Peter Boettke briefly blurbs about the brilliance and limits of Hayek:
I have long argued against libertarian critics of Hayek, that they need to distinguish between what Hayek himself argued, and where a Hayekian argument could be taken…
Boette points to this video of Hayek and Thomas Hazlett discussing anarchy and the rule of law.
I addressed this topic in some older posts at Freedom Democrats.
Evolution of the Sixth Sense and the Application of Hayekian Order to Law
In Hayek’s view, dealing with strangers makes a “hayekian order” in market law unfeasible. In a 2 player repeated game, tit for tat can usually be invoked to explain the evolution of cooperative behavior. However, in social systems where the number of agents is large and transactions can largely be impersonal and transitory, tit for tat is not particularly applicable as a strategy. Hence, the basis for Hayek’s contention that some sort of “constitutional framework” is necessary to host the dynamics of his social theory. However, what if humans had a “sixth sense” that immediately informed them whether a stranger was friendly or not–by “friendly” it is meant that any dispute arising from an exchange or trade could be settled peaceably. In the event of such “extra sensory perception,” Hayek’s skepticism toward impersonal transactions with strangers without a uniform(monopoly) law would have to be reconsidered. That is to say, Hayek’s objection to applying his social theory to a market based law would have to be reexamined.
A second post, Spontaneous Order and Common Law, discussed a Cato Unbound topic, Hayek and Common Law.
As is well known, Hayek refined and extended the Scottish tradition of “spontaneous or emergent order” to cast the “knowledge problem” critique of the price-setting Walrasian Auctioneer(socialism). As Hayek’s life progressed, he became more and more consumed intellectually with taking the concept of “spontaneous order” to it’s logical conclusion, within a modern evolutionary framework, for both economics and law. The Hayekian paradigm in law can be summarized as:
The explanation relies on three fundamental ideas: the idea of a rule (and rule-following), of spontaneous order, and of evolution. The three ideas are interdependent parts of a single, integrated explanatory scheme, designed to show that key elements of social life are ordered — not the product of some designer, but rather the unintended consequences of impersonal and external forces operating on behavior and thought of human beings directed to other ends and purposes. Hayek’s theory of social evolution tells a story of rule-formation, rule-transformation, rule-transmission, and group rule-adoption.
Within such a framework, Hayek argued against the construction of “intentional and purposive institutions” to coordinate individual actions toward some end(justice). The role of legal institutions,such as legislature, should be constrained to a limited number administrative services and correcting(i.e., regulations) the occasional flaws or disputes arising in the emergent social order.
The name of this blog is “Liberal and Libertarian,” which essentially means liberal ends through libertarian means. The term “libertarian means” has an explicit meaning: the rejection of the social contract, a liberal political philosophic concept that nonetheless does not survive the class theory critique. In it’s stead, at least in the radical individualist libertarian tradition, is the market contract. Yes, for any modern liberals out there, this means the rejection of force behind any contractual basis for justice as an end. The market contract constricts “law as a force” to it’s proper sphere, which is the correction of injustice. From a Hayekian methodological approach, one is then interested in spontaneous order evolution of both market law and, yes, positive law in such a system. Liberalism, then, is an emergent property of a complex system of human cooperation. If history teaches us anything, it is that it is not an emergent property of politics and political institutions.