Nick's Reviews > Law, Legislation and Liberty, Volume 1: Rules and Order

Law, Legislation and Liberty, Volume 1 by Friedrich Hayek
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Jun 06, 12

bookshelves: economics, history, liberty, philosophy, political-theory

This is pretty much the core of Hayek's awesomeness. Discusses the development of common law, and how it differs from legislation or royal law. Basically common law (or "real" law) is generated through a discovery process. Successful and widespread norms get codified by reputable arbitrators or "judges", and crappy norms are phased out, or stricken down. Of course there are some issues with this. It is inherently slow, like all evolution, but I'm sure you can imagine some creative ways of solving that problem. He claims that legislation was initially supposed to be just bylaws or internal regulations of state administration. Over time through "mission creep" and through ideological subversion of the idea of "law", that has changed.

Thats the stuff which is fresher in my memory since It comes later. However this is all built from very abstract philosophical premises which occupy the first part of the book. There he goes into the distinction between constructivist/cartesian/naive rationalism, and his position of "critical" rationalism (you can tell he made up these terms). Basically the constructivists believe that all knowledge can be derived via rational deduction. Any institutions or traditions which cannot be derived in such a manner ought to be tossed out. This is a "Jacobin" sort of attitude towards old institutions, contrasted with the almost Burkean prudence of Hayek's position. Hayek says that we should presume that traditions and institutions exist because they've survived an evolutionary process of selection which made them fit for a given environment. Granted, conditions may have changed and change might be necessary, but the burden of proof should be on us to prove why the Old Thing should be gotten rid of. They might exist for reasons inscrutable to us because we can NOT deductively ascertain all knowledge.

In between the aforementioned two points also talks about the difference between emergent and constructed orders and how they are interlayered, but that seems pretty obvious and is less interesting to me so I'm not going to write about it okbye.
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