Law and Politics

The theory of spontaneous orders is a byproduct of Hayek's attempt to lay the foundations for his proposal to separate law from politics. The political is related to conflicts that are open to escalation, while the conflicts of the law are meant to be solved by the verdict of the judiciary courts. The former works with the logic of positive feedback systems and the latter is the very example of a negative one. That is why Hayek imagined two different legislative chambers to deal with political issues and to enact general laws. Politics is about expediency and law is based on abstract principles.

Nevertheless, what had once been conceived by Hayek as a tool to justify his project of a constitutional reform, gained a life of its own. Nowadays we can find several works that concerns Hayek's notion of spontaneous orders, but which disregards his proposal on institutional reform. This is not bad at all. After all, the theory of spontaneous orders shows the necessity of keeping separated law from politics. So, the more we develop the spontaneous orders theory, the closer we will be to achieve Hayek's constitutional program.

Notwithstanding the importance of the study of the complex phenomena, all Hayek's enterprise would be lost if we neglected the mission of building a division between politics and law. This topic has generally been worked by authors that intended to erase norms from politics, like Carl Schmitt, but Hayek remains to this day to be the main author to seek to prevent law from being captured by the political logic of solving disputes on an expediency basis. Perhaps we need more papers on law and politics. Those works will be "Hayekian" as long as they state the independence of law from politics, regarding the former as a negative feedback system which provides solutions based on principles to conflicts related to the interaction of different spheres of individual autonomy. In fact, this is the core of the spontaneous order notion: a normative system which does not depend on any political will to work and evolve.