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16 J.L. & Soc'y 393 (1989)
Law and Spontaneous Order: Hayek's Contribution to Legal Theory

handle is hein.journals/jlsocty16 and id is 401 raw text is: JOURNAL OF LAW AND SOCIETY
VOLUME 16, NUMBER 4, WINTER 1989
0263-323X $3.00
Law And Spontaneous Order: Hayek's Contribution to Legal
Theory
A. I. OGUS*
Ten years ago, I observed that the work of Friedrich von Hayek had been
unjustifiably neglected by legal writers in this country.1 Notwithstanding the
impact and influence of New Right theorists in the period since then,2 the
situation has not altered significantly.3 This is all the more surprising because,
particularly in his later works, Hayek addresses issues central to legal theory:
the nature of law and the state, justice, constitutional structures, and the rival
merits of common law and legislation.
Of course, Hayek's exploration of law has been, in no sense, a separate
enterprise; rather, it is but one part of an overarching unified restatement of
liberalism, having at its base a theory of knowledge and scientific inquiry,
which is developed systematically first in relation to economic decision
making and systems and then to the political order as a whole. In this paper I
shall focus on Hayek's contribution to legal theory as expounded principally
in his last major work Law, Legislation and Liberty4 but will attempt to place
that in the context of his general theory of society, as it was developed
throughout his intellectual career. After a short account of Hayek's approach
to social science methodology, I show how he uses an epistemological theory
to develop two models of social organization: spontaneous order, which he
identifies with the market and with common law, and rational constructivism,
which is associated with a planned economy and regulatory law. Hayek's main
thesis is that it is only the first of these which, by preserving liberty subject only
to universal rules of just conduct, can guarantee the progress of human
civilization. I argue that the normative dimension of this assertion is
fundamentally flawed but that, as an explanatory model of the development of
law, Hayek's theory merits serious attention.
* Professor of Law, The University, Manchester M13 9PL, England.
This paper is the second in a series dealing with the work of theorists who have substantially
influenced contemporary understanding of law and society. (See previously H. Collins, 'Roberto
Unger and the Critical Legal Studies Movement' (1987) 13 J. of Law and Society 387.)
393

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