The Social Basis of Ultimate Legal Rules: Hayek Meets Hart

in Peter J. Boettke, Jayme Lemke, Virgil Storr (eds), Exploring the Political Economy & Social Philosophy of F.A. Hayek (Rowman & Littlefield 2018, Forthcoming)

20 Pages Posted: 25 Oct 2017 Last revised: 24 Mar 2018

See all articles by Mikolaj Barczentewicz

Mikolaj Barczentewicz

University of Oxford - University College

Date Written: October 29, 2017

Abstract

The bulk of the legal literature that either builds on or criticizes Hayek focuses on Hayek’s work specifically devoted to law, in particular to the rule of law and to the common law. I aim to show that there is jurisprudentially valuable insight to be gained by reflecting on Hayek’s other work. I provide here a sketch of a synthesis of Hayek’s thought with the current standard framework in general theory (philosophy) of law, that of H. L. A. Hart. I begin by presenting the outlines of Hart’s model of the foundations of law with the ultimate rule of recognition at its core. Then, I explore two Hayekian themes which shed light on the foundations of law as understood by Hart. First, I consider the rule of recognition as an implicit (unconscious) social rule and a Hayekian spontaneous order. Second, I turn to Hayek’s discussion of ‘common opinion’ on which every official practice of law relies and argue that it should be seen as complimentary with Hart’s model. Finally, I provide an illustration of how Hayekian insights can improve a Hartian account of one of the topical debates in US constitutional law – that of the merits of positive originalism.

Keywords: HLA Hart, Jurisprudence, FA Hayek, Social Rules, Rule of Recognition, Spontaneous Orders, Emergent Orders

Suggested Citation

Barczentewicz, Mikolaj, The Social Basis of Ultimate Legal Rules: Hayek Meets Hart (October 29, 2017). in Peter J. Boettke, Jayme Lemke, Virgil Storr (eds), Exploring the Political Economy & Social Philosophy of F.A. Hayek (Rowman & Littlefield 2018, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3058107 or http://dx.doi.org/10.2139/ssrn.3058107

Mikolaj Barczentewicz (Contact Author)

University of Oxford - University College ( email )

High Street
Oxford, OX1 4BH
United Kingdom

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