I admit to a penchant for liking to read what I write, even when I’m writing about someone else’s writings. The following essay is based on a compilation of the notes I made while reading Friedrich Hayek’s ‘Law, legislation and liberty’ in January and February of this year, 2011. I hope that any self-indulgences will be balanced by the greater clarity they bring to the numerous issues tackled.
WHAT IS ‘THE GOOD’? ONLY THAT WHICH WE SEE AFTER THE FACT
Hayek’s spontaneous order is a brilliant after-the-fact description of how civilization and economic progress come about. Unfortunately, he goes out of his way to insert his bias towards government, by speaking of an entity that provides that which the spontaneous order could not on its own (namely police and courts, and some welfare). Not only could this premise taken in itself be stretched to include all government intervention and indeed its takeover of all industry, but it belittles the spontaneous order which is precisely reflected in the property rights system, by which social order exists.
And by agreeing to Hayek’s qualification, we set the stage not just for the existence of governments, but of a single world, nay, universe government that provides the security that a spontaneous order could not provide on its own.
RIGHTS ― INVENTION OR DISCOVERY?
In my ‘Property rights as power’ (PRAP) I criticize the idea that rights ― that is, non-abstract things called ‘rights’ in the Rothbardian or Christian sense ― are merely discovered. However, Hayek’s idea that there are discoverable principles implicitly used prior to their articulation is rather sound.
Hayek sees legislation as a mere uncovering or articulation of the already existing ‘common’ law, not explicitly taking into account the constant evolution of this underlying law itself. I don’t mean that an underlying law would have to be tweaked over time amongst different people, wherein this underlying law itself would also be in a process of change. Rather, this underlying law is just as much a ‘law’ as gravity, which does not change except to the extent that human constitutions and faculties of perception change.
People’s ‘discovery’ as manifest in legislation actually pertains to an improvement in the application of social and economic principles for the sake of long-term dominance. From the beginning, the manifestation or implementation of ‘law’ is not done so uniformly within society, even as there are certain tenets on which the people could agree.
This variation of the concept of ‘law’ between peoples is what makes for evolution of articulated law over time. As people accumulate resources over time, they discover better means for the further empowerment of each individual, and this involves mutual and voluntary cooperation as implied in the property rights system, which as yet is far from perfectly practiced.
There is also the lag factor, that is, that with one’s ‘discovery’ of the prevailing practices that make for one’s concept of ‘the’ law, the criteria for survival or empowerment of a species or individuals continues to evolve regardless.
‘LAW’ NOT A SEPARATE ENTITY
The idea of ‘underlying law’ shouldn’t be taken to mean so literally that there is anything that exists apart from the individual actions of people. Moreover, this should not lead one to adopt some Platonistic view of ‘The Order’ that incarnates itself here and there.
As with the invention of something like the computer, which makes use of underlying principles of physics and whatnot, it could not be said that these principles are hovering around waiting to be applied. We couldn’t say either that the computer is merely discovered and that it existed beforehand.
‘LAW’ IS LOOKING BACK
The ‘underlying principle’ is actually an after-the-fact discovery, a generalizing of preceding unique actions or occurrences which finds expression in enumerated principles. After the fact, we discover ‘prevailing’ or dominant practices or behaviors. Legislation must then develop criteria that make for the continued empowerment of the people.
Yet the anarchism we discover to be the most adequate social or economic system, could not have been applied to ancient or even modern times so successfully; the notion itself is contradictory, as early and contemporary people’s actions and mental processes could and should not be set aside in the consideration of the matter. An ‘if only’ or ‘what if’ could only stretch so far.
Ultimately, whatever occurs within a given community, is what served it best, and is a necessity. This does not preclude our looking to the future and framing it in an anarchist viewpoint.
DID SPONTANEOUS ORDER CREATE THE STATE?