Law and Emergent Order

* Hayek. F. A. chapters 16-18, in F. A. Hayek. The Political Order of a Free People. Vol. 3 of Law. Legislation and Liberty, Chicago: University of Chicago Press, 1976, 98-152.

These chapters develop Hayek’s institutional alternative to present day democratic polities, whereby the rule of law can be safely embedded within a democratic framework.

* Hayek. F. A. The Rules of Just Conduct, chapter 8, in F. A. Hayek. The Mirage of Social Justice. Vol. 2 of Law. Legislation and Liberty, Chicago: University of Chicago Press, 1976, 31-61.

This chapter offers an overview of Hayek’s analysis of law and justice, including an incisive critique of legal positivism.

Hayek. F. A. The Changing Concept of Law, Nomos: The Law of Liberty, and Thesis: The Law of Legislation, comprising chapters 4-6, in F. A. Hayek. Rules and Order. Vol. 1 of Law. Legislation and Liberty, Chicago: University of Chicago Press, 1973, 72-144.

Hayek argues law is older than legislation, arising largely from custom and precedent. Nevertheless, on occasion legislation is necessary to correct problems arising from purely evolutionary law (a criticism of Leoni). He discusses the functions of a judge under such a legal system and how legislation is both necessary and quite different from such legal systems.

* Hayek. F. A. Part II: Freedom and the Law, The Constitution of Liberty, Chicago: University of Chicago, 1960. 133-249.

Hayek’s most complete discussion of law as a grown order of rules that evolve rather than reflect an architectonic view of justice and society. Includes the origins of the rule of law, the contributions of American constitutionalism, and its uneasy relationship to political administration.

Horwitz, Steven. Spontaneity and design in the evolution of institutions: the similarities of money and law, Journal des Economistes et des Etudes Humaines, Volume 4, No. 4 December 1993. 571-587.

After offering a general model of institutional development, Horwitz uses the evolution of customary law and money to demonstrate how tacit and complex knowledge can better be coordinated within evolutionary institutions rather than those deliberately created and controlled through central power. Several historical examples buttress his theoretical argument.

* Leoni, Bruno. Freedom and the Law, 3rd edition, Indianapolis: Liberty Fund, 1991. 274 pp.

Leoni makes perhaps the most powerful extended case that the common law tradition is superior to legislative law. Its spontaneous development through precedents gives it greater flexibility while limiting the damage that ill considered legal principles and legislation can do to human freedom and justice.

Trakman, Leon E. The Evolution of the Law Merchant: Our Commercial Heritage, Journal of Maritime Law and Commerce 12, (October, 1980) 1-24; 12 (January 1981) 152-182.

A survey of the Law Merchant from Medieval times to the present. The Law Merchant evolved as a stateless legal framework facilitating relationships and dealings between merchants internationally. It is a clear case of law evolving in a very complex and changing environment purely through the elaboration of the logic of contract, without the intervention of a legislature.

Titles not yet annotated:

Teubner, Gunther (ed.). Global Law Without a State (Studies in Modern Law and Policy), Dartmouth Pub., 1997. 305 pp.

Teubner, Gunther (ed.) Environmental Law and Ecological responsibility: The Concept and Practice of Ecological Self-Organization. John Wiley and Sons, 1994. 411 pp.

Teubner, Gunther et. al., Law as an Autopoietic System. Blackwell Pub., 1993.

Teubner, Gunther (ed.). Autopoietic Law, Walter de Gruyter, Inc., 1988. 380 pp.

Benson, Bruce L. The Enterprise of Law: Justice Without the State, San Francisco: Pacific Research Institute for Public Policy, 1990.

Ellickson, Robert C. Order without Law: How Neighbors Settle Disputes. Cambridge, Mass. and London: Harvard University Press, 1991.

Fuller, Lon. The Morality of Law, New Haven: Yale University Press, 1969. 262 pp.

Hamowy, Ronald. Freedom and the Rule of Law in F. A. Hayek, Il Politico, 1971. pp. 340-77.

Moore, Sally F. Law as Process: An Anthropological Approach. London, Henley, and Boston: Routledge and Kegan Paul. 1978. 304 pp.

Ogus, A. I. Law and Spontaneous Order: Hayek’s Contribution to Legal Theory, Journal of Law and Society, 16:4, 1989. 393-409.

Parisi, Francesco. Toward a Theory of Spontaneous Law, Constitutional Political Economy, 6:3, 1995. 211-31.

Roberts, Simon. Order and Dispute: An Introduction to Legal Anthropology. New York: Penguin. 1979. 216 pp.

Roberts, Simon, “The Study of Dispute: Anthropological Perspectives,” Disputes and Settlements: Law and Human Relations in the West. John Bossey, ed. Cambridge: Cambridge University Press. 1983.

%d bloggers like this: