Table of Contents

Contents
About This Issue
Lead Essay
Four Problems with Spontaneous Order
Response Essays
Four Solutions to Sandefur's Problem
The Conversation
Unmade, Amoral Orders Composed of Made, Moral orders? A
Response to John Hasnas
Once More unto the Breach: A Reply to Timothy Sandefur's
Response
The Mind-Society Spiral
Is "Know It When I See It" Enough?
Reflections on Dead Horses, Semantic Confusion, and Straw
Men
1 1/2 Cheers for Tim's Impetus
Why Doesn't Hayek Answer the Questions That I Feel Are
Important?
A Bit of Packpedaling
Related at Cato
The Ideas and Impact of F. A. Hayek
F. A. Hayek and the Common Law
F. A. Hayek (1899 - 1992)
Bios
About Cato Unbound


About This Issue

Lead Essay
Four Problems with Spontaneous Order by Timothy Sandefur
Response Essays
Four solutions to Sandefur’s Problems by John Hasnas
Liberty between the Lines in a Modernist Age by Daniel Klein
Making Sense of Hayek on Spontaneous Order by Bruce Caldwell
The Conversation
Unmade, Amoral Orders Composed of Made, Moral Orders? A Response to
John Hasnas by Timothy Sandefur
The Light “Between the Lines” Is Doing All the Work: A Response to Prof. Klein
by Timothy Sandefur
Once More unto the Breach: A Reply to Timothy Sandefur’s Response by John
Hasnas
The Mind-Society Spiral by Daniel Klein
Is “Know It When I See It” Enough? by Timothy Sandefur
Reflections on Dead Horses, Semantic Confusion, and Straw Men by John
Hasnas
1 1/2 Cheers for Tim’s Impetus by Daniel Klein
Why Doesn’t Hayek Answer the Questions That I Feel Are Important? by Bruce
Caldwell
A Bit of Backpedaling by John Hasnas
Related at Cato
Book Forum: The Ideas and Impact of F. A. Hayek, February 2, 2004, featuring
Bruce Caldwell
Article: F. A. Hayek and the Common Law by Ronald Hamowy, Cato Journal,
Vol. 23, No. 2 (Fall 2003).
Biography: The late Friedrich Hayek’s page at the Cato Institute; Hayek was a
Distinguished Senior Fellow.
Bios
Timothy Sandefur
Daniel Klein
Bruce Cadwell
John Hasnas
 About Cato Unbound

December 2009: Hayek and the Common Law

Among non-economists, Nobel laureate Friedrich A. Hayek is
perhaps best known for two things: his seminal book The Road to
Serfdom, and his defense of the theory of spontaneous order. Briefly
stated, the theory of spontaneous order holds that many of the most
useful social institutions are the product of human action, but not of
human design.

Examples abound. No one individual or committee sets market

prices; those who have tried have always failed. No designer created
the English language, and artificial languages have never met with
any great success. Scientific discovery through repeated experiment
causes truth to emerge, but scientific truth is not forged through
rationalistic design. Instead, it is a product of many uncoordinated
searches, serendipity, and replication across the scientific
community.

Arguably the greatest example of spontaneous order outside the

market, however, is the development of the common law, a legal
tradition that proceeds incrementally, case by case, privileging
precedent and continuity. No one individual or committee created the
common law. Indeed, it is said that the common law is discovered by
judges rather than created by legislatures. The common law is
robust for the same profound reason that markets and language are
robust, and each therefore deserves great deference.

Yet, argues lead essayist Timothy Sandefur, there are problems

with the concept of spontaneous order, especially as it regards the
law. As virtually everyone acknowledges, the mere fact that a law
has been in force for a very long time doesn’t necessarily prove its
rightness. Hayek, too, allowed that the common law may change
over time, and he attempted to integrate this notion into the theory of
spontaneous order. Yet there are clearly some changes that are not
properly a part of spontaneous order. How do we separate the good
changes from the bad? We must seemingly reach outside the
spontaneous order for our normative supports.
Commenting on Sandefur’s essay will be legal and business scholar
John Hasnas of Georgetown University, economist Daniel Klein of
George Mason University, and economic historian and Hayek
biographer Bruce Caldwell of Duke University.

As always, Cato Unbound readers are encouraged to take up our

themes, and enter into the conversation on their own websites and
blogs, or on other venues. Trackbacks are enabled. Cato Unbound
will search the web for the best commentary on our monthly topic,
and, with permission, may publish it alongside our invited
contributors. We also welcome your letters. (Send them to
wwilkinson at cato.org.)


Lead Essay
Four Problems with Spontaneous Order
In his lead essay, lawyer and legal theorist Timothy Sandefur
proposes that Friedrich Hayek's understanding of law and justice is
flawed: Spontaneous order may be a descriptively accurate concept,
but it has little or no effective normative content. Depending on how
one chooses to focus, those who wish to reform a spontaneous
order are either constructive rationalists -- thus, outside the order,
and presumptively bad -- or they are manifestations of the
spontaneous order itself, which changes over time. He suggests that
the Hayekian approach to legal reform is simply be careful, and that
this is not terribly helpful advice.

Among scholars of freedom, few are more admired than the

polymathic Friedrich Hayek, who helped articulate the case for liberty
in economics, law, politics, and other disciplines. Perhaps his most
famous idea is that social mores or legal rules can emerge as a
result of particular individuals acting on local knowledge -- and
therefore that economic and political order need not be designed and
implemented by conscious planning. Indeed, economic and political
orders are so complex, and involve so much scattered and
inarticulable information, that no central authority could harness the
details required to design them. In a free society, countless
individuals managing their own affairs end up cooperating without
realizing it, thanks to the choices they make based on their limited
information. The whole institution grows from the bottom up. This
"spontaneous order," Hayek argued, is a dynamic discovery process,
in which people can experiment with new social mores, or new laws,
just as they might with new technologies. As he put it in The
Constitution of Liberty, "[t]he existence of individuals and groups
simultaneously observing partially different rules provides the
opportunity for the selection of more effective ones."

Hayek contrasted this with "rational constructivism": that is, the effort
to construct an order through top-down planning that coordinates
individual actions toward some chosen end. Government
bureaucracies and socialized industries are constructed orders,
which Hayek defined as "relatively simple, or at least necessarily
confined to such moderate degrees of complexity as the maker can
still survey... usually concrete, in the sense... that their existence can
be intuitively perceived by inspection, and... they invariably do (or at
one time did) serve a purpose of the maker."

This is a useful observation, so far as it goes. Unfortunately, Hayek

went further. In Law, Legislation and Liberty, he used this
observation as the foundation for a critique of constructivism. In
short, Hayek argues that we ought to prefer spontaneously
generated orders and resist efforts to construct and impose
intentional and purposive institutions. But, as I explain more
thoroughly in "Some Problems with Spontaneous Order," there are
four major problems with his argument: (1) The difference between
constructed and spontaneous orders is not a difference in principle.
Indeed, the difference turns out to depend solely on the observer’s
choice of perspective. This means that (2) while spontaneous order
is descriptively useful, it provides no basis for a normative critique of
constructivism, just as the concept of evolution by natural selection
cannot tell us whether a lion should eat any particular antelope. In
fact, (3) unless all orders that persist are ipso facto just, then the
concept of spontaneous order gives us no basis for recognizing an
unjust order. Hayek tried to resolve this problem by incorporating
intentional planning into the process of spontaneous order, but this
meant that (4) remedying injustice requires "rational constructivism,"
which leads us back to problem (1).

1. The Difference Between Spontaneous and Constructed

Orders

The distinction between spontaneous and constructed orders

dissolves upon rigorous inspection. Any action by any individual or
firm in the market looks on close-up view like a constructed, artificial
order. But take three steps back, and from a distance the same
action looks like part of the bustling, experimental give and take of
spontaneous order.

If a company adopts a new policy for handling paperwork or

manufacturing some product, that policy -- the brainchild of an
executive who decided to impose the policy from the top down -- is
surely a constructed order; it is "relatively simple," "concrete," and
"serve[s] a purpose of the maker." But from the perspective of the
economy as a whole, that same policy is just a single experimental
new idea, a crucial ingredient in spontaneous order: "[t]he existence
of individuals and groups simultaneously observing partially different
rules provides the opportunity for the selection of more effective
ones."

Consider an exchange between Judge Richard Posner and

economist Donald Boureaux in the NYU Journal of Law and Liberty.
Posner commented that Hayek’s belief in spontaneous order was "in
considerable tension with his great admiration for the Constitution of
the United States," because the Constitution was a written plan of
government formulated by experts -- a constructed order. But
Boudreaux disagreed: the Constitution’s authors "did not seek to
create all or even most law de novo," or "to replace wholesale one
set of laws with another." Rather, they incorporated "[t]he evolved
common law rooted in English experience and modified by more
recent experience in the colonies."

Both Posner and Boudreaux were right. The Constitution was

rationally constructed, if looked at up close -- but it was also the
product of a spontaneous order, seen in the context of the history of
Anglo-American common law. One cannot distinguish between
spontaneous and constructed orders on the basis that Boudreaux
suggests -- that spontaneous orders incorporate the ideas learned
from past experience -- because no constructed order is entirely
brand new. "No system of law," Hayek admits, "has ever been
designed as a whole, and even the various attempts at codification
could do no more than systematize an existing body of law, and in
doing so supplement it or eliminate inconsistencies." Even the most
sophisticated bureaucratic, top-down plan is going to incorporate
lessons learned through historical experience. In other words, the
"partially different rules" that compete in the spontaneous order are
necessarily "constructed" ones. And because Hayek incorporates
these elements of constructivism into his account of spontaneous
order, he ends up making it impossible to discriminate between a
spontaneous and a constructed order.

Hayek exploited his concept’s flexibility when he said that "deliberate

efforts... [to] improve the existing system by laying down new rules"
were actually consistent with the principle of spontaneous order
because "it remains true that the system of rules as a whole does
not owe its structure to the design" of planners. The phrase "as a
whole" is doing all the work here. As a whole, no order is
constructed. The term "as a whole" here represents Hayek taking a
convenient and unwarranted step back to look at the system through
a lens so wide that anything, no matter how rationally constructed,
can still qualify as part of the spontaneous order.

This trick renders the distinction between spontaneous and

constructed order trivial, or, worse, rhetorical. If the observer draws a
circle narrowly around a single transaction, a single reform proposal,
a single firm, a single state, or a single nation, then the order
appears constructed. But take a step back and look at the
transaction in the context of the multitude of interactions between
individuals and firms -- "the system of rules as a whole" -- and even
the most radical, state-implemented reform is just a tiny experimental
particle in the flux of spontaneous order. The difference between
constructed and spontaneous orders, in fact, begins to look more like
the difference between microevolution and macroevolution in
biology. Whatever use that distinction might have in some contexts, it
is not a distinction in principle: all evolution is microevolution;
macroevolution is just an accumulation of microevolutionary changes
over the course of aeons.

2. The Normative Critique of Constructed Order

If there’s no conceptual distinction between constructed and
spontaneous order, there can be no foundation for a normative
critique of constructed orders. It is true that order can emerge from
particular actions, but that is not a good argument against
implementing planned or constructed approaches to social problems.
If a bureaucrat proposes a top-down, rational plan for economic or
social organization, the Hayekian cannot object that doing so will
disrupt the development of spontaneous order; indeed, that plan is a
product of the spontaneous order -- and, of course, new
spontaneous orders will grow up around it once implemented.

Hayek recognized that spontaneous orders generally include, or are

made up of, constructed elements: a spontaneous order, he wrote, is
a process "in the course of which spontaneous growth of customs
and deliberate improvements of the particulars of an existing system
have constantly interacted." But the boundaries of this interaction are
so imprecise that the idea of spontaneous order loses all strength as
a basis for criticizing rational constructivism.

Consider, for example, an architect designing a college campus, who

wants to decide where to put the sidewalks between the buildings.
The "constructivist" solution is to draw lines where the students
"ought" to walk, and put sidewalks there. But a Hayekian advises the
architect to wait a year and see where the students choose to walk,
and then put the sidewalks there, products of a spontaneous order.
The architect takes this advice, but a year later, when he goes to
install the sidewalks, he meets his Hayekian friend again, who urges
him to stop and wait another year! After all, the student body has
changed in the interim; rooms were reassigned, and various other
factors have reordered the students’ preferences. To put in sidewalks
now would be to handicap the dynamic, ever-changing spontaneous
order. Every year, he is met with the same advice! Spontaneous
orders always evolve, and whenever anyone tries to implement a
"discovered" rule, the same objection applies. (Of course, Hayek
recognized that discovered rules must eventually be implemented,
but as we’ll see, his response to this creates even more problems.)
Hayek seems to argue that lawyers and economists ought only to
aim at improving the process of spontaneous order, rather than
focusing on results: "we can preserve an order of such complexity
not by the method of directing the members, but only indirectly by
enforcing and improving the rules conducive to the formation of a
spontaneous order." But everything is "conducive to the formation of
a spontaneous order" in one way or another, including coercive
institutions. The many accountants who make a living helping fill out
tax forms are testament to this.

If spontaneous order incorporates constructed or coercive elements,

then it cannot serve as a basis for criticizing constructivism or
coercion. As I said before, biological evolution is a spontaneous
order process, but it cannot tell any particular lion whether or not to
eat any particular antelope, because either way, that choice is
incorporated into the process of evolution. Likewise, spontaneous
order can give us no guidance about whether any particular
rationally constructed plan should or should not be implemented.

3. Recognizing Injustice

Hayek does not fall into the Panglossian trap of arguing that
whatever rules happen to persist through social evolution are ipso
facto good (although he comes close at times). But his recognition
that there may be "occasions when it is recognized that some hereto
accepted rules are unjust in the light of more general principles of
justice" raises a new problem: how does one recognize unjust rules?
Where do we get the "general principles of justice" against which to
compare the existing order? Hayek’s antirationalism leads him to
reject the idea of "construct[ing] social rules by deduction from
explicit premises." Indeed, he goes further: the individual mind is
"itself the product of the same process of evolution to which the
institutions of society are due," and is "embedded in a traditional
impersonal structure of learnt rules" so that "its capacity to order
experience is a replica of cultural patterns which every individual
mind finds given." The process of cultural evolution actually "creates
reason," and philosophy’s "great error" is the idea "that the intuitively
perceived ethical values, divined out of the depth of man’s breast,
[are] immutable and eternal."

But if the mind really is socially constructed, it would be untenable for

the individual to criticize his social order by comparing it to some
abstract notion of justice. As Chandran Kukathas puts it, Hayek’s
premise would make it impossible to "stand outside the evolutionary
process to evaluate different states of affairs that rational action
might lead to."

So despite Hayek’s (inconsistent) invocation of the "indispensable"

necessity of "an ideal picture of a society which may not be wholly
achievable," it is not possible for the citizen of a spontaneous order
to take steps toward reform without violating his precepts. The bulk
of Hayek’s writing is devoted to attacking the constructivist impulse
to impose designed, purposive schemes for making society conform
to abstract ideals. Laws, he contends, should be purpose-
independent -- which means that, just as it is "nonsensical to judge
the concrete results of competition by some preconception of the
products it ‘ought’ to bring forth," it is equally nonsensical to judge
the concrete results of a rule by some preconception of the
outcomes it "ought" to produce. An undesirable particular outcome
cannot signal the need to revise the rule that produced it.

The only way Hayek can include social reform in his theory is to
devise some account of "immanent" social criticism -- criticism that
comes not from philosophical abstractions, but is endogenous, and
generated by the process of spontaneous order itself. This
immediately suggests to Hayek that rules can and should be
reformed when they prove inconsistent with other rules. This is the
only basis for social criticism that Hayek seriously offers; he makes
no effort to explain the origin or basis of the other values he
sometimes mentions, like non-coercion. He chooses consistency
because it seems more neutral, internal, and process-oriented than
abstractions like justice.

But in fact it isn’t. Consistency is not itself an immanent or

endogenous value. Inconsistency, like anything else, may very well
be perfectly tolerable to members of society. In the days of slavery,
white southerners were happy to live in a system that treated blacks
differently, and when necessary, antebellum judges often resolved
inconsistencies in the law of slavery by simply declaring slaves to be
sui generis, subject to unique rules (which does formally eliminate
the logical consistency) or by treating them more consistently like
property. Consistency is not an adequate substitute for justice.

Yet Hayek believes that justice "depends on the requirements of an

existing order to which we are committed." Why should one be
"committed" to that existing order? And, if we should be, why we
should one ever seek to reform the existing order by eliminating
inconsistencies that might actually strengthen it in ways we cannot
understand? At most, Hayek’s advice to reformers is "be careful" --
but that cannot serve as a meaningful guide to action in any
particular situation.

4. Reforming Injustice

Hayek’s search for an "immanent" social reform is handicapped even

more by his reverence for tradition. If we ought to "submi[t] to
undesigned rules and conventions whose significance and
importance we largely do not understand," how are we to tell
whether an inconsistency in the rules is real or merely apparent, or
whether it ought to be eliminated or retained? Idealistic youths in the
1960s might have thought segregation inconsistent and senseless,
but if they were counseled to revere conventions whose significance
they could not understand, they would not have become freedom
riders. Only abstract notions of justice, derived not from mere
experience, but by "rationalistic" thinking, can lead to reform of long-
standing, traditional injustices.

Hayek does try to incorporate this rationalistic reform into his

account of spontaneous order, but only at the cost of stretching that
conception so widely as to encompass any state of affairs, and thus
render the observation trivial, as noted in part I above. To again
quote Kukathas, "if ‘reason’ must be viewed as merely an aspect of
the development of social order...not only does it become impossible
to distinguish spontaneous processes from constructed
organizations, but the very idea of criticism and social reform
becomes illusory."

In Law, Legislation, And Liberty, Hayek struggles and fails to explain

how injustice can be eliminated consistently with respect for
spontaneous order. He argues that judges should reform faulty rules
through "piecemeal tinkering," but because there is no principled
distinction between spontaneous and constructed orders, it is also
impossible to distinguish between the rational constructivism that
Hayek attacks and the "piecemeal tinkering" he defends.

Consider Lawrence v. Texas, the U.S. Supreme Court decision

striking down a Texas law against private, consensual homosexual
sex between adults. Many states had such laws, and they were
nothing new. Moral condemnation of homosexuality is an ancient
custom, a product of spontaneous order, the purpose of which many
cannot justify or understand -- it is, in Hayek’s words, "part of a moral
tradition of the community, a common ideal shared and
unquestioningly accepted by the majority." For the Court to declare
those laws unconstitutional based on rationalistic individualism was
surely a radical reworking of the social order! Unsurprisingly,
conservatives have employed Hayek’s arguments in criticizing courts
that rule in favor of gay rights.

But on the other hand, many Americans regarded the Texas law as
(in the words of one justice) "uncommonly silly," and such laws seem
to have been seldom enforced. The majority opinion in Lawrence
forcefully marshaled precedent and moral and political arguments
accepted by many people to conclude that such laws contradict
Constitutional protections for individual liberty. Indeed, the justices
made a strong argument that they were simply making the law more
consistent with fundamental American values -- just as Hayek
recommended when he wrote that judges should "fill" in legal "gaps"
by "appeal[ing] to yet unarticulated principles" that are "required by
the rationale of the existing order," and are "likely to receive general
consent." Judges, he writes, should overthrow existing rules "if they
are in conflict with the general sense of justice." Unsurprisingly,
Hayekian arguments have also been used to defend judicial
expansions of gay rights.

So was Lawrence a major rationalistic overhaul of American law, or

was it just a piecemeal, immanent change? Once again, it’s all a
matter of perspective.

Conclusion

Rules, Hayek tells us,

will in their first instance be the product of spontaneous growth,

[but] their gradual perfection will require the deliberate efforts of
judges (or others learned in the law) who will improve the
existing system by laying down new rules.... Yet it remains still
true that the system of rules as a whole does not owe its
structure to the design of either judges or legislatures. It is the
outcome of a process of evolution in the course of which
spontaneous growth of customs and deliberate improvements of
the particulars of an existing system have constantly interacted.


Response Essays
Four Solutions to Sandefur's Problem
In his response essay, John Hasnas offers solutions to Sandefur's
problems. He suggests that genuine spontaneous orders can be
recognized as having no final decision makers, and hence as
recognizing a multitude of individual choices. Constructed orders
have a final decision maker, and do not respect individual choice.
The normative benefits of a spontaneous order are therefore clear: It
offers a greater scope for peaceful cooperation, while tending to
reduce coercion incrementally. Still, Hasnas admits, spontaneous
orders will always be riddled with injustice, in part owing to our own
limited knowledge and virtue. He suggests that one key missing
insight helps rescue much of Hayekian legal thought: the notion that
laws, too, respond to market forces.

Timothy Sandefur has produced an interesting and thought

provoking essay on Friedrich Hayek’s conception of spontaneous
order. I have a slight quibble with his title, “Four Problems with
Spontaneous Order,” however. On my reading, it appears that
Sandefur is discussing two problems with spontaneous order and
two problems with Hayek’s jurisprudential philosophy. In my
judgment, Sandefur’s problems with the conception of spontaneous
order are rather easily resolved. In contrast, Sandefur’s objections to
Hayek’s jurisprudence are well-taken, but nevertheless are ultimately
unimportant because Hayek’s basic jurisprudential approach can be
salvaged from Hayek’s own errors.

Problem 1: The Difference between Spontaneous and

Constructed Orders

Sandefur argues that there is no principled distinction between

spontaneous and constructed orders. He contends that,

The distinction between spontaneous and constructed orders

dissolves upon rigorous inspection. Any action by any individual
or firm in the market looks on close-up view like a constructed,
 artificial order. But take three steps back, and from a distance
the same action looks like part of the bustling, experimental give
and take of spontaneous order. . .

If the observer draws a circle narrowly around a single

transaction, a single reform proposal, a single firm, a single
state, or a single nation, then the order appears constructed. But
take a step back and look at the transaction in the context of the
multitude of interactions between individuals and firms — “the
system of rules as a whole” — and even the most radical, state-
implemented reform is just a tiny experimental particle in the flux
of spontaneous order.

Now, I may be missing something, but I would have thought the

principled distinction between constructed and spontaneous orders
was patent — constructed orders have a designated final decision
maker; spontaneous orders do not. A single firm or state may consist
of many independently functioning parts, but there is always some
person or group of persons authorized to decide how the firm or
state will act as a collective entity. A spontaneous order has no such
centralized, collective decision maker. This is precisely how we
distinguish a market from a firm or system of customary/common law
from legislation. Spontaneous orders are evolving systems. What
makes the state the state is its power to stop evolution. In short,
spontaneous orders are systems of individual choice. Constructed
orders are systems in which there is an official organ of collective
choice.

If there is anything more to this problem, I am blind to it.

Spontaneous orders are the product of human action but not human
design; constructed orders are the product of human design. That’s
about it. The former implies the absence of a conscious final
decision maker; the latter implies its presence.

Problem 2: The Normative Critique of Constructed Orders

The solution to the first problem pretty much takes care of the
second as well. Sandefur argues, “If there’s no conceptual distinction
between constructed and spontaneous order, there can be no
foundation for a normative critique of constructed orders.” Because
there is a conceptual distinction between constructed and
spontaneous order, the consequent of Sandefur’s conditional does
not follow.

However, this leaves open the question of whether there actually is a

good ground for criticizing a constructed order qua constructed
order. As Sandefur points out, “It is true that order can emerge from
particular actions, but that is not a good argument against
implementing planned or constructed approaches to social
problems.” Why prefer a spontaneous ordering process to a
constructed one?

To answer this question — and to avoid running headlong into

Hume’s is-ought problem — one must show that spontaneous orders
advance a legitimate moral value more effectively than do
constructed orders. They do. That value is peaceful cooperation.[1]

It is not a coincidence that what Hayek termed the rules of just order
— purpose-independent, neutral, universally-applicable rules[2] —
evolved through customary/common law processes while almost all
the rules designed to exploit or oppress others originated in
legislation. The essential characteristic of spontaneous orders — the
absence of a conscious final decision maker — means that the rules
of the system are always subject to re-evaluation. Rules that are
regarded as unsatisfactory by any significant portion of the
population, such as those that privilege the interests of some groups
over others or otherwise work harsh or unfair results, stimulate
increased conflict. This gives rise to increased litigation, which in turn
increases the opportunity to try different rules that may be more
productive of peaceful interaction. In contrast, rules that facilitate
peaceful and cooperative human interaction — Hayek’s rules of just
conduct — tend to reduce interpersonal conflict. As a result, there is
less litigation, the rules are less frequently challenged, and hence
they tend to survive and become a stable part of the order.
Constructed orders — whose essential characteristic is the existence
of some person or persons invested with the power to make
collective choices for the entire order — function under a different set
of incentives. Even with the best of intentions, the inherent limitations
on human knowledge make it unlikely that the collective decision
makers can accurately identify rules of just conduct in advance of
experience. But the combination of human beings’ limited capacity to
recognize and admit their own mistakes, lobbying by interested
parties, and the effect of basic human prejudices and normative
preconceptions not only makes it difficult to correct any initial errors;
it also makes it much more likely that exploitative or oppressive rules
will become stubbornly entrenched within the order.

Spontaneous orders are normatively superior to constructed orders

because the incentives in spontaneous orders make them relatively
more likely to produce rules that facilitate peaceful cooperation while
the incentives within constructed orders make them relatively more
likely to produce rules that facilitate exploitation and oppression.

Problems 3 and 4: Recognizing and Reforming Injustice

Hayek was a brilliant economist and an innovative political thinker

who graced the world with several wonderfully fertile insights that
continue to bear fruit. Hence, I find it difficult to hold the fact that he
was not the greatest philosopher or legal historian against him.

There is much that is wrong with Hayek’s jurisprudential thought.

Sandefur highlights the difficulties Hayek becomes enmeshed in by
denying any independent grounding for ethics outside of the process
of social evolution and by attempting to make purely formal and
essentially vacuous values such as generality and consistency do
substantive normative work. And this is just the tip of the iceberg.
Hayek also anachronistically reads the twentieth century common
law process back into the past, inaccurately depicting the common
law as a product of judges assimilating new standards into an
existing body of rules. Further, despite his denial of any externally
derived standards of value, Hayek clearly views the preservation of
individual liberty as the proper normative end of the legal system.
Sandefur is quite right to point out that by admitting the necessity of
the “deliberate efforts of judges (or others learned in the law)” to ride
herd on the spontaneous growth of the common law, Hayek
simultaneously and inconsistently treats the common law as both a
spontaneous and a constructed order.[3]

To the extent that Sandefur is criticizing Hayek’s ethical and

jurisprudential theory, I have little disagreement with him. But in
doing so, Sandefur is not identifying problems inherent in the
concept of spontaneous order itself, but in Hayek the economist’s
effort to apply the concept to Anglo-American common law — a field
that, by his own admission,[4] he was not familiar with. Hayek’s
failure in this regard should not trouble us overmuch. He was a
brilliant, original thinker, and it would be uncharitable of us to criticize
him for not doing all of the work himself. I, for one, am glad that he
left something for us to do.

Hayek was unable to consistently apply his insight about

spontaneous order to the law. He was unable to see the law as just
another product of market forces. Like virtually everyone of his
generation and, for that matter, like virtually everyone today, he saw
the law as a unique monopoly, necessarily separate and apart from
the market for which it supplied the rules of the game. His belief in
the absolute need for a definite set of rules to undergird the market
process — his rules of just conduct — made it impossible for him to
treat the law as a truly spontaneous order. As a result, he spent
much of Law, Legislation and Liberty searching for the square circle
— a spontaneous order in which certain human beings were
authorized to make collective choices for the entire order.

We, as Hayek’s heirs, however, need not fall into the same trap. I
have no difficulty treating ethics as an independently grounded
philosophical discipline rather than an inevitable product of social
evolution. This provides me, and anyone else, with an Archimedean
fixed point on which to stand to criticize any of the rules of a
spontaneously evolving legal order as unjust and to call for the
reform of those rules.

And indeed, there will be nothing surprising about the continual

existence of such criticism. For it is in the nature of a spontaneous
order to be riddled with injustice at any point in time. One cannot
defend a spontaneous legal order on the ground that it will deliver
the perfectly just society. The defense of a spontaneous legal order
derives from the Hayekian recognition that limitations on human
beings’ knowledge and virtue makes the realization of the perfectly
just society impossible, and that the best we can do is subscribe to a
flawed but self-correcting process that promises continual marginal
improvement over time.

When we appreciate that the defining characteristic of a

spontaneous order is the absence of a conscious collective decision
maker, it becomes clear that there is nothing inconsistent about
recognizing injustice and advocating for reform within a spontaneous
legal order. In fact, such advocacy is essential to the proper
functioning of the system. After all, a spontaneous order is nothing
more than myriad individuals pursuing their individual plans in an
environment that allows order to develop without an overarching
human intelligence. It is the input of autonomously conceived
individual plans and values that drives the system forward.

All we need do to correct Hayek’s mistakes is relinquish the belief

that law is a unique realm standing outside of the market that must
be consciously regulated to ensure the production of the proper rules
of just conduct. I understand that this is not an easy thing to do. The
allure of the constructed legal order is almost irresistibly enticing. It
offers us the prospect of the just society as an end state that can be
reached rather than as a remote limit that can only be approached
incrementally. Nevertheless, it is a siren’s song luring us toward
disaster on the rocks of the unanticipated consequences, rent-
seeking, and venial power struggles that always accompany the
existence of a mechanism for collective choice. In the end, the
essence of the argument for a spontaneous legal order is, perhaps
fittingly, the economic insight that the perfect is the enemy of the
good.

[1] I have defended this claim at greater length elsewhere. See John
Hasnas, “Toward a Theory of Empirical Natural Rights,” Social
Philosophy and Policy 22:111, 140-42 (2005).

[2] See Friedrich A. Hayek, Law, Legislation, and Liberty, vol 1, pp

85-86 (1973).

[3] I have treated this subject at length elsewhere. See John Hasnas,
“Hayek, the Common Law, and Fluid Drive,” New York University
Journal of Law & Liberty 1:79 (2005).

[4] See Friedrich A. Hayek, Law, Legislation, and Liberty, vol 1, p 116
(1973).


The Conversation
Unmade, Amoral Orders Composed of Made, Moral
orders? A Response to John Hasnas

I want to thank Professor Hasnas for so eloquently describing my

crucial point: Hayek’s critique of economic or political planning falls
short because he "den[ies] any independent grounding for ethics
outside of the process of social evolution and... attempt[s] to make
purely formal and essentially vacuous values such as generality and
consistency do substantive normative work." Precisely. Hayek’s
observations about spontaneous order are useful and important,
particularly to counteract some people’s hasty assumption that
economic or legal design requires a designer. But that observation
must be, so to speak, part of this complete breakfast. Spontaneity
itself is not enough; Hayek’s observations must be supplemented by
a philosophically rigorous account of justice and human values. But,
of course, once we appeal to such values, and use them as "an
Archimedean fixed point on which to stand to criticize any of the
rules of a spontaneously evolving legal order as unjust and to call for
the reform of those rules," what we are doing is rational
constructivism. And Hayek’s descriptive account begins to fall apart
when he tries to incorporate this into the process of spontaneous
order. He can do so only by diluting the distinctions between
spontaneous and constructed orders in such a way that it depends
entirely on the observer’s point of view; then it means nothing and
everything, and provides no foundation for a normative critique of
rational constructivism.

I think a far more useful distinction than Hayek’s is offered by Randy

Barnett, who, building on Hayek’s work in The Structure of Liberty,
distinguishes between "centralized" and "decentralized" orders, and
bases that distinction on the use of coercion. Hayek did not use this
criterion, and I think for two reasons. First, because his definition of
coercion was notoriously feeble, and second, because although he
insisted on a principled, even "dogmatic" opposition to the use of
coercion, such a principle is not "immanent" -- it derives, not from the
imperatives of spontaneous order itself, but from the kind of abstract
rationalism that Hayek goes to such lengths to criticize. But Hayek
gives no real reason for embracing non-coercion[1]; in his system it
hangs arbitrarily, like a skyhook, from nothing.

2.

Where I differ from Prof. Hasnas is that I continue to believe that

Hayek has given insufficient ground for distinguishing a constructed
from a spontaneous order. Indeed, the basic problem is that Hayek
incorporates constructed orders into his definition of spontaneous
orders, resulting in a sort of logical nesting doll or fun-house mirror in
which any action can qualify as constructed or spontaneous
depending on how one frames the issue.

Constructed orders, writes Hasnas, "have a designated final decision

maker; spontaneous orders do not." At first this looks like a good
dividing line, but on closer inspection it really isn’t. Consider: Hasnas
is not contending that only those orders with a single decision maker
-- say, the CEO at a corporation -- qualify as constructed orders.
Surely an order where final decisions are made by a committee are
constructed. And, really, the final decisions aren’t made by the CEO,
since he only exercises the authority conferred by the board of
directors. Of course, the board of directors isn’t really the final
decision maker either. The final, final decision is made by the
shareholders who elect the board -- they are the ones who
“authorize” the board to authorize the CEO to decide how the firm
will act. And yet... the shareholders themselves also aren’t really the
final decision maker, since the makeup of the shareholding
population is determined by the purchase and sale of stock, the real
final decision is made by the stock market in response to the
company’s sales figures. So the "final decider" that makes the
corporation a "constructed order" is really... millions of consumers?

But we can just as easily reverse the equation. The actions of the
corporate officers are really just part of the spontaneous order. The
board of directors or the CEO, after all, act only in response to the
information that comes to them from individual transactions (stock
prices, the cost of raw materials and capital goods, and so forth); all
they do is to make single decisions based on local information -- in
this sense, the decisions they make are only individual components
of the spontaneous market process in exactly the same way that my
decision to buy a coffee at Starbucks is only a single transaction
based on my local information. In both cases, there’s a final decision
maker -- and yet in both cases, that decision maker is only making a
single decision based on local information and preferences. All
decisions are really just tiny drops in the sea of spontaneous order.
So, once again, we find that the distinction between spontaneous
and constructed order does not depend on anything that takes place
within the scope of our observation -- it depends only on how broadly
we draw the circle of our observation. All transactions are
simultaneously "spontaneous" and "constructed."

This is not just a parlor game to play at particularly nerdy libertarian

Christmas parties. The point is that terms like "decision maker,"
"authorized," and "decision" are not clear criteria. Who is the "final
decision maker" in implementing a national health care plan? Such a
plan must pass by two separate houses of Congress after months of
negotiation by hundreds or thousands of participants; it must be
signed by the president after consultation with teams of advisors and
lobbyists; and, probably, it will be tested in the Supreme Court after
review by teams of lawyers and lower court judges. The individuals
who comprise these branches of government do not act for
themselves; they rely on the advice of countless others, and respond
to constituencies with significant political influence. None of them
makes the "final" decision, and even then their decision is subject to
change by voters. All of these officials are "authorized" to act (if at
all) by millions of voters. None of these is a "designated final
decision maker." So a centralized government-controlled health care
system isn’t a constructed order. But that hardly seems right.

Hasnas continues: "A single firm or state may consist of many

independently functioning parts, but there is always some person or
group of persons authorized to decide how the firm or state will act
as a collective entity." This is actually not true, as we have seen --
even dictatorships have multiple heads of power who exercise
authority on behalf of others who have power to limit them. (Dictators
can be overthrown, after all.) But aside from this, Prof. Hasnas is
unable to avoid the problem that by drawing the circle as broadly or
narrowly as we wish, we can define the exact same action or entity
as a constructed or spontaneous.

Consider Wal-Mart, the subject of a very interesting EconTalk

podcast some months ago. Although Wal-Mart has a central decision
making agency and a CEO, the company leaves many important
decisions entirely to the discretion of store managers. This includes
not only hiring and promotion decisions, but even decisions about
discounts and sales. How do we apply the label "constructed" or
"spontaneous" here? In one sense, it’s a constructed order -- Wal-
Mart’s internal "hands-off" policy was intentionally created by
corporate staff who are authorized to change it tomorrow if they
choose. And yet, in another sense, Wal-Mart doesn’t act "as a
collective entity": there is no central decision-maker.

This point is critical in one sense: Wal-Mart’s policy of leaving hiring

and promotion decisions to local managers is the subject of an
ongoing class-action discrimination lawsuit -- the largest class-action
lawsuit in American history. One of the central questions in the case
is whether Wal-Mart’s hands-off approach qualifies as a corporate
"policy" or not. (You can read my brief in that case here.)

More important to my point is that Hayek explicitly contemplates

spontaneous order as including -- indeed, depending on --
constructed orders. In his essay "Kinds of Order in Society," Hayek
wrestled with some of the problems I’ve been talking about, and
concluded that spontaneous order is the kind of order that arises
between constructed orders interacting amongst themselves. This is
sensible: all human action is intentional at some level, and the
spontaneous order of the overall market is populated by the
“constructed” orders that are the conscious and deliberate
transactions between particular individuals. But if this is the case, it’s
very easy to rationalize any particular act of rational constructivism
by simply taking a broader view of the overall order. If one institution
appears to be a planned, constructed order on up-close examination,
just take three steps back and suddenly it’s just a part of an overall
spontaneous order and therefore not only legitimate on Hayek’s
criteria, but actually praiseworthy -- just the kind of social
experimentation that progress depends on.

So spontaneous order seems rather like the rather hapless God in

the Bette Midler song "From a Distance." In that song, God is
"watching us from a distance," and, indeed, from such a distance
that the Earth looks just dandy:

From a distance, there is harmony And it echoes through the

land.... From a distance we all have enough And no one is in
need, And there are no guns, no bombs, and no disease, No
hungry mouths to feed. From a distance we are instruments
Marching in a common band...

In other words, if you take a broad enough view, even the worst
conflicts and misery look like nothing more than the necessary
ingredients in the whole complex spontaneous order. But a God who
is so far away as to not see guns, bombs, disease, and hunger,
seems rather negligent. In the same way, if we take such a broad
view of the miseries of the world, we run the risk of falling into just
the sort of Panglossian attitude that shrugs at humanity’s worst
injustices.

Taking this perspective, a libertarian who objects to, say, the

implementation of a statewide government-organized and
government-run health care plan would be advised to stop, and
instead look upon it from a distance. It’s just a single state running a
single experiment in the overall flux of the national or world-wide
market for medical services -- such experiments are not only
perfectly acceptable by Hayekian standards, but actually crucial
ingredients in social evolution! "The existence of individuals and
groups simultaneously observing partially different rules provides the
opportunity for the selection of more effective ones." And yet on the
other hand, any attempt to free the health care market is also an
experiment in the overall spontaneous order. Dr. Pangloss’s
philosophy is not just morally vacuous, it’s also paralyzing: it can no
more advise us whether to act or not to act than the concept of
evolution can tell any particular lion to eat any particular antelope.

3.

The fuzziness of the boundary dividing constructed and spontaneous

orders throws into confusion any argument that spontaneous orders
have better consequences than constructed ones. Prof. Hasnas
writes,

the rules of just order -- purpose-independent, neutral,

universally applicable rules -- evolved through
customary/common law processes while almost all the rules
designed to exploit or oppress others originated in legislation.

I would strongly disagree with this. To take only the limited example
of race relations in the United States, one finds that rules designed
to exploit or oppress minorities usually did not begin in legislation but
were codified in legislation only after a long and dreadful life as
social prejudices. No law created slavery; indeed, slavery seems like
one of the more obvious examples of a spontaneous order. No
central authority was ever responsible for implementing it or deciding
how it should operate as a collective whole. The abolitionists, by
contrast, were nothing if not rational constructivists. They wanted to
radically redesign society on the basis of their preconceived notions
of justice. And, in fact, the arguments that John Calhoun, George
Fitzhugh, and others of the "positive good" school of slavery
employed against abolitionists were based on anti-rationalism and a
defense of "undesigned rules and conventions whose significance
and importance we largely do not understand." They argued that
abolitionists were ignorant of the complicated details of the "southern
way of life"; that freeing the slaves would impose tremendous
unforeseeable costs; that the heart had reasons the head could not
understand -- indeed, that liberty led to social problems that could
"not have been foreseen and pointed out by any process of a priori
reasoning." This was, Fitzhugh argued, "but another proof of the
fallibility of human sagacity and foresight when attempting to foretell
the operation of new institutions."

The conflict between the supposedly "artificial" contractarian

perspective of liberal rationalism and the static, hierarchical,
"organic" perspective of conservative anti-rationalism has
reverberated in politics since at least the French Revolution -- from
the debate between Paine and Burke to the zivilisation-kultur
dichotomy of pre-war Germany. In the end, I believe there is far more
blood on the hands of the latter. Centralized planning has certainly
racked up a horrible human cost. But what I call the "romance of
gradualism," along with the mystique of loyalty, and the appeals to
caste, race and supernaturalism that are all part of the anti-rationalist
tradition have had and are still having far more wicked
consequences. Hayek is right to be skeptical of reformers, and to be
fair he acknowledged that the spontaneous origin of an order is no
guarantee that the resulting order is just. But his reaction against
rationalism goes much too far toward being reactionary, and his
vague preference for viewing things "from a distance" and obeying
rules whose significance we cannot understand casts a superficial
aura of benevolence over historical scenes that, on closer
inspection, are often brutal, cruel, and hideous. Thank God for
nineteenth century rational constructivists who overthrew the
complex spontaneous orders of slavery![2]

Prof. Hasnas also believes spontaneous orders are preferable

because they are more quickly amended if they go wrong: rules that
"are regarded as unsatisfactory by any significant portion of the
population, such as those that privilege the interests of some groups
over others or otherwise work harsh or unfair results, stimulate
increased conflict," and this "gives rise to increased litigation, which
in turn increases the opportunity to try different rules." There are
three problems with this.

First, it hastily assumes that conflict will give rise to increased

litigation. But unjust rules usually game the system precisely to
prevent such challenges -- such as the rule in nineteenth century
California that barred the Chinese from access to the courts. That
rule was not produced by legislation, but by common law courts
acting exactly as Hayek prescribes: patching holes in existing rules
with refinements inferred from existing rules that will preserve the
existing order, receive general assent, and render the system more
internally consistent.

Second, Prof. Hasnas is simply saying that because bad rules will
lead to bad results, people will try to implement new rules. Obviously
that’s so, but saying "well, it’ll all work out in the end" does nothing to
help those who are suffering here and now. Injustice will end
eventually, but only if we take the steps necessary to end it. And just
as with the architect in my earlier example of the college sidewalks,
any time a person takes a step to end an injustice, the Hayekian will
accuse him of "rational constructivism." Hayek tried to resolve this
problem by incorporating reform into his picture of spontaneous
order, but this does not work. People will "try different rules" only by
constructing them. To describe their doing so as an example of
spontaneous order is to commit the fallacy of petitio principii. But, of
course, that fallacy is unavoidable given the logical fun-house mirror
Hayek has given us. The question at issue is whether spontaneous
orders are preferable to constructed ones, but Hayek holds that
spontaneous orders are and necessarily must be composed of
constructed orders. Pointing to the fact that rational constructivism
can sometimes cure the injustices resulting from spontaneous order,
and then calling such constructed reform part of the spontaneous
process, is simply to beg the question.

Third, we return to the point where we began: the spontaneity of an

order is not sufficient to guide us in making policy choices, either pro
or con. We see this because Prof. Hasnas is forced immediately to
employ normative language that finds no grounding in Hayek’s own
arguments: he refers to rules that produce "harsh" or "unfair results,"
and talks about a "significant" portion of the population. I agree that
such normative criteria must enter the picture at some point, but they
certainly do not originate in spontaneity qua spontaneity. Those
values come from elsewhere, and it is they that give us the ground
for judging the results of -- and reforming -- the spontaneous order.
Indeed, these values are doing all of the real work in Hayek’s
account of social reform. Without accounting for them in some way,
they simply hang in the air like a lifeline, to rescue us whenever
Hayek’s impersonal social forces create something that makes us
uncomfortable. When we tug on that lifeline, we find that the other
end is attached to rational constructivism. Prof. Hasnas began by
referring to "purpose-independent" rules, but within the same
paragraph began looking at the consequences of the rules to judge
whether such rules are "harsh" or "unfair," so that we might try
different ones. This is rational constructivism, and if we incorporate it
into the picture of spontaneous order, all we’re really doing is
stepping back and looking at the "picture as a whole." Yes, "from a
distance," it’s all a spontaneous order.

----- Notes

[1] Actually, in The Constitution of Liberty, Hayek tells us that the

reason coercion is bad is because it "prevents a person from using
his mental powers to the full and consequently making the greatest
contribution that he is capable of to the community." This unpalatably
collectivist justification for liberty directly contradicts the presumption
of liberty that underlies classical liberalism. It also leaves
unanswered the disturbing question: in whose judgment? If service
to the community is the source and justification of individual liberty,
then liberty is really only a privilege given to us by society, and
revocable whenever it fails to serve that end.

[2] Anti-rationalists often point to the French Revolution as the

prototypical example of rational constructivism gone haywire.
There’s no debating that the French Revolution was in many ways a
disaster. But there are two points that must be kept in mind. First, a
Hayekian really has no logical basis for attacking the French
Revolution, since it was presumably just a spontaneous attempt to
reform rules that had proven themselves prone to cause conflict.
Take a look at the Revolution "as a whole" and it’s not a case of
rational constructivism. Second, when assessing the French
Revolution’s cruelties, we must keep in mind how awful the situation
was prior to it. As Mark Twain wrote,

There were two "Reigns of Terror," if we would but remember it

and consider it; the one wrought murder in hot passion, the
other in heartless cold blood; the one lasted mere months, the
other had lasted a thousand years; the one inflicted death upon
ten thousand persons, the other upon a hundred millions; but
our shudders are all for the "horrors" of the minor Terror, the
momentary Terror, so to speak; whereas, what is the horror of
swift death by the axe, compared with lifelong death from
hunger, cold, insult, cruelty, and heart-break? What is swift
death by lightning compared with death by slow fire at the
stake? A city cemetery could contain the coffins filled by that
brief Terror which we have all been so diligently taught to shiver
at and mourn over; but all France could hardly contain the
coffins filled by that older and real Terror -- that unspeakably
bitter and awful Terror which none of us has been taught to see
in its vastness or pity as it deserves.


It appears that Timothy Sandefur disagrees with me. There is

certainly a lot of evidence for this in his response to my first posting.
However, it is not clear to me how much Mr. Sandefur is disagreeing
with me, how much he is disagreeing with Hayek, and how much the
disagreement with either of us derives from a semantic confusion.
Perhaps some distinctions would help clarify matters.

To begin with, I am willing to classify myself as a Hayekian in the

sense that I believe Hayek’s scholarly work to contain several
brilliant and incredibly fruitful insights that both advance our
understanding of how the world works and supply useful premises in
the argument for a free society. I believe his description of
spontaneous order to be among these insights. I am neither a Hayek
scholar — that would be Bruce Caldwell’s role in this exchange —
nor a Hayek disciple — one who believes that Hayek discovered the
unvarnished truth and everything he said needs to be defended.

I myself have criticized Hayek’s jurisprudential thinking and

understanding of the English customary/common process.[1] I
further recognize that Hayek was a rather bad moral philosopher. In
his original essay, Mr. Sandefur points out that Hayek asserts that
moral principles are a product of an evolutionary selection process
while simultaneously and inconsistently employing externally
grounded moral principles to ”correct“ the output of the evolutionary
process and criticize rational constructivism. This is a frequently
made objection to Hayek’s philosophical thought with which I agreed
in my original posting. In addition, I pointed out that Hayek’s
commitment to viewing moral principles as a product of evolution
leads him to call upon purely formal values such as generality and
consistency to do substantive normative work, which they are
incapable of doing. Thus, if there is genuine, substantive
disagreement between Mr. Sandefur and myself, it concerns the
question of whether spontaneous order is a viable concept and
whether there is a principled basis for distinguishing spontaneous
orders from constructed orders.
The next distinction I’d like to draw is that between orders and
actions. The adjectives “spontaneous” and “constructed” are
designed to describe two different types of “orders.” An order is a
systematic arrangement of items of a particular type or with some
common feature or property. A spontaneous order is such an
arrangement that arises without any guiding intelligence. A
constructed order is an arrangement that is intentionally produced a
guiding intelligence. The symmetrical crystalline structure of a
snowflake is an example of a spontaneous order. A set of standing
dominoes arranged to fall in a snowflake pattern when the first one is
knocked over is an example of a constructed order.

These are facile examples of the two types of orders. Why? Because
the type of items being ordered — ice crystals and dominoes — are
inanimate objects with no wills of their own. Such items are not
capable of independent action.

Things become more complex when the items being ordered are
human actions. Human beings have free will and can act
intentionally. The actions of individual human beings are almost
always a product of a guiding intelligence — one’s own. Hence,
individual actions are almost always “constructed.” When the items
being ordered are human actions, what is being created is an order
of intentional (i.e., constructed or planned) actions. Thus, a
spontaneous order of human actions is an ordering of individual
plans that arises without a guiding intelligence to coordinate them,
and a constructed order of human actions is an ordering of individual
plans that is itself a product of a conscious plan.

The development of language and the selection of media of

exchange are often offered as examples of spontaneous order. In
the case of language, individuals intentionally assign meanings to
sounds in their dealings with each other, some of which, through
repeated interaction, gain general acceptance among a particular
community of people, and become a spoken language such as
English. This occurs even though there is no overarching guiding
intelligence making authoritative assignments of meaning to
particular sounds. In the case of media of exchange, individuals
select different items as stores of value, some of which, through
repeated interpersonal transactions gain general acceptance among
a group of people, and become the accepted medium of exchange
such as gold generally or hogsheads of tobacco in early Virginia. Of
course, both language and media of exchange may be consciously
constructed as well, as examples such as Esperanto, Klingonese,
the language created for the new movie Avatar, and various forms of
government-created fiat money demonstrate.

My working definitions of the terms we are considering, then, are as

follows. A spontaneous order of human actions is an ordering of
intentionally undertaken or planned individual actions that occurs
without the conscious coordination of any guiding intelligence. A
constructed order of human actions is an ordering of intentionally
undertaken or planned individual actions that is consciously created
by a guiding intelligence.

With these distinctions in mind, let’s me see if I can identify the

points of disagreement between Mr. Sandefur and myself.

1.

Mr. Sandefur begins his response by stating:

I want to thank Professor Hasnas for so eloquently describing

my crucial point: Hayek’s critique of economic or political
planning falls short because he “den[ies] any independent
grounding for ethics outside of the process of social evolution
and. . . attempt[s] to make purely formal and essentially vacuous
values such as generality and consistency do substantive
normative work.” Precisely. Hayek’s observations about
spontaneous order are useful and important, particularly to
counteract some people’s hasty assumption that economic or
legal design requires a designer. But that observation must be,
so to speak, part of this complete breakfast. Spontaneity itself is
not enough; Hayek’s observations must be supplemented by a
philosophically rigorous account of justice and human values.
These represent points of agreement between us. However, Mr.
Sandefur continues by stating:

But, of course, once we appeal to such values, and use them as

”an Archimedean fixed point on which to stand to criticize any of
the rules of a spontaneously evolving legal order as unjust and
to call for the reform of those rules,“ what we are doing is
rational constructivism.

I do not believe that this statement follows from what precedes it. It
seems to me that in making this assertion, Mr. Sandefur is conflating
constructed orders with constructed actions.

We have already agreed that moral principles are not necessarily a

product of evolutionary forces, and may be derived from externally
grounded, reasoned philosophical positions. Hence, to the extent
that any of us perceive that the results of a spontaneous order within
which we reside diverge from our conception of justice, we have
grounds to criticize them and call for reform. There is a sense in
which one can call this “rational constructivism” since my individual
position is a product of my own conscious rational design. But this is
irrelevant to the question of whether the order within which I make
my appeal to justice is spontaneous or constructed. As noted above,
when we are ordering human actions, we are always ordering the
conscious output of individual human intelligences. The order, as
opposed to the actions of the individuals within it, is a spontaneous
order just in the case there is no conscious human agency endowed
with the authority to make a collective choice. The order is a
constructed one if there is. In a spontaneous order, my rationally
constructed appeal is successful to the extent it is accepted by other
individuals in the order who act upon it. In a constructed order, my
appeal is successful to the extent that it influences the agency of
collective choice to decide in my favor.

Individuals always function on the basis of their “constructed” beliefs

(and sometimes even on the basis of their “rationally constructed”
beliefs), but recognizing this fact does nothing to “dilut[e] the
distinctions between spontaneous and constructed orders in such a
way that it depends entirely on the observer’s point of view; . . .” This
will be a problem only if we hold rigorously to the proposition that
ethics is necessarily a product of the spontaneous order process
itself — a position that both Mr. Sandefur and myself reject.

2.

I will accept some of the blame for Mr. Sandefur’s second

disagreement with me. In my original essay, I carelessly employed
the word ”final“ in describing the essential characteristic of
constructed orders as having “a designated final decision maker.”
This misleadingly suggests that there is some point in time at which
questions are settled and no longer open for review and reform. As
Mr. Sandefur points out, constructed orders can change over time as
well as spontaneous orders. A more felicitous way of expressing my
point would have been to identify the essential characteristic of
constructed orders as “having a human agency authorized to make
collective choices for the entire order.”

An implication of Mr. Sandefur’s observation is that it can make

sense to describe constructed orders as “evolving.” The law of the
United States certainly changes in response to the relative success
of the various political interests group and rent-seekers who operate
within the political sphere. Hence, it is fair to say that the
distinguishing feature of spontaneous and constructed orders is not
the presence of evolution in one and its absence in another. I did not
mean to suggest that it was, but may have inadvertently done so by
employing the term “final.”

The presence of some form of evolution in both spontaneous and

constructed orders does not imply that there is no principled
distinction between them. It may be that the same type of game is
being played in each case — there is competition in both
spontaneous and constructed orders — but they are being played in
different ballparks. Competition in spontaneous orders occurs in the
ballpark of individual choice; competition in constructed orders
occurs in the ballpark of collective choice.
It is important to appreciate that there can be many different social
orders that function at different levels. The question of whether an
order is a spontaneous or constructed order is always relative to the
particular order under consideration, as is the judgment as to which
is more desirable. For example, consider a firm competing in a
market within the United States on the planet Earth. If one focuses
on the firm, the items being ordered are the employees working for
the firm. This is a constructed order because there are identifiable
persons authorized to make collective choices that bind the entire
firm.[2] If one focuses on the market, the items being ordered are the
individuals and firms competing for business. This is a spontaneous
order because the arrangement of the order is determined by the
individual choices of consumers and no one is authorized to
determine who wins and who loses for the entire order.[3] If one
focuses on the government of the United States, the items that are
being ordered are the citizens of the nation. This is a constructed
order because the ordering is done by collective decision-making
processes.[4] If one focuses on the planet Earth, the items that are
being ordered are the nation-states it contains. This is a
spontaneous ordering because there is no agency invested with the
power to make collective decisions for the world.

By zooming in and zooming out, Mr. Sandefur claims to show that

spontaneous orders can be transformed into constructed orders and
vice versa, and hence that there is no principled way of
distinguishing them. I do not think he is doing this. I think he is simply
transcending levels and looking at different orders. The firm is a
constructed order if what is being ordered is its internal components.
Zoom out one level and the firm’s rationally constructed actions are
simply data points in the spontaneous order of the market. Zoom out
another level and you are in a semi-constructed order where the
items being arranged are the actions of the citizens of a nation.
Zoom out once more and the citizens disappear and the items being
arranged are nations-states. Whether one sees a spontaneous or
constructed order changes, but that is because one is looking at
different orders. In each instance, however, there is no difficulty
telling whether the order being observed is a constructed or
spontaneous one. This is why Bruce Caldwell can confidently assert
that he knows a spontaneous order when he sees one.

A final note on this point. Mr. Sandefur and I are in agreement that
spontaneous orders are not desirable merely because they are
spontaneous. My argument for a spontaneous legal order — one in
which the items being ordered are the rules of interpersonal conduct
— is explicitly based on a comparative assessment of the incentives
at work in spontaneous and constructed legal orders. Because the
incentives in a spontaneous legal order tend to favor peaceful
interaction and justice in the long term more than those in
constructed legal orders, which grease the path to exploitation, I
argue for the former. This argument is not generalizable, however. If
the items being ordered are the world’s nation-states, I have reason
to doubt that incentives at work in that system would favor peaceful
interaction more than those in a constructed world order. On this
level, the question whether a spontaneous or constructed order is
preferable is an open one.

3.

This brings me to Mr. Sandefur’s and my final area of disagreement.

He claims to strongly disagree with my assertion that what Hayek
called the rules of just conduct “evolved through customary/common
law processes while almost all the rules designed to exploit or
oppress others originated in legislation.” He offers as evidence
against this the observation that slavery did not arise through
legislation. I confess that the appeal to the example of slavery does
not come as a surprise to me. I purposely employed the word
”almost“ in my assertion advisedly. A spontaneous legal order does
not guarantee and will not supply a completely just legal order. As I
mentioned in my original posting, at any point in time, it will be rife
with injustice. Advocating for a spontaneous legal order entails
abandoning utopian aspirations. In the real world, the relevant
question is always the comparative one: Compared to what? But in
this context, Mr. Sandefur’s example not only is not a refutation of
my assertion, it is strongly supportive of it.
Mr. Sandefur states, “To take only the limited example of race
relations in the United States, one finds that rules designed to exploit
or oppress minorities usually did not begin in legislation but were
codified in legislation only after a long and dreadful life as social
prejudices.” Indeed. When was racial oppression codified in
legislation? When it could no longer be sustained without it.

During the “long and dreadful life as social prejudices” when slavery
was widely considered an acceptable practice, market and
spontaneous ordered legal forces supported it. During that time, I
didn’t notice much legislation enacted to end the exploitation.
However, in the 19th century, when cracks began to appear in the
legal structure upholding the institution of slavery due to the
increasing erosion in people’s belief in its legitimacy, national
legislation such as the Fugitive Slave Act and nationally binding
rulings such as that of the Dred Scott case began to appear to shore
it up. The abolitionists that Mr. Sandefur refers to significantly
influenced public opinion regarding the legitimacy of slavery, but they
were notable for their lack of success on the legislative front where
they were opposed by entrenched political interests that benefited
from slavery’s existence.

Following the Civil War, the legislation that flowed from the
“constructed” legal orders of the states provided an additional
century of racial oppression that was completely unattainable
through market and common law forces. The surest sign of what a
spontaneous order produces can be read off the face of
contemporary legislation. Legislation, the embodiment of collective
choice, is always enacted to achieve what cannot otherwise be
achieved through individual action — in modern terminology, to
correct “market failures.” Jim Crow legislation was enacted for
precisely this reason — to address the difficulty in attaining effective
racial oppression in the realm of individual choice.

A customary/common law spontaneous legal order can contain

unjust or oppressive elements as long as the vast majority of the
relevant community find them morally acceptable. Of course, under
that assumption, there is utterly no prospect that a representative
government will improve the situation through legislation. But as the
consensus in support of the oppressive practices decays, a
spontaneous legal order allows motivated individuals to find ways
around it, and facilitates the gradual liberalization of the order. It is
here that legislation usually makes its appearance as the politically
powerful beneficiaries of the oppressive practice employ the
mechanism of collective choice to oppose the liberalizing aspects of
the spontaneous order. I am glad that the political struggle against
official racial oppression was finally won by the “rational
constructivists” that Mr. Sandefur praises so highly, but that victory
can hardly justify support for the constructed legal order that gave us
the decades of oppression that preceded it.

Mr. Sandefur writes,

Prof. Hasnas is simply saying that because bad rules will lead to bad
results, people will try to implement new rules. Obviously that’s so,
but saying ”well, it’ll all work out in the end“ does nothing to help
those who are suffering here and now. Injustice will end eventually,
but only if we take the steps necessary to end it.

This suggests that he has missed my point entirely. 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.

—-

Notes

[1] See John Hasnas, Hayek, the Common Law, and Fluid Drive,
New York University Journal of Law & Liberty 1:79 (2005).

[2] Mr. Sandefur correctly points out with his Wal-Mart example that
constructed orders can permit decentralization and the formation of
internal markets to some extent, and so can consist of a mixture of
spontaneous orders within a larger constructed order. This is, in fact,
the state of most real-world constructed orders since true totalitarian
control is usually impossible. Nevertheless, the larger order remains
an constructed one, and is easily identifiable as such.

[3] Once again, Mr. Sandefur can rightly point out that there are no
pure laissez-faire markets, and that in the real world large areas of
the market are carved out by government in which winners and
losers are indeed determined by collective choice. But also once
again, there is no difficulty identifying the portion of the market that
remains free as a spontaneous order.

[4] Although, like Wal-Mart, there are large areas that are
consciously permitted to remain free of direct control.


I believe I have made honest use of what I know about the world
in which we live. The reader will have to decide whether he
wants to accept the values in the service of which I have used
that knowledge. — Friedrich Hayek, Preface, The Constitution of
Liberty [1]

In his response to me, Sandefur writes that Hayek’s “arguments ...

just don’t work as a normative critique of economic and legal
planning.” They don’t work as critique of every case of such
planning, but, when we enter into Hayek’s liberal foci (again, The
Distinction, the liberty maxim), they work against much of the statist
folly and misadventure of his day and ours.

Sandefur posits walled communities and pleas for free exit, that
glorious principle. And then asks: “And where does that principle
come from?” Well, it must go way back, but, proximately, it comes
from Sandefur. Sandefur cites system(i) — the nexus and legacies of
the walled communities — and then adds himself (and, accordingly,
the legacies he carries), augmenting system(i) and yielding
system(i+1). No quarrels there. But if you want to do the
spontaneous-vs.-rationalistic thing, you get a spiral — no First
moment, no Last moment. Others put it in terms of circles of “we,”
again a sequence in which each circle gets a subscript.

Sandefur quotes Hayek on the embeddedness of the mind, and

infers Hayek to be saying that “patterns of thought ... cannot stand
outside the system and criticize it.” But speaking of “the system” is
wrongheaded; we need subscripts on “system,” and it is wrong to
infer Hayek to be saying someone cannot stand with at least one
foot outside system(i) and criticize it. Sandefur’s critique is helpful as
caution against some of Hayek’s muddy swirls and dubious
ratiocinations, but not as challenge to his central drift.

In his final paragraph, Sandefur writes, “there is no conceptual

distinction between spontaneous and constructed orders such that
constructed orders are bad and spontaneous orders good.” As a
matter of “every,” that’s correct. But, Tim, when we mind Hayek’s
liberal foci, what about preponderantly?

In most policy conversations, an enlightened view holds that, mostly,

more freedom, good; more coercion, bad. Hayek negotiated a way
up and stood tall for that presumption.

Acknowledgment: I thank Jason Briggeman for valuable feedback.

Note

[1] Friedrich Hayek, Preface, The Constitution of Liberty University of

Chicago Press, 1960, p. 6.


There’s an old joke about libertarians that goes, “How many

libertarians does it take to change a lightbulb?” The answer: “None: if
the lightbulb needed changing, the market would have taken care of
it.” This joke highlights the problem I have with arguments based on
spontaneous order. There’s no doubt that there are such things as
spontaneous orders; they are the unintended patterns that emerge
from the intentional actions of individuals who don’t really give much
thought to the big picture. But the phenomenon of spontaneous
order tells us nothing about how lightbulbs ought to be changed or
not changed, because the only way to change lightbulbs is through
intentional, “constructed” action.

Prof. Hasnas says that “A spontaneous order of human actions is an

ordering of intentionally undertaken or planned individual actions that
occurs without the conscious coordination of any guiding
intelligence.” Exactly. Spontaneous orders arise out of planned,
intentional actions, so the phenomenon of spontaneous order cannot
counsel us against planned, intentional actions. Since constructivism
is a component of spontaneous order, spontaneous order gives us
no traction for a critique of planning.

That’s why the evolution analogy works: evolution is the long-term

order resulting from countless individual actions of animals in the
ecosystem. But we cannot draw normative conclusions from this
descriptive account. Spontaneous orders emerge no matter what
you do. Since spontaneous orders are the unintended “from a
distance” consequences of intentional actions, whatever you do will
result in some sort of big-picture effect that will then be properly
described as a “spontaneous order.” This is true even if what you’re
doing is really, really constructed and planned. That’s what I meant
by my example of the accounting firms that do people’s taxes for
them. Even if we assume the IRS code is a constructed order, it has
still given rise to a spontaneous order of incredible complexity —
everything from accounting firms to those people who sell
refreshments to folks in line at the post office on April 15! Even
totalitarian polities will generate spontaneous orders. Not long ago, I
heard a refugee from the Soviet Union say that one difficulty of
adjusting to life in the United States was that he had gained the habit
of carrying large amounts of cash with him, because you never knew
when you would find a queue forming at a store that just got a
shipment of some item. That habit is as good an example of a
spontaneous order as any. (Of course, if that seems too petty an
example, the Soviet Union’s black markets and the entire system of
nomenklatura were also spontaneous orders.)

What difference does it make if the distinction between spontaneous

and constructed orders is really just a matter of degree? Professor
Caldwell says,

I would simply invoke Potter Stewart on hard-core pornography:

I know it when I see it. When Paris gets fed though no one plans
it, even though it involves millions of people acting on their own
individual plans, I see such an order. When the firing of millions
of neurons creates the consciousness required to plow through
Hayek’s dense prose, I see one. When I read Bill Easterley’s
(but not Jeffrey Sach’s) recommendations about how to deal
with global problems, I see suggestions that depend on orders
forming, on providing frameworks in which people are allowed to
use their own local knowledge to improve things.

But there’s a reason why Justice Stewart’s “know it when I see it”
phrase is not the law of the land. (It appears in his concurring opinion
in Jacobelius v. Ohio (1964)). It’s because such a vague definition
can’t serve as a guide to action; it’s arbitrary. Indeed, as Justice
Harlan wrote four years later, “anyone who undertakes to examine
the Court’s decisions… which have held particular material obscene
or not obscene would find himself in utter bewilderment.” The same
is true of anyone who tries to decide what to do on the basis of
spontaneous versus constructed order. (This was the basis of my
critique of Easterly some time ago on my blog.)

Spontaneous order is a great descriptive tool for explaining how

Paris gets fed even though nobody plans it. But it does not give us a
foundation for a normative critique of constructed plans for feeding
Paris. The conscientious Hayekian elected official is totally stuck
when asked whether to vote in favor of, or against, any particular
program to feed Paris. If he votes for it, he’s a constructivist because
he’s imposing a top-down order… but since spontaneous orders
arise from constructed orders, his yes vote is also an integral part of
the spontaneous order; one of those crucial experiments Hayek
praises. On the other hand, if he votes no, he’s a constructivist
because he’s imposing his view of a just society on a complex
system of interconnected social institutions, wiping them all away in
service of his a priori conceptions of justice…and yet, since
spontaneous orders will arise to fill the gap left by the lack of a
government program, it is his no vote really serves the spontaneous
order.

In saying this, I’m mindful of Aristotle’s warning that “it is the mark of
an educated man to look for precision in each class of things just so
far as the nature of the subject admits; it is evidently equally foolish
to accept probable reasoning from a mathematician and to demand
from a rhetorician scientific proofs.” Economics necessarily deals in
things that are so “for the most part.” But in Law, Legislation And
Liberty and The Constitution of Liberty, Hayek is not writing simply as
an economist: he’s writing as a lawyer, and he promises us a clear-
cut conceptual distinction — he even comes up with Greek names
(taxis and kosmos) and always speaks of spontaneous and
constructed orders as though they are conceptually distinct; this
distinction is crucial to his prescriptive sociology.

And yet, on closer scrutiny, all Hayek is really telling us is to “be

careful” and reform things “piecemeal.” And this doesn’t help
because “piecemeal” is a relative term. Any time a bill is offered to
feed Paris, or to change the lightbulb, free marketers might object
that this is a “constructed order,” and yet the rebuttal is obvious: no,
it’s just one piecemeal, experimental component of a larger-scale
spontaneous order. A government program to feed Paris is a
piecemeal program seen from the perspective of France, or Europe,
or the hemisphere, or the earth. Indeed, even a government program
forcing you to replace lightbulbs is just an experiment in a higher-
level spontaneous order, because it is only a piecemeal change
when viewed “from a distance.” Such a law certainly generates new,
unplanned orders, particularly seen from a worldwide scale. Unless
you regard it as wrong for the government to tell you what lightbulb
to buy, you cannot use the spontaneous/constructed order argument
to oppose such plans. And, of course, Hayek gives us no grounds for
arguing that coercion is wrong. For him, coercion is just as much a
part of spontaneous order as anything else.

But my point here isn’t so much to attack Hayek as to defend

rationalism — more specifically, to defend reformers who seek to
implement constructed change in the service of philosophical values
— to defend idealists. And on that score, let’s look at slavery as a
constructed order. Prof. Hasnas argues that slavery was propped up
by legislation in a reaction against social anti-slavery trends. True,
but could a devout Hayekian oppose such laws? They were
“framework” laws — not specific orders to particular people —
devised to maintain the spontaneously generated social order.
Indeed, it seems to me that abolitionism is as good an example of
“market failure” as anything else: people were “stealing” valuable
“assets” or encouraging them to run away or to violently rebel; that is
“market inefficiency,” no? Banning anti-slavery pamphlets from the
U.S. Mail, as the Jackson Administration did, served what Hayek
called “[t]he preservation of an enduring system of abstract
relationships, or of the order of a cosmos with constantly changing
content.” Such a rule “fill[ed] a definite gap in the body of already
recognized rules in a manner that…serve[d] to maintain and improve
that order of actions which the already existing rules made possible.”

What’s more, you’d be hard-pressed to find a more “constructed”

legal order than the post-Civil War work of the Radical Republicans,
including the Fourteenth Amendment. The Radical Republicans
sought to radically revise the federalist structure of the United States
on the basis of abstract moral notions derived from the Declaration
of Independence. If that isn’t rational constructivism, I don’t know
what is! And, again, the complaint against abolitionists articulated by
John Calhoun, George Fitzhugh, Jeremiah Sullivan Black, and
others, was precisely that abolitionists were radical constructivists
who wanted to overthrow the spontaneous order. Northern
interlopers, they said, were destroying the complex, evolved
southern way of life in the service of some preconceived picture of
justice; Radical Republicans were, one might say, “swooping in with
the power of legislation to right wrongs and eliminate injustice.”
Radical Republicans very much intended to change the lightbulb,
and I think we should all be happy that they did so.

So I agree with Prof. Hasnas that spontaneous order is an important

concept — but it can only be a component in an argument for liberty
that must be rooted in human values. Liberty is a good thing
because it is right — not because it fosters spontaneous orders.
Everything does that, one way or the other, and spontaneity itself
goes nowhere and does nothing. It changes no lightbulbs. People
have to change the lightbulbs, and they do so through intentional,
rational, constructed action. The reason centralized planning and
government coercion is wrong is not because it disrupts
spontaneous order, but because freedom is a good, something to
which all people are justly entitled. The reason government
intervention in the lightbulb market is bad is because I should have a
right to use what lightbulbs I want to. Yes, markets are remarkable
phenomena, but the argument for liberty must be rooted on the sort
of exogenous, and contentious, moral values of which Hayek was so
suspicious.


I read Timothy Sandefur’s latest contribution to our on-line

conversation with interest. I do not believe, however, that I am able
to respond in an interesting way. It appears to me that Mr. Sandefur
and I are talking past each other. We are using the essential terms of
the debate in different ways, and apparently not addressing each
other’s points. If you will forgive my use of cliches, from my
perspective, Mr. Sandefur is simultaneously beating a dead horse
and relentlessly attacking a straw man. I can only assume that he
perceives my comments as similarly abstruse. Rather than continue
to rehearse the same points, let me make a few remarks to explain
my perception of the state of the debate, and then subside.

First, the beating of a dead horse. Mr. Sandefur repeatedly and

relentlessly hammers home the point that the fact that an ordering
arises through spontaneous processes carries no normative
implications. To wit,

Spontaneous orders arise out of planned, intentional actions, so

the phenomenon of spontaneous order cannot counsel us
against planned, intentional actions. Since constructivism is a
component of spontaneous order, spontaneous order gives us
no traction for a critique of planning. . . .

That’s why the evolution analogy works: evolution is the long-

term order resulting from countless individual actions of animals
in the ecosystem. But we cannot draw normative conclusions
from this descriptive account. Spontaneous orders emerge no
matter what you do. . . .

Spontaneous order is a great descriptive tool for explaining how

Paris gets fed even though nobody plans it. But it does not give
us a foundation for a normative critique of constructed plans for
feeding Paris. . .

Liberty is a good thing because it is right — not because it

fosters spontaneous orders. Everything does that, one way or
 the other, and spontaneity itself goes nowhere and does
nothing.

The problem is that no one is asserting the contrary. No one is

arguing that spontaneous orders are good or right or have any
normative force simply because they arise spontaneously. It is true
that Hayek often wrote as though this was the case. But Hayek’s
unsuccessful effort to jump the is-ought gap has long been noted.
This is an old objection to his work and one with which we agreed at
the outset of the discussion.

I, and others, argue for certain forms of spontaneous orders explicitly

because human beings are more likely to realize important,
independently verified ethical values through them than through
constructed orders, not merely because they spontaneous. There is
no need to repeatedly make a point that no one disagrees with.

Next, the different use of the essential terms. I am not sure how I can
make this plainer than in my previous posting. Social orders are
orders of human actions. Human beings usually act intentionally.
Hence, social orders are orderings of intentional human actions. The
modifiers “spontaneous” and “constructed” apply to orders, not
actions. “Constructivism” is not a synonym for “intentional” that can
be applied to individual actions. Constructivism implies an intentional
construction of the overall order, not the “construction” of the
intentional acts of the human beings who make up the order. When
Mr. Sandefur argues that “constructivsm” is a component of
spontaneous order, he is conflating intentionally undertaken
individual action with intentional efforts to order the overall system of
individual actions. To wit:

But the phenomenon of spontaneous order tells us nothing

about how lightbulbs ought to be changed or not changed,
because the only way to change lightbulbs is through
intentional, “constructed” action. . .

Spontaneous orders arise out of planned, intentional actions, so

the phenomenon of spontaneous order cannot counsel us
 against planned, intentional actions. Since constructivism is a
component of spontaneous order, spontaneous order gives us
no traction for a critique of planning. . . .

. . . whatever you do will result in some sort of big-picture effect

that will then be properly described as a “spontaneous order.”
This is true even if what you’re doing is really, really constructed
and planned. . . .

People have to change the lightbulbs, and they do so through

intentional, rational, constructed action.

The equivocal use of the term “constructed” to apply to both the

intentional actions of individuals and the intentional efforts to order
the actions of individuals introduces significant confusion into the
discussion and obfuscates the distinction between the realms of
individual and collective choice, which lies at its heart.

This obfuscation is illustrated by Mr. Sandefur’s example of the

French politician,

The conscientious Hayekian elected official is totally stuck when

asked whether to vote in favor of, or against, any particular
program to feed Paris. If he votes for it, he’s a constructivist
because he’s imposing a top-down order. . . but since
spontaneous orders arise from constructed orders, his yes vote
is also an integral part of the spontaneous order; one of those
crucial experiments Hayek praises. On the other hand, if he
votes no, he’s a constructivist because he’s imposing his view of
a just society on a complex system of interconnected social
institutions, wiping them all away in service of his a priori
conceptions of justice. . . .

Of course it does not matter how the politician votes. He is playing in

the ballpark of collective choice. Whatever he does he is engaging in
constructivism because he is engaging in political
decisionmaking, which by its nature will impose one rule on all.
The alternative that is relevant to the subject we are discussing is not
how politicians vote, but whether Paris is more likely to be effectively
fed through political action or the actions of individual human beings
functioning in the market.

Finally, attacking a straw man. Mr. Sandefur states,

But my point here isn’t so much to attack Hayek as to defend

rationalism — more specifically, to defend reformers who seek
to implement constructed change in the service of philosophical
values — to defend idealists.

Such idealists need no defense, since no reasonable person is

attacking them. The only party such idealists could need defense
against is one who reads Hayek as asserting that no intentional
action to change the status quo should be taken. But this is to again
conflate criticism of intentional efforts to construct orders with
criticism of intentional individual action to end injustice. Mr. Sandefur
states,

Prof. Hasnas argues that slavery was propped up by legislation

in a reaction against social anti-slavery trends. True, but could a
devout Hayekian oppose such laws? They were “framework”
laws — not specific orders to particular people — devised to
maintain the spontaneously generated social order. . . . Banning
anti-slavery pamphlets from the U.S. Mail, as the Jackson
Administration did, served what Hayek called “[t]he preservation
of an enduring system of abstract relationships, or of the order
of a cosmos with constantly changing content.” Such a rule
“fill[ed] a definite gap in the body of already recognized rules in
a manner that...serve[d] to maintain and improve that order of
actions which the already existing rules made possible.”

The straw man here is the “devout Hayekian.” I began my last post
by distinguishing those who are interested in advancing Hayek’s
work from Hayekian “disciples.” We began by recognizing that
Hayek’s jurisprudential thought was defective. We agreed that Hayek
erroneously tried to have the formal values of consistency and
generality do substantive normative work. Continually reviving this
position only to knock it down again is a classic attack on a straw
man.

Mr. Sandefur defends the rational constructivism of the political

action of the abolitionists — “The Radical Republicans sought to
radically revise the federalist structure of the United States on the
basis of abstract moral notions derived from the Declaration of
Independence. If that isn’t rational constructivism, I don’t know what
is!” It is unclear who he is defending it against. If one is playing in the
collective choice ballpark, all one can do is engage in political
struggle to try to influence the collective decisionmaker to do the
right thing. Such action is noble and even inspiring. But as I pointed
out previously, due to the incentives within the political system, it is
usually unavailing, as it was in the case of the abolitionists. No one is
criticizing such action within the political sphere. Advocates of
spontaneous order are simply pointing out that we would be more
likely to achieve justice if we didn’t enter that sphere in the first
place. Once again, Mr. Sandefur is arguing against the straw man
who argues that individuals should take no action to end injustice.

Mr. Sandefur concludes his posting with,

So I agree with Prof. Hasnas that spontaneous order is an

important concept — but it can only be a component in an
argument for liberty that must be rooted in human values.
Liberty is a good thing because it is right — not because it
fosters spontaneous orders. . . . The reason centralized
planning and government coercion is wrong is not because it
disrupts spontaneous order, but because freedom is a good,
something to which all people are justly entitled. The reason
government intervention in the lightbulb market is bad is
because I should have a right to use what lightbulbs I want to.
Yes, markets are remarkable phenomena, but the argument for
liberty must be rooted on the sort of exogenous, and
contentious, moral values of which Hayek was so suspicious.

These comments are entirely correct. No one other than the crude
Hayekian disciple who remains unreasonably wedded the naturalistic
fallacy at the heart of Hayek’s moral philosophy — one who finds it
problematic that “the argument for liberty must be rooted on the sort
of exogenous, and contentious, moral values of which Hayek was so
suspicious” — would disagree with them. But this position was
rejected in the first posting. Continuing to attack a position not held
by one’s interlocutor is an archetypical example of attacking a straw
man.

Addendum: Although not strictly relevant to this discussion, I cannot

close without a defense of Potter Stewart, a great champion of the
First Amendment. In making his famous statement that “I know it
when I see it,” he was not proposing a personal and arbitrary
standard of law. In fact, he was arguing against precisely such a
standard. Earlier in his brief opinion, he recognized that obscenity
“may be undefinable,” and hence that attempts to regulate it should
be minimized. His statement was made in support of the decision
not to regulate the movie in question. He was saying that no matter
how the category of regulated speech is defined, the movie does not
fall within it. The full quote is, “I shall not today attempt further to
define the kinds of material I understand to be embraced within that
shorthand description, and perhaps I could never succeed in
intelligibly doing so. But I know it when I see it, and the motion
picture involved in this case is not it.”


Tim’s recent declarations for rationalism and idealism succinctly

express his impetus against Hayek.

I think it’s misguided to think that there is Ethics, which tell us what is
Right, and then there are “positive” understandings, to which we may
then apply our ethical conclusions. I more see it as one big
conversation, with ises and oughts naturally and tacitly interwoven
and easily translated one into the other. So I can’t really enter in
Tim’s mode of thought.

But in an important respect I second his stand for rationalism, and,

correspondingly, some dissatisfaction with Hayek.

As I see it, we organize classical liberal thought as a web of

statements. Those more central to the web may be called verities —
important by-and-large truths.

The central verity of liberalism/libertarianism concerns the liberty

principle, which says: In a choice between a dyad of policy reforms
(one of which may be no reform at all), the reform that ranks higher
in liberty is the more desirable.

The central verity of liberalism/libertarianism may be called the

liberty maxim, which says: By and large, the liberty principle
holds.

If Tim would drop the “by and large,” making the liberty principle the
central verity of liberalism/libertarianism, then I think he’s mistaken.

But that aside, I, too, see the liberty principle as an analytic fulcrum
and engine of inquiry. The liberty principle deserves the presumption,
placing the burden of proof on the interventionists, even when they
are defending the status quo. I favor that some — not all — liberals
go on the offensive swinging the liberty principle at most anything
standing in its way. I hazard to say that, in a significant way, Hayek
thought so, too. He wasn’t one of those suited to proceeding in such
fashion. But when Walter Block asked him to contribute a Foreword
endorsing Block’s Defending the Undefendable, Hayek graciously
did so and tipped his hat to Block’s regimen of “shock therapy.”

The approach — working off the liberty principle — is, however, often
less patent and elementary than some think. In many areas of policy
there are issues of disagreement between direct and overall liberty
(for the distinction, see Klein and Clark, forthcoming). In those
troublesome areas, if we define the liberty maxim in terms of direct
liberty (which I think we usually do), the “by and large” qualification
grows in significance. If we define it in terms of overall liberty, its
application becomes much fuzzier. (Did bailing out the banks
augment or reduce overall liberty? Did the United States pitching in
against Hitler augment or reduce overall liberty?)

—-

Reference:

Klein, Daniel B. and Michael J. Clark. “Direct and Overall Liberty:

Areas and Extent of Disagreement,” Mercatus Center Working
Paper. Reason Papers, forthcoming.


I have attended a lot of Liberty Fund meetings on Hayek and have

noticed that as a rule economists tend to like Hayek’s ideas much
more than political philosophers (whether housed in philosophy or
political science departments) do. The fascinating and instructive
exchange between Sandefur and Hasnas has helped me to
understand why. Hayek doesn’t answer the questions they feel are
important.

For economists the existence of spontaneous orders is obvious. I am

writing from home so do not have the texts in front of me, but I
believe that Hayek in his 1933 inaugural lecture said something like
recognizing the existence of such an order (though I think the word
that he used there was “organism”) was the beginning of economics
as a discipline. That sounds about right. That a whole new field
studying complex adaptive systems has emerged since Hayek first
began writing about these issues suggests at a minimum that
economists are not alone. Because such orders when humans are
involved contain intentional action which gives rise to unintended
orders does provide complications, but I think that Hasnas’ careful
discussion in his second reply answers the questions that Sandefur
raised.

In his latest post, Sandefur writes,

In Law, Legislation And Liberty and The Constitution of Liberty,

Hayek is not writing simply as an economist: he’s writing as a
lawyer, and he promises us a clear-cut conceptual distinction —
he even comes up with Greek names (taxis and kosmos) and
always speaks of spontaneous and constructed orders as
though they are conceptually distinct; this distinction is crucial to
his prescriptive sociology.

This gets at, I think, a key reason why he and I read Hayek so
differently. I am not trained as a lawyer and I never thought of Hayek
in either Law, Legislation and Liberty or Constitution of Liberty as
writing as a lawyer. (I do not have either text at home with me, so
cannot check whether he anywhere “promised us a clear-cut
conceptual distinction,” but perhaps Sandefur has a particular
passage in mind that he might provide.) More important, I don’t think
Hayek saw himself as doing so, either. That may account for why he
does not set his problem up in the way that Sandefur would prefer, or
provide answers to questions he’d like to have answers to.

Economists sometimes feel a similar frustration. Hayek always wrote

at a very abstract level. A lot of economists who hope to find in his
writings direct answers to specific policy questions will not come
away satisfied. I challenge our audience to tell me what Hayek
thought about anti-trust policy. I think that he had good reasons to
keep things vague — the Mont Pelerin Society had members from
countries who defined a liberal society very differently, and he
wanted to keep them talking to one another. But in the end it is also
true that Hayek was no policy wonk, and those who are would
probably do better reading either Milton Friedman or the Cato
Handbook for Policymakers (the latest copy of which I would be
delighted to receive from our good host as a belated Christmas
present!) than him. [I'll see to it. -- Ed.]

I’d like briefly to defend Hayek’s recourse to evolutionary theory and

in particular his claim that our morals are a product of evolution. Both
Sandefur and Hasnas see this as a weakness, whereas I see it as a
strength, at least for what I think Hayek was trying to do. I read
Hayek as a scientist trying to explain how we moved from a hunter-
gatherer society to what he termed “the great society,” and also to
explain why humans so often hate markets, even though the
evolution of a market society was fundamental in the movement to
the great society. The evolution of our morals also played a
fundamental role. In the end, Hayek was no foundationalist when it
came to morals. This was the reason why Bill Bartley, the Popperian
philosopher who was the first General Editor of Hayek’s Collected
Works and who as a follower of Popper argued that Popper’s whole
enterprise involved replacing the problem of justification with that of
criticism, was so attracted to Hayek’s late work, what Bartley called
his evolutionary epistemology and his evolutionary ethics.[1] Bartley
was pleased with Hayek’s lack of foundations. And it is why people
with specifically normative concerns, people like Hasnas and
Sandefur who are seeking for that elusive “Archimedean fixed point,”
find this aspect of Hayek’s work so unsatisfactory. Hasnas finds
Hayek to be a bad moral philosopher. I think it is more accurate to
say that he was a good scientist and social theorist, and not really a
moral philosopher at all, at least not of the foundationalist variety.

I’ll close by saying that the Austrian wertfreiheit tradition which feels
so comfortable to those trained as economists — we tell ourselves
that our task is not to make judgments, but to evaluate whether a
particular set of means will achieve the ends that people say they
want to pursue — is probably also part of the “problem.”[2] We
consider this stance a “virtue,” but that is as far as we feel
comfortable to go normatively.

—-

References

[1] For more on this see my paper “Clarifying Popper,” Journal of

Economic Literature 29, March 1991, pp. 1-33, especially the section
on “Popper on Critical Rationalism.”

[2]Although Robert Nelson is probably right that as the 20th century

progressed the economics profession moved from “neutral policy
experts” to advocates for efficiency in policymaking. See his “The
Economics Profession and the Making of Public Policy,” Journal of
Economic Literature 25, March 1987, pp. 49-91.


Bruce Caldwell’s recent posting prompts me to partially retract one of

my earlier comments. Bruce points out the unfairness of my
characterization of Hayek as a bad moral philosopher. He is correct
in this criticism, although perhaps not for the reason he has given.

Bruce states that Hayek never thought of himself as doing moral

philosophy, suggesting that it would be unfair to criticize him for
doing it badly. There is some truth in this, but I think that the thrust of
one of Sandefur’s attacks on Hayek was that his argument for
spontaneous rather than constructed order relied on an implicit,
undefended, and internally inconsistent commitment to the normative
value of liberty. I believe Sandefur is correct about this, and because
Hayek was arguing for normative conclusions without recognizing
when he was crossing the is-ought barrier, I characterized him as a
bad moral philosopher.

However, there is another sense in which this characterization may

be genuinely unfair. As Bruce points out, Hayek was not a
foundationalist. I should probably not own up to this in a public
forum, but I have often sent some of my postmodernist colleagues
unattributed quotations from Hayek, with which they expressed
enthusiastic agreement, merely to be able to needle them later when
I revealed that it was Hayek with whom they were agreeing. Now, I
am not personally a postmodernist. I do not believe that it is “turtles
all the way down,” to use the contemporary idiom. My basic position
is a deontological one, and I think there are some moral fixed points.
Sandefur’s comments led me to believe that he shares this
approach. This may lead both Sandefur and I to disagree with
Hayek’s non-foundationalist, postmodern approach to ethics, but it
would be unfair to characterize him as a bad moral philosopher for
holding it. Doing so would be to diss not only Hayek, but
postmodernism as a school of thought. If Hayek is indeed a bad
moral philosopher, it is not because of his postmodernism, but
because of his lack of perception regarding the underpinnings of his
own arguments.
I hope it is clear from my earlier remarks that criticizing Hayek for
being a poor moral philosopher, legal historian, or jurisprudential
thinker is hardly criticism at all. It is unfair to expect him to have been
a Renaissance man. His contributions in his field of expertise,
economics, completely overshadow any overreaching in the fields in
which he was, by his own admission, an amateur.


Related at Cato


BOOK FORUM

Monday, February 2, 2004

4:00 PM

Featuring Bruce J. Caldwell, Author, Hayek's Challenge: An

Intellectual Biography of F. A. Hayek (Chicago, 2003); and Lanny
Ebenstein, Author, Hayek’s Journey: The Mind of Friedrich Hayek
(Palgrave, 2003); with comments by Dick Armey, Former professor
of economics, former House majority leader, and cochairman,
Citizens for a Sound Economy.

The Cato Institute

1000 Massachusetts Avenue, NW

Washington, DC 20001
F. A. Hayek and the Common Law

F. A. Hayek (1899 - 1992)

Get the latest from F. A. Hayek (1899 - 1992):

"It is hardly an exaggeration to refer to the twentieth century as the

Hayek century," John Cassidy wrote in the New Yorker. The Cato
Institute was proud to count him as a Distinguished Senior Fellow.
We provided support for Hayek's research in his later years, during
which he wrote The Fatal Conceit: The Errors of Socialism and
lectured around the world. The Cato Institute's auditorium is named
for him. Hayek won the Nobel Prize in Economics in 1974 for his
"pioneering work in the theory of money and economic fluctuations
and penetrating analysis of the interdependence of economic, social
and institutional phenomena."

Hayek may have made his greatest contribution to the fight against
socialism and totalitarianism with his best-selling 1944 book, The
Road to Serfdom. In it, Hayek warned that state control of the
economy was incompatible with personal and political freedom and
that statism set in motion a process whereby "the worst get on top."
But not only did Hayek show that socialism is incompatible with
liberty, he showed that it is incompatible with rationality, with
prosperity, with civilization itself. His essay "The Use of Knowledge in
Society," published in the American Economic Review in 1945 and
reprinted hundreds of times since, is essential to understanding how
markets work.

Building on his insights into how order emerges "spontaneously"

from free markets, Hayek turned his attention after the war to the
moral and political foundations of free societies. The Austrian-born
British subject dedicated his classic The Constitution of Liberty "To
the unknown civilization that is growing in America." Hayek had great
hopes for America, precisely because he appreciated the profound
role played in American popular culture by a commitment to liberty
and limited government. While most intellectuals praised state
control and planning, Hayek understood that a free society has to be
open to the unanticipated, the unplanned, the unknown. As he noted
in The Constitution of Liberty, "Freedom granted only when it is
known beforehand that its effects will be beneficial is not freedom."
The freedom that matters is not the "freedom" of the rulers or of the
majority to regulate and control social development, but the freedom
of the individual person to live his own life as he chooses. The
freedom of the individual to break old molds, to create new things,
and to test new paths is the mark of a progressive society: "If we
proceed on the assumption that only the exercises of freedom that
the majority will practice are important, we would be certain to create
a stagnant society with all the characteristics of unfreedom."

Although sometimes characterized by his critics as a "conservative,"

Hayek always maintained that he was in fact an old-fashioned
liberal, a believer in individual liberty, constitutionally limited
government, and the free market of ideas and of goods. A
progressive society must always be open to innovation, at the same
time that it rests on a stable foundation of rights and rules of just
conduct. He entitled the postscript to The Constitution of Liberty
"Why I Am Not a Conservative."
Bios

Timothy Sandefur

Timothy Sandefur is a senior staff attorney at the Pacific Legal

Foundation in Sacramento, California, where he heads the
Foundation’s Economic Liberty Project. He is a Cato Institute adjunct
scholar, and a Lincoln Fellow at the Claremont Institute.

Sandefur earned his law degree from Chapman University School of

Law in 2002. He is the author of more than 30 scholarly articles as
well as the books Cornerstone of Liberty: Property Rights in 21st
Century America (2006) and The Right to Earn A Living: Economic
Freedom And The Law (forthcoming, 2010). He recently authored a
friend of the court brief on behalf of Cato and the Pacific Legal
Foundation in McDonald v. Chicago, the important Fourteenth
Amendment case now pending before the U.S. Supreme Court. He
blogs regularly at Freespace.

John Hasnas

John Hasnas is an associate professor of business at Georgetown’s

McDonough School of Business and a visiting associate professor of
law at Georgetown University Law Center in Washington, DC, where
he teaches courses in ethics and law. Professor Hasnas taught at
Georgetown University Law Center and Duke University School of
Law full-time during the 2008-09 academic year and has held
previous appointments as associate professor of law at George
Mason University School of Law, visiting associate professor of law
at the Washington College of Law at American University, and Law
and Humanities Fellow at Temple University School of Law.
Professor Hasnas has also been a visiting scholar at the Kennedy
Institute of Ethics in Washington, DC and the Social Philosophy and
Policy Center in Bowling Green, Ohio.

Hasnas received his B.A. in Philosophy from Lafayette College, his

J.D. and Ph.D. in Legal Philosophy from Duke University, and his
LL.M. in Legal Education from Temple Law School. Between 1997
and 1999, Professor Hasnas served as assistant general counsel to
Koch Industries, Inc. in Wichita, Kansas. His scholarship concerns
ethics and white collar crime, jurisprudence, and legal history. His
book Trapped: When Acting Ethically Is Against the Law is available
from the Cato Institute.

Daniel B. Klein

Daniel Klein, Cato Institute Adjunct Scholar, is a Professor of

Economics at George Mason University, where he leads a program
in Adam Smith. He is the editor of Econ Journal Watch. He has
published research on policy issues including toll roads, urban
transit, auto emission, credit reporting, and the Food and Drug
Administration, and on spontaneous order, coordination, the
discovery of opportunity, the demand and supply of assurance, why
government officials believe in the goodness of bad policy, why
people favor government intervention more than they should, and
the relationship between liberty, dignity, and responsibility. His books
include Curb Rights: A Foundation for Free Enterprise in Urban
Transit (1997; co-authored with Adrain T. Moore and Binyam Reja),
What Do Economists Contribute? (1999), The Half Life of Policy
Rationales (2003; co-edited with Fred E. Foldvary), and Reputation:
Studies in the Voluntary Elicitation of Good Conduct (1997). His new
book, Knowledge and Coordination: A Liberal Interpretation will be
published in 2011 by Oxford University Press. Klein spends several
months every year in Stockholm, where he is affiliated with the Ratio
Institute.

Klein holds degrees from George Mason University and New York
University, where in both cases he studied the classical liberal
traditions of economics.

Bruce Caldwell

Bruce Caldwell is a Research Professor and the Director of the

Center for the History of Political Economy at Duke University. He is
the author of Beyond Positivism: Economic Methodology in the 20th
Century, first published in 1982. For the past two decades his
research has focused on the multifaceted writings of the Nobel prize-
winning economist and social theorist Friedrich A. Hayek. Caldwell’s
intellectual biography of Hayek, Hayek’s Challenge, was published in
2004 by the University of Chicago Press. Since 2002 he has been
the General Editor of The Collected Works of F.A. Hayek, a
collection of Hayek’s writings published jointly by the University of
Chicago Press and Routledge. Formerly at the University of North
Carolina at Greensboro, Caldwell has also held research fellowships
at New York University, Cambridge University, and the London
School of Economics. He is a past president of the History of
Economics Society, a past Executive Director of the International
Network for Economic Method, and a Life Member of Clare Hall,
Cambridge.

Cato Unbound
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Welcome. All you have to lose are your preconceptions!
 Table of Contents
Table of Contents
Contents
About This Issue
Lead Essay
Four Problems with Spontaneous Order
Response Essays
Four Solutions to Sandefur's Problem
The Conversation
Unmade, Amoral Orders Composed of Made, Moral orders? A
Response to John Hasnas
Once More unto the Breach: A Reply to Timothy Sandefur's
Response
The Mind-Society Spiral
Is "Know It When I See It" Enough?
Reflections on Dead Horses, Semantic Confusion, and Straw Men
1 1/2 Cheers for Tim's Impetus
Why Doesn't Hayek Answer the Questions That I Feel Are
Important?
A Bit of Packpedaling
Related at Cato
The Ideas and Impact of F. A. Hayek
F. A. Hayek and the Common Law
F. A. Hayek (1899 - 1992)
Bios
About Cato Unbound