Evolution and the Rule of Law: Hayek’s Concept of Liberal Order Reconsidered

HAYEK’S WORKS WOULD SEEM to be divided into two distinct parts that cannot be logically combined (Wilhelm 1972, p. 179f.). On the one hand, Hayek postulates a “legal framework of general and abstract rules” (Gray 1980) on whose basis a spontaneous order arises in the form of individuals’ interaction (Hayek 1960, pp. 148ff.). This framework must fulfill certain criteria in order to guarantee a maximum of individual freedoms: its rules must be universal, abstract, open, and certain in order to discern equal private spheres for each individual. On the other hand, these criteria would appear to contradict Hayek’s concept of the “twin ideas of evolution and of the spontaneous formation of order” (Hayek 1991b, p. 81): not only is the social order—the entirety of individuals’ spontaneous interactions as determined by a framework of a liberal order—the unintended result of evolutionary processes, but so is the framework itself.1 According to Hayek, a decisive feature of these processes is their uncertain outcome. Therefore, a rule formed in an evolutionary process does not necessarily have the characteristics mentioned above, nor secure individual freedom (Hayek 1973, pp. 88f.). Thus, rules ensuring a liberal order are by no means necessarily identical with those evolved over time.2