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Home » Uncategorized » 20130915 Law, Legislation and Liberty Volume 1

20130915 Law, Legislation and Liberty Volume 1

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As usual Hayek tackled one of the most important areas of human life / action and came up with very interesting insights:

1. Reason and Evolution
The main point is the collision of two views of the world – evolutionary view, which holds that law is and organic part of human society and developed through method of trial and error with the level of complexity just not comprehensible for human being; and Cartesian view coming from tradition of René Descartes which holds that law comes from human reasoning by some legendary law giver and not only easily comprehensible by human beings, but is subject to legislative change as it deem fitted by current generation of philosophers/Legislator/kings .
When I was a young member of Soviet Society, O would wholeheartedly supported Cartesian view that was fitting so much to communist ideal of changing world. Now quite a few years older and a lot wiser based on my experiences I have little doubt in validity of evolutionary view. The way I see it now – any change should be treated as necessary fix when something is not working anymore. It is not that any change should be small, but rather it should be proportional to changed environment and should not be taken easily. In short the imperative should be to minimize possible damage. The results of Cartesian view with logic of doing change fast and on mass scale was widely used in country of my birth and it has millions and millions of graves and destroyed society to show for it.

2. Cosmos and Taxis
These two notions are linked to concept of order which is defined by Hayek as “A state of affairs in which a multiplicity of elements of various kinds are so related to each other that we may learn from our acquaintance with some spatial or temporal part of the whole to form correct expectations concerning the rest, or at least expectations which have a good chance of proving correct”.
From here comes notion of TAXIS as made order and KOSMOS as grown self-organized order taken from Classical Greek. The very important inference from this is that spontaneous / self-organized order (KOSMOS) comes from compliance with certain rules of conduct developed over the long time in evolutionary process even if these rules are vague and does not make a lot of sense to individual. The TAXIS on other hand is man made rules of organization created by organizational leaders any way they wish.

3. Principles and Expediency
This is another point of Hayek’s multidimensional view – Principled approach to decision-making based on inviolable principles whether individual understands them or not versus Expediency approach when decision-making based on what individual believes is the most effective way to achieve objective.
I think it could be illustrated by contrast of use of one of Ten Commandments “You shell not kill” with communist / national-socialist approach – “Let’s kill these people Kulaks/Jews because they seems to be an obstacle to achieving our objectives.” I completely agree with Hayek on this point:” Freedom can be preserved only by following principles and is destroyed by following expediency”

4. The Changing Concept of Law
Hayek contrasts concept of Law as old self-organizing system developed by society with Legislation as part articulation, part codification of existing Law and part current rules of game defined by Legislature. He brings a very interesting definition of Common Law given by eighteenth century judge Lord Mansfield –who stressed, “ Common law does not consist of particular cases, but of general principles, which are illustrated by particular cases”.

5. Nomos: The Law of Liberty
Here Hayek uses is another Greek notion for customs and habits to discuss role of judge as interpreter of existing Law for a special cases before him. In this case the aim of jurisdiction is the maintenance of and ongoing order of actions. In this case judge should act under constrain of two notions: values and facts to decide which expectations of outcome should be met and which should not. In this view the law is process of discovery of what are relevant norms and how they apply in particular case.

6. Thesis: The Law of Legislation
In this case the law is not a discovery process, but rather manufacturing process. The Legislature manufactures rules of conduct with little if any regard to previously existing norms. Hayek reviews various areas of legislative activities demonstrating that in this case law become just a tool for rulers to control individuals first in foremost in the interest of people who are in control of government, whatever they interests are.


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