Friedrich August von Hayek's Conception of Law: Between Liberal Ideology and Social Theory

The article is devoted to the re-problematisation of F.A. Hayek's legacy in philosophy of law and social theory. Taking as an example the works of SPSU professor I.Y. Kozlikhin, and some other works about Hayek's theory of law, the author demonstrates several inadequacies of the current literature on Hayek's legal philosophy. In criticizing these highly debatable approaches, the author describes multiple but rarely considered nuances of Hayek's conception of law, which seem to be necessary for adequate understanding of his works. In the author's view, only these details allow to cast some doubt on stereotypes about Hayek as a sort of “liberal ideologist” and unfold the true original potential of his philosophy. The main hypothesis of the article is that the key to this original potential lies not in Hayek's theory of freedom and market, but in his fundamental epistemological views. The ideal of freedom is not enough to discriminate between what is “just law” and what is not in hayekian theory. Only by the means of Hayek's epistemology we can separate law as “rules of just conduct” from other types of social institutions in his theory. This separation is based on broader epistemological separation of “simple” and “complex” phenomena in Hayek's theory of knowledge, which is reflected in his distinction between “organization” (Taxis) and “spontaneous order” (Kosmos). Since only the last of them represents a «complex phenomenon», it means that only a system of special meta-rational rules of conduct can provide an epistemically restricted social actor with an ability to act effectively in such a complex and rationally unknowable social structure. It is argued that only this “technical” capacity of meta-rational just law can be seen as the true basis of Hayek's theory of law. Neither hayekian theory of freedom, nor histheory of market can shed light on the Hayek’s most important and original contribution in the domain of legal theory. It is Hayek's epistemology that can be seen as the ultimate foundation of his conception of lawn.

Keywords: Friedrich August von Hayek; theory of law; law and institutional values; law and social order; epistemology