Four Problems with Spontaneous Order by conservative-libertarian lawyer Tim Sandefur on Cato Unbound, is a nice essay criticizing Hayek’s notion of spontaneous order. The paper is drawn from a longer article that appeared in The Independent Review, the excellent libertarian journal edited by Bob Higgs, who is also on the editorial board of my journal Libertarian Papers. The paper quotes Chandran Kukathas, who also had a nice article in Libertarian Papers–what a small libertarian world this is. Regarding problems in applying Hayek’s to legal theory, I’ve also written on related topics before in my “Knowledge, Calculation, Conflict, and Law,” a review essay of Randy Barnett’s The Structure of Liberty in the Winter 1999 Quarterly Journal of Austrian Economics. See also my posts Hayek, IP, and Knowledge and Knowledge vs. Calculation.
Update: John Hasnas has a devastating reply to Sandefur’s minarchism and centralism here. The money shot:
I think it is fairly clear that I have not advocated doing nothing to help those who are suffering or to end injustice. Indeed, we should all work as hard as we can to end injustice. But the question under consideration in the present context is whether a spontaneous or constructed legal order is normatively preferable. Will advocacy against injustice be more likely to be successful in system of rules that evolve without any identifiable human agency having the power to impose a decision on the entire order or in one in which there is such an agency? I have argued for the former. My position is that advocacy against injustice is more likely to be successful in a spontaneous legal order than in a constructed one.
I understand the allure of the latter — the temptation to swoop in with the power of legislation to right wrongs and eliminate injustice. I also find the image of Don Quixote inspiring. But I believe both to be fantasies. The mechanism of collective choice that allows one to dream of achieving justice now and once and for all equally lends itself to the achievement of exploitative ends, and the incentives in constructed orders favor the latter.
Advocating against injustice in an open-ended spontaneous legal order can be unsatisfying in that it often requires a protracted effort and produces only partial success. One has to accept that progress will be gradual and incremental, and that the ideal of justice cannot be rapidly achieved, but can be heartened that the progress is likely to be sustained. One advocates for a continuously evolving customary/common law legal order not because it is ideal, but because human experience teaches that we need a prophylactic against the temptation to use the power of collective choice to achieve our ideals.
The power to legislate gave us Jim Crow. Thurgood Marshall and Charles Hamilton Houston fought a decades long campaign to gradually undermine and destroy the injustice of this legislation through private lawsuit. I would not characterize their efforts as “doing nothing.” But I would suggest that their efforts might not have been necessary in a purely customary/common law legal order in which the power to pass such legislation in the first place does not exist.