Friedrich Hayek on the Nature of Law

Abstract

The article investigates the nature of law as it is presented in the social theory writings of F. A. Hayek. Even though Hayek is mostly famous for his liberal approach to law, the idea of individual liberty does not explain the way Hayekian “law” as “rules of just conduct” is fundamentally distinct from most of the rules commonly regarded as “law” today. Recognizing the influence of liberal philosophy on Hayek’s legal theory, a liberal interpretation of that theory leaves too many things unexplained. Sometimes these unexplained “anomalies” are not just incoherent with the liberal worldview, but radically contradict it. Oddly enough, even the law of due process is not a part of “rules of just conduct” by a Hayekian standard. To make any sense of this standard we need to go beyond the liberal-normative approach and consider Hayek’s purely instrumental social theory. From that perspective, the nature of law as “rules of just conduct” is determined not only by some generalized characteristics of a liberal spontaneous order, but also by several specific conditions of an epistemically “complex” social context in which an individual is supposed to be acting. Since this epistemic “complexity” is not ubiquitous for a liberal spontaneous order, not every social institution intended to secure individual liberty has a chance to be attributed with a distinct name of “true law” in Hayek’s view, as well as not every distinct feature of “true law” is conditioned by liberal considerations. Epistemological considerations matter more. Unusual as it is, this instrumental socio-epistemic interpretation of the nature of law can explain not only all the mismatches between Hayekian “rules of just conduct” and a more traditional liberal-normative ideal of law, but also reveal some of the most distinctive elements of his legal theory. These elements define what can be a possible contribution of Hayek to theoretical jurisprudence and suggest quite a unique “epistemic” way to make a strict distinction between “law” and all the other social rules for the first being only the rules of individual action in an epistemically “complex” social context. 

Keywords:

Friedrich Hayek, the nature of law, liberalism, social theory, rules of just conduct, rules of organization, social complexity, epistemology