F. A. Hayek's Critique of Legislation
Doctoral theses at the Law Faculty, Uppsala University, Sweden
Posted: 17 Feb 2015
Date Written: December 5, 2014
The dissertation concerns F. A. Hayek’s (1899–1992) critique of legislation. The purpose of the investigation is to clarify and assess that critique.
I argue that there is in Hayek’s work a critique of legislation that is distinct from his well-known critique of social planning. Further that the main claim of this critique is what I refer to as Hayek’s legislation tenet, namely that legislation that aims to achieve specific aggregate results in complex orders of society will decrease the welfare level.
The legislation tenet gains support; (i) from the welfare claim – according to which there is a positive correlation between the utilization of knowledge and the welfare level in society; (ii) from the dispersal of knowledge thesis – according to which the total knowledge of society is dispersed and not available to any one agency; and (iii) from the cultural evolution thesis – according to which evolutionary rules are more favorable to the utilization of knowledge in social cooperation than are legislative rules. More specifically, I argue that these form two lines of argument in support of the legislation tenet. One line of argument is based on the conjunction of the welfare claim and the dispersal of knowledge thesis. I argue that this line of argument is true. The other line of argument is based on the conjunction of the welfare claim and the cultural evolution thesis. I argue that this line of argument is false, mainly because the empirical work of political scientist Elinor Ostrom refutes it. Because the two lines of argument support the legislation tenet independently of each other, I argue that Hayek’s critique of legislation is true.
In this dissertation, I further develop a legislative policy tool as based on the welfare claim and Hayek’s conception of coercion. I also consider Hayek’s idea that rules and law are instrumental in forging rational individual action and rational social orders, and turn to review this idea in light of the work of experimental economist Vernon Smith and economic historian Avner Greif. I find that Smith and Greif support this idea of Hayek’s, and I conjecture that it contributes to our understanding of Adam Smith’s notion of the invisible hand: It is rules – not an invisible hand – that prompt subjects to align individual and aggregate rationality in social interaction.
Finally, I argue that Hayek’s critique is essentially utilitarian, as it is concerned with the negative welfare consequences of certain forms of legislation. And although it may appear that the dispersal of knowledge thesis will undermine the possibility of carrying out the utilitarian calculus, due to the lack of knowledge of the consequences of one’s actions – and therefore undermine the legislation tenet itself – I argue that the distinction between utilitarianism conceived as a method of deliberation and utilitarianism conceived as a criterion of correctness may be used to save Hayek’s critique from this objection.
Keywords: Hayek, legislation, rules, law, rationality, equilibrium,utilitarianism, Smith, Ostrom, Greif, Epstein, Berman, Mises, Marx, complexity, knowledge, know-how, invisible hand, welfare state, institutional policy analysis, constructivist rationalism, Rawls, Nozick, distribution, justice, freedom, Kant
JEL Classification: A12, A13, A14, A19, B24, B25, B29, B31, D59, D60, D63, D69, D80, G18, G38, H11, H19, H21, I30, I39
Suggested Citation: Suggested Citation