Law Legislation and Liberty: Rules and Order / Edition 1

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Overview

This volume represents the first section of F. A. Hayek's comprehensive three-part study of the relations between law and liberty. Rules and Order constructs the framework necessary for a critical analysis of prevailing theories of justice and of the conditions which a constitution securing personal liberty would have to satisfy.

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Product Details

  • ISBN-13: 9780226320861
  • Publisher: University of Chicago Press
  • Publication date: 2/28/1978
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 191
  • Sales rank: 708,411
  • Product dimensions: 5.57 (w) x 8.54 (h) x 0.56 (d)

Meet the Author

F. A. Hayek (1899-1992), recipient of the Medal of Freedom in 1991 and co-winner of the Nobel Memorial Prize in Economics in 1974, was a pioneer in monetary theory and a leading proponent of classical liberalism  in the twentieth century. He taught at the University of London, the University of Chicago, and the University of Freiburg.

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Read an Excerpt

Law, Legislation and Liberty, Volume 1

Rules and Order


By F. A. Hayek

The University of Chicago Press

Copyright © 1973 F A Hayek
All rights reserved.
ISBN: 978-0-226-32086-1



CHAPTER 1

REASON AND EVOLUTION


To relate by whom, and in what connection, the true law of the formation of free states was recognized, and how this discovery, closely akin to those which, under the names of development, evolution, and continuity, have given a new and deeper method to other sciences, solved the ancient problem between stability and change, and determined the authority of tradition on the progress of thought. Lord Acton


Construction and evolution

There are two ways of looking at the pattern of human activities which lead to very different conclusions concerning both its explanation and the possibilities of deliberately altering it. Of these, one is based on conceptions which are demonstrably false, yet are so pleasing to human vanity that they have gained great influence and are constantly employed even by people who know that they rest on a fiction, but believe that fiction to be innocuous. The other, although few people will question its basic contentions if they are stated abstractly, leads in some respects to conclusions so unwelcome that few are willing to follow it through to the end.

The first gives us a sense of unlimited power to realize our wishes, while the second leads to the insight that there are limitations to what we can deliberately bring about, and to the recognition that some of our present hopes are delusions. Yet the effect of allowing ourselves to be deluded by the first view has always been that man has actually limited the scope of what he can achieve. For it has always been the recognition of the limits of the possible which has enabled man to make full use of his powers.

The first view holds that human institutions will serve human purposes only if they have been deliberately designed for these purposes, often also that the fact that an institution exists is evidence of its having been created for a purpose, and always that we should so re-design society and its institutions that all our actions will be wholly guided by known purposes. To most people these propositions seem almost self-evident and to constitute an attitude alone worthy of a thinking being. Yet the belief underlying them, that we owe all beneficial institutions to design, and that only such design has made or can make them useful for our purposes, is largely false.

This view is rooted originally in a deeply ingrained propensity of primitive thought to interpret all regularity to be found in phenomena anthropomorphically, as the result of the design of a thinking mind. But just when man was well on the way to emancipating himself from this naive conception, it was revived by the support of a powerful philosophy with which the aim of freeing the human mind from false prejudices has become closely associated, and which became the dominant conception of the Age of Reason.

The other view, which has slowly and gradually advanced since antiquity but for a time was almost entirely overwhelmed by the more glamorous constructivist view, was that that orderliness of society which greatly increased the effectiveness of individual action was not due solely to institutions and practices which had been invented or designed for that purpose, but was largely due to a process described at first as 'growth' and later as 'evolution', a process in which practices which had first been adopted for other reasons, or even purely accidentally, were preserved because they enabled the group in which they had arisen to prevail over others. Since its first systematic development in the eighteenth century this view had to struggle not only against the anthropomorphism of primitive thinking but even more against the reinforcement these naive views had received from the new rationalist philosophy. It was indeed the challenge which this philosophy provided that led to the explicit formulation of the evolutionary view.


The tenets of Cartesian rationalism

The great thinker from whom the basic ideas of what we shall call constructivist rationalism received their most complete expression was René Descartes. But while he refrained from drawing the conclusions from them for social and moral arguments, these were mainly elaborated by his slightly older (but much more long-lived) contemporary, Thomas Hobbes. Although Descartes' immediate concern was to establish criteria for the truth of propositions, these were inevitably also applied by his followers to judge the appropriateness and justification of actions. The 'radical doubt' which made him refuse to accept anything as true which could not be logically derived from explicit premises that were 'clear and distinct', and therefore beyond possible doubt, deprived of validity all those rules of conduct which could not be justified in this manner. Although Descartes himself could escape the consequences by ascribing such rules of conduct to the design of an omniscient deity, for those among his followers to whom this no longer seemed an adequate explanation the acceptance of anything which was based merely on tradition and could not be fully justified on rational grounds appeared as an irrational superstition. The rejection as 'mere opinion' of all that could not be demonstrated to be true by his criteria became the dominant characteristic of the movement which he started.

Since for Descartes reason was defined as logical deduction from explicit premises, rational action also came to mean only such action as was determined entirely by known and demonstrable truth. It is almost an inevitable step from this to the conclusion that only what is true in this sense can lead to successful action, and that therefore everything to which man owes his achievements is a product of his reasoning thus conceived. Institutions and practices which have not been designed in this manner can be beneficial only by accident. Such became the characteristic attitude of Cartesian constructivism with its contempt for tradition, custom, and history in general. Man's reason alone should enable him to construct society anew.

This 'rationalist' approach, however, meant in effect a relapse into earlier, anthropomorphic modes of thinking. It produced a renewed propensity to ascribe the origin of all institutions of culture to invention or design. Morals, religion and law, language and writing, money and the market, were thought of as having been deliberately constructed by somebody, or at least as owing whatever perfection they possessed to such design. This intentionalist or pragmatic account of history found its fullest expression in the conception of the formation of society by a social contract, first in Hobbes and then in Rousseau, who in many respects was a direct follower of Descartes. Even though their theory was not always meant as a historical account of what actually happened, it was always meant to provide a guideline for deciding whether or not existing institutions were to be approved as rational.

It is to this philosophical conception that we owe the preference which prevails to the present day for everything that is done 'consciously' or 'deliberately', and from it the terms 'irrational' or 'non-rational' derive the derogatory meaning they now have. Because of this the earlier presumption in favour of traditional or established institutions and usages became a presumption against them, and 'opinion' came to be thought of as 'mere' opinion—something not demonstrable or decidable by reason and therefore not to be accepted as a valid ground for decision.

Yet the basic assumption underlying the belief that man has achieved mastery of his surroundings mainly through his capacity for logical deduction from explicit premises is factually false, and any attempt to confine his actions to what could thus be justified would deprive him of many of the most effective means to success that have been available to him. It is simply not true that our actions owe their effectiveness solely or chiefly to knowledge which we can state in words and which can therefore constitute the explicit premises of a syllogism. Many of the institutions of society which are indispensable conditions for the successful pursuit of our conscious aims are in fact the result of customs, habits or practices which have been neither invented nor are observed with any such purpose in view. We live in a society in which we can successfully orientate ourselves, and in which our actions have a good chance of achieving their aims, not only because our fellows are governed by known aims or known connections between means and ends, but because they are also confined by rules whose purpose or origin we often do not know and of whose very existence we are often not aware.

Man is as much a rule-following animal as a purpose-seeking one. And he is successful not because he knows why he ought to observe the rules which he does observe, or is even capable of stating all these rules in words, but because his thinking and acting are governed by rules which have by a process of selection been evolved in the society in which he lives, and which are thus the product of the experience of generations.


The permanent limitations of our factual knowledge

The constructivist approach leads to false conclusions because man's actions are largely successful, not merely in the primitive stage but perhaps even more so in civilization, because they are adapted both to the particular facts which he knows and to a great many other facts he does not and cannot know. And this adaptation to the general circumstances that surround him is brought about by his observance of rules which he has not designed and often does not even know explicitly, although he is able to honour them in action. Or, to put this differently, our adaptation to our environment does not consist only, and perhaps not even chiefly, in an insight into the relations between cause and effect, but also in our actions being governed by rules adapted to the kind of world in which we live, that is, to circumstances which we are not aware of and which yet determine the pattern of our successful actions.

Complete rationality of action in the Cartesian sense demands complete knowledge of all the relevant facts. A designer or engineer needs all the data and full power to control or manipulate them if he is to organize the material objects to produce the intended result. But the success of action in society depends on more particular facts than anyone can possibly know. And our whole civilization in consequence rests, and must rest, on our believing much that we cannot know to be true in the Cartesian sense.

What we must ask the reader to keep constantly in mind throughout this book, then, is the fact of the necessary and irremediable ignorance on everyone's part of most of the particular facts which determine the actions of all the several members of human society. This may at first seem to be a fact so obvious and incontestable as hardly to deserve mention, and still less to require proof. Yet the result of not constantly stressing it is that it is only too readily forgotten. This is so mainly because it is a very inconvenient fact which makes both our attempts to explain and our attempts to influence intelligently the processes of society very much more difficult, and which places severe limits on what we can say or do about them. There exists therefore a great temptation, as a first approximation, to begin with the assumption that we know everything needed for full explanation or control. This provisional assumption is often treated as something of little consequence which can later be dropped without much effect on the conclusions. Yet this necessary ignorance of most of the particulars which enter the order of a Great Society is the source of the central problem of all social order and the false assumption by which it is provisionally put aside is mostly never explicitly abandoned but merely conveniently forgotten. The argument than proceeds as if that ignorance did not matter.

The fact of our irremediable ignorance of most of the particular facts which determine the processes of society is, however, the reason why most social institutions have taken the form they actually have. To talk about a society about which either the observer or any of its members knows all the particular facts is to talk about something wholly different from anything which has ever existed—a society in which most of what we find in our society would not and could not exist and which, if it ever occurred, would possess properties we cannot even imagine.

I have discussed the importance of our necessary ignorance of the concrete facts at some length in an earlier book and will emphasize its central importance here mainly by stating it at the head of the whole exposition. But there are several points which require restatement or elaboration. In the first instance, the incurable ignorance of everyone of whom I am speaking is the ignorance of particular facts which are or will become known to somebody and thereby affect the whole structure of society. This structure of human activities constantly adapts itself, and functions through adapting itself, to millions of facts which in their entirety are not known to anybody. The significance of this process is most obvious and was at first stressed in the economic field. As it has been said, 'the economic life of a non-socialist society consists of millions of relations or flows between individual firms and households. We can establish certain theorems about them, but we can never observe all.' The insight into the significance of our institutional ignorance in the economic sphere, and into the methods by which we have learnt to overcome this obstacle, was in fact the starting point for those ideas which in the present book are systematically applied to a much wider field. It will be one of our chief contentions that most of the rules of conduct which govern our actions, and most of the institutions which arise out of this regularity, are adaptations to the impossibility of anyone taking conscious account of all the particular facts which enter into the order of society. We shall see, in particular, that the possibility of justice rests on this necessary limitation of our factual knowledge, and that insight into the nature of justice is therefore denied to all those constructivists who habitually argue on the assumption of omniscience.

Another consequence of this basic fact which must be stressed here is that only in the small groups of primitive society can collaboration between the members rest largely on the circumstance that at any one moment they will know more or less the same particular circumstances. Some wise men may be better at interpreting the immediately perceived circumstances or at remembering things in remote places unknown to the others. But the concrete events which the individuals encounter in their daily pursuits will be very much the same for all, and they will act together because the events they know and the objectives at which they aim are more or less the same.

The situation is wholly different in the Great or Open Society where millions of men interact and where civilization as we know it has developed. Economics has long stressed the 'division of labour' which such a situation involves. But it has laid much less stress on the fragmentation of knowledge, on the fact that each member of society can have only a small fraction of the knowledge possessed by all, and that each is therefore ignorant of most of the facts on which the working of society rests. Yet it is the utilization of much more knowledge than anyone can possess, and therefore the fact that each moves within a coherent structure most of whose determinants are unknown to him, that constitutes the distinctive feature of all advanced civilizations.

In civilized society it is indeed not so much the greater knowledge that the individual can acquire, as the greater benefit he receives from the knowledge possessed by others, which is the cause of his ability to pursue an infinitely wider range of ends than merely the satisfaction of his most pressing physical needs. Indeed, a 'civilized' individual may be very ignorant, more ignorant than many a savage, and yet greatly benefit from the civilization in which he lives.

The characteristic error of the constructivist rationalists in this respect is that they tend to base their argument on what has been called the synoptic delusion, that is, on the fiction that all the relevant facts are known to some one mind, and that it is possible to construct from this knowledge of the particulars a desirable social order. Sometimes the delusion is expressed with a touching naïveté by the enthusiasts for a deliberately planned society, as when one of them dreams of the development of 'the art of simultaneous thinking: the ability to deal with a multitude of related phenomena at the same time, and of composing in a single picture both the qualitative and the quantitative attributes of these phenomena' They seem completely unaware that this dream simply assumes away the central problem which any effort towards the understanding or shaping of the order of society raises: our incapacity to assemble as a surveyable whole all the data which enter into the social order. Yet all those who are fascinated by the beautiful plans which result from such an approach because they are 'so orderly, so visible, so easy to understand', are the victims of the synoptic delusion and forget that these plans owe their seeming clarity to the planner's disregard of all the facts he does not know.


(Continues...)

Excerpted from Law, Legislation and Liberty, Volume 1 by F. A. Hayek. Copyright © 1973 F A Hayek. Excerpted by permission of The University of Chicago Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Preface
Introduction
1. Reason and Evolution
2. Cosmos and Taxis
3. Principles and Expediency
4. The Changing Concept of Law
5. Nomos: The Law of Liberty
6. Thesis: The Law of Legislation
Notes
Index

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