Timothy Sandefur’s Criticism of Spontaneous Order

Posted on September 10, 2009 by

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I recently received word that the latest Independent Review has a criticism of Hayek’s approach to spontaneous orders in its latest issue. Their description of the article is as follows:

Some Problems with Spontaneous Order

By Timothy Sandefur (Pacific Legal Foundation)
F. A. Hayek’s insights into the differences between “spontaneous order” and “constructed order” can help us describe how social institutions grow and change, but contrary to much libertarian and conservative thought, they do not offer legislators and judges any normative guidance. One problem is that although altering a social or legal institution may seem like attempting to impose order when viewed at close range, it may seem like part of a spontaneous order when viewed as one experiment among many within society as a whole.

Since I do not have the magazine, and the article is not online, I googled Sandefur , Hayek,and Spontaneous Order and found a number of pieces he wrote in 2005. See especially his blog of Feb 8, On the abuses of spontaneous order,  as well as a Nov. 13 report on a Hayek Conference. While I imagine the piece that finally saw publication is stronger than these preliminary discussions, Sandefur repeated so many common misperceptions of the idea in his posts that I am picking on him to initiate a discussion on the problems he sees. I imagine he or a supporter will point out where his thinking has advanced and he is no longer guilty of these misunderstandings.

I think Timothy Sandefur does not understand Hayek’s meaning of spontaneous order, a problem hardly confined to him. His most basic error is that he has a static understanding of a dynamic concept. Thus, he writes of common law, that judges should rule based on precedents unless th judge disagrees with where that ruling would take the case, in which case he creates a new rule based on generally accepted principles that would change the case. Sandefur writes “by those standards, anything a judge does will be acceptable.” (Hayek Conference)

This is wrong, for it isolated the ruling from its immersion in a process, which is an essential part of Hayek’s point. A common law judge rules on a specific case, with lwyers from both sides citing precedents they think will support their side or, much more rarely, argue that precedent should be overturned because it has come into conflict with a more fundamental principle. The judge rules, creating another precedent lawyers may use. Whether it will be used depends on how important the reasoning involved is considered. If it addresses a widely perceived problem in a way that seems appropriate the precedent will continue to be cited in successful cases, and will become important. Otherwise it will tend to disappear into the background. Bruno Leoni gave the most uncompromising argument for a pure common law system that I am aware of in his Freedom and the Law, though there may be a more recent statement.

What is happening is a process of evolutionary adaptation to changing circumstances because the specifics in real cases always vary unpredictably from case to case and from time to time.  There is no way to cover in advance all possible variations that might prove important, so this evolutionary process is utilized.  Sandefur seems unaware of this dimension of spontaneous orders as processes of adaptation.

My suspicion that this is the case was strengthened when Sandefur used an example from his college days, when his college economics professor, Gary Wolfram, explained to us that the concept of spontaneous order teaches us that we should wait to see the order that arises from people’s choices before we make policy, rather than trying to impose policy on people from the top down, on the basis of pure theory. He used to explain it by reference to sidewalks: suppose you want to lay out a college campus, and you want to put in sidewalks that the students will use to go from building to building. The best way, he said, is to wait a few years to see what pathways the students wear into the lawn, and put the sidewalks there, because those are the pathways the students use. Otherwise you’ll have sidewalks, and then you’ll have these pathways across the lawn where the students actually walk.

Wolfram’s example makes an important point, but it has nothing to do with what Hayek meant by a spontaneous order. The pathways on the campus are not in a state of constant change. Students are not having to adapt to new conditions over time as they trudge from one building to another. The data is constant and not uncertain. That is why sidewalks can be laid out. The equivalent in the economy – central planning – can never be achieved because there are no constants.

The same holds true in any spontaneous order such as Hayek described.

A final sign that Sandefur misunderstands Hayek is when he asks, rather rhetorically, whether the Shakers, whose movement arose spontaneously, constituti=ed a spontaneous order. No they did not. Spontaneous orders provide contexts within which certain kinds of projects can be pursued with a better likelihood of success than if they did not exist. The Shakers arose within the spontaneous order (in a more complex sense of the term) of civil society.

If and when I get a copy of his critique, and see that he is not guilty of these misunderstandings from his earlier work, I’ll return to the subject.  Alternatively, I invite either Sandefur or anyone else to set me straight.

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