Saturday, 22 May 2010
At the beginning...
For Hayek, the law is logically and chronologically previous to the government. That is the meaning of the rule of law: a political order founded on the law. Since the political powers receive their legitimacy from the law, the latter is exogenous to the political subsystem. That is why Hayek regards the law as a spontaneous phenomenon. This is not a description of the political reality, but a theory on a political system based on the rule of law which the social scientist can derive normative statements from.
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2 comments:
"Since the political powers recive their legitimacy from the law, the latter is exogenous to the political subsystem." Although this is an accurate depiction of what Hayek says, it should be noted that there is a tension between the political subsytem and the law, that can only be solved if it is a shared understanding that the law is above politics (that's why Hayeks says that the rule of law is "a meta-legal doctrine"). But then, how can we make a transition from our current understanding of politics as the source of the law, to the Hayekian understanding of the law as an spontaneous order?
Scott Shapiro's new book "Legality" throws some light on this. I recommend it.
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