaviour inductive by specific predictions deductivemeans.and that sucha systemis producefor themthe best conditionsfor achieving of and that likelyto be achieved maintained if all authority. of course. The concept of libertyemployedhere is.butas the meansto an endhuman progress. mayresultfromthefactthat'thedevelopment thelawhaslainin of thehandsof members a particular classwhosetraditional viewsmadethem of regardas just what could not meet the more generalrequirement justice'. law andhe instances labourlaw.37 III. and Legislation Libertyinvolvessucha generalization: .

as determined by the market.intervention of this kind 'certainly for assistsintelligent choiceand sometimes may be indispensable it'. The Rule of Law A continual theme in Hayek's work from Road to Serfdom through to Law. the certification of certain professions. But it may come as a surpriseto Hayek'scriticsto learn that he is. ratherit is in the interestsof those 'who requireprotection on which againstacts of desperation the partof the needy'44 an explanation is more fully exploredin Marxist analsysis. of the for It activityin question.It exercisepoliticalrights. In short. beneficial consequences of an activity are not reflected in the prices which agents charge.ought to be observed.Defence of a society againstexternalenemiesis another uncontroversial justification for governmental control.52 Nevertheless. it does not followthatgovernment shouldnecessarily itselfprovidethem. though the public financing of some services may be justified. it should be recognized that the adoption of collective measures involvesresortingto an inferiormethod of provisionand the spontaneous mechanism of the market should be relied on as much as possible.48to justifythem. Clearly there must be some exceptions to freedom from coercion. is necessary.Inheritance defendedsimplybecauseit arisesfromthe natural is instincts of parents and if it is prevented those instincts will manifest in It themselves less attractive ways. First.for whichpurposefreedomand enforceability of are as for contracts vital. More generally. Secondly.for examplenepotismand corruption.hencethe argumentfor publicly funded education vouchers valid for private institutions. he is quick to point out important limitations. less 'citizenship'. wheresome of the adverseor marketfailure. and some safety and health regulations .43 is truethat he acceptsas inevitable government of is still actionto dealwithextremes povertybutthejustification not 'liberty'.notably externalities.47 as follows that Hayekacceptshistoricalpatternsof entitlements a givenand makesno attempt.he recognizes appropriateness of building the mannerof Nozick. while regulatory legislation inevitably involves some departure from the ideal of of universal rulesof conduct. and has Legislation Liberty beenthatlibertyis not a naturalstatebut is rather 399 .the alreadyseenthat compulsionto obey the rulesof the spontaneous common mitigatethe evil certaingeneralrequirements justice.Assetsareacquired rewards merit. such asthe avoidance of arbitrarydiscrimination. thus leading to an overproduction.53 2. We have order.49 Most cases arise as a result of that is.45 The essence of the 'private is ('freedom sphere'.50 is on this groundthat he rationalizes. an advocateof the 'minimalstate' and that thereis a wide rangeof regulatory measures that he is prepared to tolerate. by no means. or underproduction. example. not thepossessionof property maybe enjoyed no a personwith practically propertyof his own'46)but the rightto use by assetswhichare possessed. since information is a commodity not easily supplied by the market the but facilitatesthe workingof that process. pure food law. centralized provision of roads51 and the public financing of education.

therefore. If.63 3. administrative to.59 distinctions meritbetween needsof different In making these decisions.theinstitutions practices theadministrative/welfare and of state infringethe meta-legalprinciplesin severalimportantrespects. which demandedsubservienceof the state to the meta-legal principlesof the rule of law was displacedby a purelyformalinterpretation which requiredonly that all state action be authorizedby the legislature. knownandcertain.particularlythe 'Wednesbury'61 of and principle reasonableness fit his model.. the authorityand its subordinateagents must considerable inevitably possessandexercise discretionary powers.64 power 400 .60 Thesearguments familiar andmuchdebatedby. and in makingthese decisionsit must set up of the people. the courts'concernis. Robson.56 violent attackson the certaintyof law by JeromeFrank. original conceptof Rechtsstaat. in Hayek is ruthlessin his criticismof developments legal thoughtwhichhe considers contributedto this decline: the overwhelmingsuccess of legal positivism. As Hayek has argued in his later work. authority mustprovidefor the actualneedsof peopleas theyariseand thenchoosedeliberately between them. limitedto the questionwhether particular the actionwas formallyauthorized by legislation.. A. the rule of law has suffereda markeddeclinein the twentieth The a century. lawyers do not call for detailedconsideration here. productof theliberal movement. extensive on ordinary judicialactivism.55Viewedas such.58 ForHayek.createdand preservedby the 'rule of law'.. in general.It mustconstantly whichcannot decidequestions be answeredby formalprinciplesonly. Kelsen by the signalledthe definiteeclipse of all traditionsof limited goverment'. The latter mirrorsclosely the and conceptfamiliarfromDicey'swork54 assertsas meta-legal requirements thatlawsshouldbe universal. expounded ProfessorH. ConstitutionalConstraints The need to impose constraintson governmentaction arises nor merely because such action inevitably infringes the meta-legal principles of the rule of law.Theruleof law would insist that such discretion be constrained by a system of administrative whichenablesthejudiciaryto reviewthe substance the law of to actionby reference general but principles. as we have seen. it is a consequence also of the weaknesses of traditional democratic structures.57 and the literatureoutlining an antirule-of-law doctrinepromulgatedby a group of 'socialistlawyersand and politicalscientists' includingIvorJennings W.Collectivist economic measurescannot be accommodatedto generalprincipleswhich preventarbitrariness: The planning .sufficeit to observethat Hayek would probablyfind unpersuasive view that the principlesof judicial the review developed in our legal system .'it was the young men broughtup on such ideas who becausethe ready instruments the of paternalistpolicies of the New Deal'..62 wouldbe evenmorehostile to the opinion which casts doubt on the alleged superiorwisdom of the courtsand.andshouldapplyequallyto all.'the "puretheoryof law" .

secondbody wouldbe boundby the rulesof just conductlaid down by the is obviouslydesirable themembers To that of the Legislative fromthe demands pressure of Assemblyshouldbe insulated groups.Thus: an and wasteful of .Groupswith commoninterests to and to will.Hayekis not so cautious.70Consistentlywith the theory of spontaneous order that the rules of just conduct should be purposeindependent.In the thirdvolumeof Law. rather. Giventhe unlimited of legislative bodiesto enact power measures benefitson particular regulatory conferring groups.designed primarilyto divert as much as possible of the stream of favourto theirmembers.69 key to his model is the establishment two representative bodieswith different functions. its role would be sharplycontrastedwith that of the GovernmentAssembly which would be concerned with organizing the and makingdecisionsabout the use of resources apparatusof government entrusted the government.consisting tradeassociations.68Because most of this analysis is flow institutional predictive whatconsequences fromdifferent arrangements . to the Crucially.that is the universalrules of just conduct.66 of 'monstrous' by in thisformis a sham.norindeedforcedto earna livingin themarket.Legislation he which. governmenttook the wrong direction: the equal claims of democratic and government democratic legislationled to a situationin whichthe powers of the two brancheswere effectivelycombined and to a revival of the establishment an absolutepowernot restricted any rules.wouldsolvethe andLiberty outlinesan idealconstitution The of problems. organizations.particularlythe Westminister is the root causeof the problem.the economistsinvolvedhave tendedto fight shy of adumbrating reform proposals.must be conferred representatives the community orderto avoid the on of in Hobbesian dilemma created conflictsof self-interest.Theclassicaltheoryof representative model.Hayektherefore suggeststhattheyshouldbe electedfor long periods. they shouldbe determined opinion(whatis rightor wrong) by andnot by interests. and Hayek identifieswith spontaneousorder.The Legislative Assemblywould be charged with maintaining developing'proper'law which.. As such. a highly sophisticatedand influentialversion of them was being developedby the public choice school of economics.a government the majorityof votes in those bodies will need to offer such commanding measures those on whose supportit organizethemselves demandbenefits. theywouldbe 401 .. achievethis. for examplefifteenyears.for placatingand remunerating interests whichin morenaivetimesweredescribed the"sinister as interests" '. then.Afterthis period.they wouldnot be eligiblefor that it could not issueany ordersto privatecitizenswhichdid not follow 'directly necessarily' and from the rules emanating from the is 'increasingly the Democracy becoming nameforthe those special very process of vote-buying.throughoutthis work. doesnot followthat it by the existenceof democratic institutions representing majorityopinionis able to solvethatdilemma.67 At the same time as Hayek was formulating these ideas.65 governmental The concept of parliamentary sovereignty. in thecourseof thiscentury enormous exceedingly apparatus parahas of unionsandprofessional trades government grownup.

in termsof of a state of affairs. emphatically a balancing particular nor of classesof persons.73 as stateof affairs abouta particular Utilitarian evaluations are therefore dismissed as being constructivist fallacies.71 Theycommandgeneralassent to sincethey correspond generalusage. the Legislative by Assembly. providesuch would In smackof rationalconstructivism.and certainlydo not receive.becausethey become the basis of planningby individuals.(I through shallreturnto this crucialpropositionin the next sectionof the paper.. judgeswouldbe electedby a committee its independence of formermembers the Legislative Assembly. such as evolve through common law decisions or. in his ideal Whatmakes constitution. doesit aimat bringing case.) just Onlyhumanconduct. the secondvolumeof Law.themembers contemporary of all personsin thecommunity the sameage.whatis theircontent? them 'right' or 'wrong'?What is 'justice'?Since justice is a part of the constantlyevolvingspontaneousorder.75 law'..we cannot expect.assured of continuous public employment as lay judges. rather ascertainable determineparticularcourses of action.developis the result of a 'natural'process. The rules of just conductare abstractguides to behaviourin a world in are whichmost of the particulars unknown. since knowledgeof the importanceof is ends for particular individuals lacking..the test of justiceis also particular negative: of interests stakein a concrete at not . consequently. with the task of resolvingdisputes a constitutional courtwouldbe entrusted of about the propercompetence each of the two assemblies and. 4.74 with 'natural Hayekwouldpreferhis conceptof justicenot to be identified which as typically used denotes some deontological theory. to preserve of fromgovernment. To reflect wouldbe electedby of standards rightandwrong. in the anti-positivistsense of that being of independent deliberatechoice by sovereignwills:it is 'naturalselection' the evolutionwhichdetermines successand thejusticeof the rules. Hayek's theory.and thatwhichaffectsothers. the Nevertheless.concretizedanswersto these questions.or evenof theinterests determinable whichis regarded just..can be considered or unjust.'7 This leads to the 402 .they are typically negative in character.Internalconsistencyand application over a reasonably long periodare importantqualities. Justice If. mannerin whichthe rules. The action of governmentsand other organizationscan be so of but qualified not the order(or situation) societyas a wholesince. Legislation titledTheMirageof SocialJustice. for Hayek.Hayektherefore andLiberty.The functionof the rulesis to protect thanto is domainswithinwhichthe individual freeto act. say forty-five yearsold. justiceis .the particulars a spontaneousorder. law properly so called comprises 'universalrules of just conduct'." Likewise. appropriately on and concentrates howjust rulesshouldbe 'discovered' whatis not'justice'.andnotionsofjustice. cannot be the intended aim of individual actions.

to relieffrompain. the term has no meaningexcept undersystemswhererulers to the arrogate themselves powerto determine impossible whatis good.and of important. and may be alteredby. also in his aimsandvaluesthatmanis thecreature but of civilization. enormously rejection conceptsof social." For Hayek. TheProblem Values Evolution and of In my accountof Hayek'sworkI haveattempted showhow he developshis to evaluative framework socialinstitutions.for example. evolutionary processes: It is not only in his knowledge. housing. What is good for mankindcannot be known and rationalplansfor the futurecannotbe made.But a crucialquestion is raisedas to the normativecontentof this theory. the inevitable priceis that individualsand groups risk unmeritedfailure.'value to society' is immeasurable except by marketmethods. hencealso his highlycritical for and from an judgementsof some forms of social and political arrangements. also highlycontroversial.institutions be shouldtherefore in into the unknown appraised termsof theircapacityto fosterexplorations and to disseminatethe findings. Theyalso resultin of infringement the universalrules of just conduct since people would be treateddifferently to materialsituation: according theirapparent Thedistributive with aimsis thusirreconcilable the ruleof law.and in whichindividuals orderedwhat to do.To replacea systemof rewardsdetermined the marketwould halt progress. justice: be as justice'willultimately recognized a will-o'-the '[S]ocial wispwhichhas luredmento abandon many of the values which in the past have inspiredthe developmentof civilization. In a social orderunderwhich are peopleare free to experiment extendingknowledgeand therebyenabling by to improvements be madeto the generalwealthof all.It is throughaddressing questionthat this we can locate what I believeto be the fundamental weaknessesin Hayek's work.nor can the need of one individual.'rational by constructivist' attemptsto distributeresourceson the basis of 'justice'are doomed to failure becausewe lack objectivecriteriafor determining and 'merit'or 'need'. Values are a Hayek arguesthat the spontaneousorder is value-neutral. justiceat whichsocialism andwiththat freedom underthe law whichthe ruleof lawis intendedto secure.or the last resort.Further. productof.As the failureof medievalsystemsto locatejust comparing pricesand just wages reveals.for example.7" IV. it is the relevanceof these individualwishes to the of whetherthey will persistor perpetuation the groupor the speciesthat will determine change. decent with that of another. CRITIQUE: THE NORMATIVEDIMENSION compared Decisionson suchmattersinevitably leadto arbitrariness.79 403 .

Hayek.82 by the well-known amongothers. objectionmay perhapsbe overridden as has been suggested.84 if.'universal This does not upholdlibertybut ratherpermitshighlyoppressive policies.or the idealsof beautyor well-being guideit.87 Thirdly. extremely Survivalis no test of moralworth and the theorycan be used to dubious. local factors.In so far as the evolutionaryjustifyany utilitariancriterionis identifiedwith the capacityto sustain the maximum humanpopulation. it will be recalled. evolutionary In contrast.withnatural development thusseenas involving selectionoperatingto resolvethe conflicts. in orderof importance. would seem that 404 .86thus rendering vulnerable the manywell-known to criticisms utilitarianism.83 or modelstypicallyuse themas explanatory descriptive devices.presumably of and that But this opens the door to a numberof powerfulobjections.the of simplybecausetheyarethe implicitnotion thatrulesaremorallyappropriate result of undesignedevolutionaryprocessesis.libertycannotstandby itselfas the preferences all concerned. and also less morally-neutral conditions. as on the degreeto whichit has to learned satisfyits material needs. rulesof just conduct'. even under Hayek's own leads to the absurdpropositionthat the systemwhich can support the largest population is also the best.such as the exploitationof poweror use of force. Inevitably.88 set of ruleswhichdevelopovertime. Within any given society there will be competition between differentgroups and individualswith differentsets of aims and values: Whether groupwill prosperor be extinguished a as depends muchon the ethicalcode it that obeys. how can the considerable differencesbetween the rules operating in it differingsocietiesbe explained? Given these compatiblewith a systemthat definition.which liberty.that thelitigationprocess generates a natural tendency for common law rules to evolve towards as ruleswill havethe incentive to efficiency. may be considered increasing it has been arguedthat the rule of law.90 and.What is 'good' or 'bad' is thus a questionof what provesto be effectivein terms of survival. Clearlythis propositionhas a normative character thusmustbe positedon some moralvalue. postulatesas a goal the himself of maximizing the welfareof mankindas a whole.the test of 'universalizability' implies not merely a consistencyof treatmentbetween as similarcasesbut also that the rulesshouldbe impartial to the interestsand of Secondly. thosedisadvantaged inefficient by These other exponents of challenge then until they are overturned."9 The outcome of competitionbetweengroups with differentsets of aims and interestsmay be determinedby accident. wereit otherwise. This Darwinianapproachis paralleledby the currentfashion to apply modelsof evolutionto legalandeconomicinstitutions"8 and socio-biological thesisof Priest. to say the least.80 is Cultural conflictsof norms. regards liberty as of he essentialfor the progress civilization.Hayek'scentralpurposeis to arguethat the libertyinherentin rulesof just conduct ordershouldbe preserved the universal spontaneous by which constitutethe rule of law.85 sole moral value being invoked.

Evenif we wereto accedeto Hayek'smeta-legal that requirement legislation shouldaccordwiththe 'universal rulesofjust conduct'.if he wishesto adhereto his 'Blueprint the GreatSociety'.it is farfromclearwhy redistributive should be regardedas necessarilyinfringingthose mineasures To prescribe all citizensmustbe guaranteed that accessto a minimum rules.94 perhaps for and the argument holds for manychoiceswhichareless thantragic.91 2. justice92 thearguments in he marshals supportof the thesisarenot his strongest. maylegitimately inquire how the principles commonlaw couldproperly of satisfythe test of 'equality' when in practicethey were formulatedin relation only to the claims of individuals hadthemeansandwillingness takelegalproceedings the who to in as in more recenttimesaccessto those courtshas highercourts.wholeheartedly constructivism'. The pricesthat individuals willingto are of pay areas mucha reflection theirwealthpositionas of the intensityof their measure desirefor the goods in questionand.99 405 .96 Thereis an evidentdifficulty reachingfirm in conclusionson this mattersimplybecauseHayek is vague on the degreeof generalityrequiredfor his universalrules such.sensemarket-based decisionson suchresources as arbitrary are as thosegroundedin othercriteria. froman historical perspective.95 amountof resources. examplekidneymachines.of course. for example.In a moral." But. allocationpurelyby reference the marketmethodmay be acceptablefor to for washingpowdersbutis intolerable the 'tragicchoices'forcedon societyby the scarcityof some resources.sufficient enablethem to participate to activelyin the or thatall thosewithincomeabovea certainthreshold shouldpay community taxeswould seemto be no less 'universal' than to insist that all occupiersof owe premises a commondutyto lawfulvisitorsto see thattheyarereasonably safe in using the premises. been facilitatedby legal aid and other developments.93The fact that it may not be to thanaccording themarket to needotherwise possibleobjectively determine criterion abilityto payshouldnot leadto theconclusion of thatthatmethodof allocationis necessarily loth even to offer one examples.for Hayek.constitutean imperfect of socialwelfare.Conversely. Social Justice and UniversalRules of Just Conduct Many .is forced of his idealorder.or distributional. becauseit rests on his own definitionof justice which does not accordwith common usage.As Calabresi Bobbitthaveso eloquently and demonstrated. indeed. proposition The that 'justice'can apply only to humanconduct(and not states of affairs)would seem to be a semanticone.must find morallyoffensiveHayek's of and rejection anynotionof social.I count myselfamong them.if not a formal. judges have clearly alloweddistributional to influence formulation general the of goals principles.a courseof actionwhich to arguefor the 'rational' adoption haveto condemnas beingitself'rational he would. the broadening of tort liability to accord with loss-distributing techniques such as insurance"9 and the attempts to modify contract obligations in the light of fairness considerations.

those retainingfaith in regulatory systems of law should accept the challengeand attempt to articulatethe cohere.We might not agreewith the specificcharacteristics Weberians which Hayek attributesto the common law in his 'universalrules of just notion of three volumes: Rules and Order (1973). 1986)210-49. Barry. The literature on Hayek of other is voluminous: usefulbibliography to be foundin J.Hayek a is. my conclusion is that the normative of dimension Hayek'sworkis untenable. 4 F.notablythe unduefocus on a restrictive very assertionsforce us to reflecton.The insistenceon the limits to humanknowledgeand hence on the constrained to measures. P.See. disciples in contrast. Ogus. perhaps.represents important of law and certainlydoes not deserveits neglect by legal theorists.p. V.his epistemologicallyof while weakenedby a tendencyto push based theoryof spontaneousorder.These principles are.op. an explanatory As model of the development politicaland legal institutions. an to too contribution ourunderstanding arguments far.. and explorefurther. cit.1and'Spontaneous Democracy 35 Jahrbuch des Offentlichen Rechts der Gegenwart 1. 4 (1973). and principles valuesaroundwhichsuchsystemsmightplausibly NOTESAND REFERENCES 1 A. 3 The only leadinglegal theoristwho appearsto have grappledseriouslywith Hayek's writings is Professor Neil MacCormick.TheNewRight(1987). Gray. 2 N.100 threatsto theenvironment humanwelfare.Legal Right and Social Order Ruleof Law:SomeProblems' and (1986) (1982).Libertyand the CommonLaw' (1980) 15 J.intendedto fostereconomic growth by meeting the parties' reasonable expectations but the very of of to unpredictability the application a generalprinciple specificfacts will often hinder planningwhich is so essential for that growth. universal and rules posesimmense of just conductcan hardlyprovidethe protectionwhichmembers society of will demandagainstuncontrolled experimentation.. I.Hayek's unqualifiedpreferencefor generaljudicial principlesprovokes more criticism. 406 . an age whenfast-expanding technology allow.once liberated resultingfrom that insistenceon liberty. of course. and The Political Order of a Free People (1979). Hayek. 'Economics. 5 Hayek.the sets of values fromthe stranglehold whichgive integrityto thatlaw. particularly. ability'rationally' controlbehaviour. n. Indeed. Societyof Public Teachersof Law 55. 17. on Liberty (2nded. CONCLUSION For the reasons outlined in the last section. particularly regulatory by provides a powerful antidote to the more optimisticviews expressedby and others. The Mirage of Social Justice (1976).but these conduct'. It has been demonstratedthat the economicallyoptimal precision of rules typically requiresa much greaterdegree of specificitythan Hayek's model would in Moreseriously. A.

11. cit. n. See also C. 12 F. 116. cit. F. herewithDworkin's 29 Thereis an obviousparallel (R. and this 35 Using Hayekianarguments.6 T.op. 29. 131.p. 32 id. Politics and Economics (1967) 17.p. Taylor. Monetary Theoryand the Trade Cycle (1933).. 1. 34-5..n. 34 cf. 5. n. 39 Deliberately adoptingthis term. p. p. cit. 12.. cit. p. n.op. 89. Ogus. 26. pp. n.op. anti-Keynesian paperwithHayek's in to Contribution Economics' EssaysonHayek. 4. 3-6. p. chs. 65. C. Profits. p. Teichgraeber (1988)66-8. in 7 For example.. n. cit. 4 (1973).op.p. 1. Hayek. 7.. 5. I am not concerned in this 20 21 22 23 24 25 26 on workon money. 7. 'Hayek's 19-33. op. cit... 12. 57. 42 id. cit.op.. Hayek. Deriving WelfareRightsfrom LibertarianRights (1979).p. 10 id. of The (1971) 1 PoliticalScience Privilege' 'Hayek'sLiberalism: Constitution Perpetual Rev. 4 (1973)..thoughunderthe latter. cit.p..andtradecycles. n. His major pre-war publications were: Prices and Production (1931). is of the can 36 Hayekadmitsthat legislation increase certainty the law but 'thisadvantage that leadsto the requirement onlywhat has thus been morethan offsetif its recognition in op..'Economicsand Knowledge'(1937) 4 Economica reprinted F. ch. cit. cit.op. op. The Counter-Revolutionof Science (1952). A. Hayek. C.pp. 2-3.. 45. Georgeand P. learnfromthepastto 11 'Although itself. 10.p. n. cit. n.op. Law's 'lawas integrity' 40 Hayek. cit. chs. 4 (1976).. E. see also op. Buchanan. cit. pp. Hayek..op. Hayek. G. 4 (1973). 41 id... Economics. 4 (1973)ch. F. 125.op.. of avoida repetition the sameprocess': A. 31 id. 37 id.op. The Fundamentalsof Austrian Economics (2nd ed. 55. n. 2.op.op. n. 2. E. socialinsurance.the Herculean viewsof justice. 27 Hayek. 4 (1973). 28 id. in Economics' TheBoundaries J. 7. 11-13... 11.TheRoadto Serfdom (1944)1.. n.p. 1-5.. n. cit.'Hayek. 4 (1973). 8 9 id. 43 A. id. A. cit. 285:hencethe case forcompulsory 45 V. p. 2. 7-9.Freedom the Law(1961)..Hayek(1983)147. 38 id. Interest and Investment(1939).amongothers:cf. Hayek. Hayek.seeF. A. cit.. cit. 39. n. 33. Ideology Social Welfare 407 . n.op. 69. F. Gray. 14.. Dworkin. Hayek.p. 107. Hayek..op. 4 (1973). p. to the judgeis expected interpret Empire (1986)). 56. 110-23. Leoni. Hayek. expressed statutesshouldhavethe forceof law'[hisitalics]: cit. A. extremepositionis takenin B. Individualismand Economic Order(1949) ch. n.. cit. 138. 4 (1976). Machlup (1977) Machlup.. Hayek. Studies in Philosophy.. of in general principles the lightof his perceptions changing 30 Hayek. n. 13 14 15 16 17 18 19 cf. Bay. 1980).. The Constitutionof Liberty (1960) ch. Hayek. pp.p. 10. F.. we canin a measure historyneverquiterepeats F. and (1976)ch. 86.ed. 28.the ScottishSchoolandContemporary of usedby AdamSmith. this. n.op. 4 (1973). n. 5. Butler. Hayek. n. Wilding.chs. 33 id.. Winstonand R. Hayek. 26. 96-7. 44 Hayek.

36. however.. 68 Notably.. 241.P. J.. 223. C. pp. State and Utopia (1974). Mueller. p. M.op....p. L.. cit.. See also op. cit. 55 Hayek. cit.46 Hayek. Ogus and C. Zerbe (ed. Anarchy. cit.. 238..op. cit. I. 3. cit. 26.He is. n. 1961). cit. n. 53 Rev. B.p. 48 50 R. 44. p. cit. 61 63 64 Associated Provincial Picture Houses Ltd. n. pp. 52 id. 36. particular the former's LawandtheConstitution (1933)and 59 Hayek. n. 4 (1979). 247. in to The 58 id. 51 Exceptwhere. referring. n. 54 A. a 'firmly established constitutional tradition' 70 id. 55. n.. n.op. AdministrativeLaw (1983) 30-1. p. 14. 14. v WednesburyCorp.op. id. 6. 65 Hayek. cit. 62.. 11... P. 75 cf. 4 (1976). Law of the Constitution(10th ed. Tullock.). 60 id. (1982) 4 Research in Law and Economics.op. 119. 32. Nozick. 44-56.op. The Calculusof Consent:Logical Foundationsof a Constitutional Democracy (1962) and J. 82 G. 26.tolls are practicable: (1979). n. The Limits of Liberty: Between see and (1975). A.. 4 (1976). 36. H. 1988)33-4 andch. than to litigate:'CommonLaw and Statute may find it cheaperto lobby the legislature Law' (1982) 11 L.p.. 66 id. 39. Legal Studies 205. cit. cit.). Veljanovski. See. 33. R. n. mayarise.and for its application Britishinstitutions R. cit. 4 highways. 85 Gray. 67 id. Priest. p. n.p.Public Anarchy Leviathan see to Choice(1979). Matthews (ed. of see criticism Kelsenandlegalpositivism. Wade.. Supra. n.. Rubinhasargued statutelawwillhave 83 In an interesting rules sinceundercertainconditionsthosedisadvantaged inefficient a similar by property. Raz. 13.op. 47 id.p. 67. cit. p. 36-7.. Rules'(1977)6 J. 46. id. p. n. pp. M. p.. R. 1. 91.. 76 77 78 79 80 81 Hayek. 56 Hayek. cf. n. generally. 64-5. n. example beingfamilylaw:op.. Readings in the Economics of Law and Regulation (1984) 49 Hayek. Law 62 H. 227-8. p. 141. J. 11. O. 12. 84 J. n. 4 (1979).op. p. 'TheRuleof Lawand Its Virtues' (1977)93 LawQuarterly 185. 74 id.the mostprominent 73 id. 26. Law the latter's Justice and Admninistrative (3rd ed.p. 26. Evolutionary Models in Economics and Law. id. [1948] 1 K. cit. Hayek. Hayek. V. 4 (1979). 86.n.. 4 (1976) in long-distance Hayek. op. p.pp.op. n. Natural Law and Natural Rights (1980).. 71 Hayek. Dicey. ch.op. W.. 26. 57 Hayek. For an extended op. p. M. with whereindividuals placedin closecommunity others.positiveduties are 72 Exceptionally. O. Buchanan. C. Legal Studies 65. 107. Economy and Democracy (1985). p. 26. cit.p. 1951). D. to reluctant proposethata countrywith 69 Hayek.. 4 (1976). cit. 17. pp. 408 . 17-23. shouldadopthis model:p. pp.'TheCommonLawProcessand the Selectionof Efficient that to extension thistheory. Finnis.Administrative (6thed.For a reviewof the literature.op. Buchanan and G...p. Craig.op.. cit.

MacCormick. 4 (1976).SocialJustice(1976)17-20. 17-23). 470. wherein formulating dutyowed by the the surveyorsto house purchasers judges drawa clear distinctionbetweeninexpensive housesandotherproperty. he is there to calculus evaluate to thansystems as rules. 43. 94 G. 92 A reaction whichhe anticipated: cit. 173-5. Legislation and Liberty.R.'Quantitative to and Approach Law. Veljanovski (1981)ch. 87 Usefullysummarized J.Tragic and Choices (1978).. 99 H. cit.. cit. P. n. Burrows C. 13. n.It shouldbe notedthatthoughHayekdescribes purposes: utilitarianism a 'constructivist as fallacy'(op.. cit. 1987) p. Ehrlich R. and 100 I. 3 (1986)p. 88 cf. L. Gordon.J.inviolability property.eds. 141. Miller. Markets. op. op.. Calabresi P. 98 P. n. pp. in MoralsandtheLaw(1988)ch.. cit. Cane. Collins. 514. n. vol. Ogus. n. 'Review of Law. p. 93 D.pp. Bobbitt. cit. 9.. 3. 409 . For a striking influences negligence on claims. the of of and another damage for in causedby faultinvariably feature contemporary dutyto compensate systemsof privatelaw:op. Posner.op. Hayek'(1981) 14 Canadian Economics J. LawandSociety142. n.86 More specifically the maximizing chancesof membersof society to achieveunknown Hayek. A. cit. 97 Thoughat one point he notes that freedom contract. n. Atiyah's Accident Compensationand the Law (4th ed. cit. 4 (1976). Miller. 40. 2. I. The Law of Contract (1986) ch. II: The Mirage of Social Justice' (1977)4 Br. 3 (1986). 12. 91 cf..'An Economic Analysisof LegalRulemaking' (1974)3 J. S.rather referring theuseof hedonistic particular a whole. Coleman. Rulesand JudicialDecisionMaking'in TheEconomic Studies.see the recentHouse of Lords exampleof distributional decisionSmithv EricBush[1989]2 All E. Legal A. p. 95 D.op. 96 Occupiers' Act Liability 1957s. op.'ThePoliticalEconomyof F.op. 90 Bay.. 306. n. 4.p.MacCormick. 9. 89 Gray. 26. 234.

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