just the intro is below:
Introduction: The Recent Revival of Spontaneous Order
B.1
The theory of spontaneous order has a long tradition in the history of social thought, yet it would be true to say that, until the last decade, it was all but eclipsed in the social science of the twentieth century. For much of this period the idea of spontaneous order—that most of those things of general benefit in a social system are the product of spontaneous forces that are beyond the direct control of man—was swamped by the various doctrines of (to use Friedrich A. Hayek’s phrase in Law, Legislation and Liberty) ‘constructivistic rationalism.’[1] No doubt the attraction of this rival notion of rationalism stems partly from the success of the physical sciences with their familiar methods of control, exact prediction, and experimentation. It is these methods which have an irresistible appeal to that hubris in man which associates the benefits of civilization not with spontaneous orderings but with conscious direction towards preconceived ends. It is particularly unfortunate that the effect of constructivistic rationalism should have been mainly felt in economics. This is unfortunate not merely because attempts to direct economics have repeatedly failed but also because the discipline of economics has developed most fully the theory of spontaneous order.
The last ten years have seen a rehabilitation of the economic philosophy of classical liberalism; indeed Hayek, its major contemporary exponent, was awarded the Nobel Prize for Economic Science in 1974. But the necessary accompaniment of that economic theory, the philosophy of law and social institutions, has been largely ignored by the social science establishment. This oversight has occurred despite the fact that, for example, the bulk of Hayek’s own work in the last thirty years has consisted of a theoretical reconstruction of the social philosophy of classical liberalism and despite the fact that he has himself stressed that a knowledge of economic principles of resource allocation alone is quite inadequate for the understanding of the order of a free society. Indeed, the contemporary concern with specialization in the social sciences is itself an important barrier to the acceptance of the doctrine of spontaneous evolution precisely because this theory straddles so many of the artificial boundaries between academic disciplines.
The Main Elements in the Theory of Spontaneous Order
The simplest way of expressing the major thesis of the theory of spontaneous order is to say that it is concerned with those regularities in society, or orders of events, which are neither (1) the product of deliberate human contrivance (such as a statutory code of law or a dirigiste economic plan) nor (2) akin to purely natural phenomena (such as the weather, which exists quite independently of human intervention). While the words conventional and natural refer, respectively, to these two regularities, the ‘third realm,’ that of social regularities, consists of those institutions and practices which are the result of human action but not the result of some specific human intention.[2]
‘Invisible Hand’ Social Patterns & Methodological Individualism
Despite the complexity of the social world, which seems to preclude the existence of regularities which can be established by empirical observation, there is a hypothetical order which can be reconstructed out of the attitudes, actions, and opinions of individuals and which has considerable explanatory power. What is important about the theory of spontaneous order is that the institutions and practices it investigates reveal well-structured social patterns, which appear to be a product of some omniscient designing mind yet which are in reality the spontaneous co-ordinated outcomes of the actions of, possibly, millions of individuals who had no intention of effecting such overall aggregate orders. The explanations of such social patterns have been, from Adam Smith onwards, commonly known as ‘invisible hand’ explanations since they refer to that process by which “man is led to promote an end which was no part of his intention.”[3] It is a major contention of the theory of spontaneous order that the aggregate structures it investigates are the outcomes of the actions of individuals. In this sense spontaneous order is firmly within the tradition of methodological individualism.
Spontaneous Order & ‘Reason’
The role of ‘reason’ is crucially important here because the theorists of spontaneous order are commonly associated with the anti-rationalist tradition in social thought. However, this does not mean that the doctrine turns upon any kind of irrationalism, or that the persistence and continuity of social systems is a product of divine intervention or some other extraterrestrial force which is invulnerable to rational explanation. Rather, the position is that originally formulated by David Hume. Hume argued that a pure and unaided human reason is incapable of determining a priori those moral and legal norms which are required for the servicing of a social order. In addition, Hume maintained that tradition, experience, and general uniformities in human nature themselves contain the guidelines for appropriate social conduct. In other words, so far from being irrationalist, the Humean argument is that rationality should be used to “whittle down” the exaggerated claims made on behalf of reason by the Enlightenment philosophes. The danger here, however, is that the doctrine of spontaneous evolution may collapse into a certain kind of relativism: the elimination of the role of reason from making universal statements about the appropriate structure of a social order may well tempt the social theorist into accepting a given structure of rules merely because it is the product of traditional processes.
The ‘rationalism’ to which the theory of spontaneous order is in intellectual opposition precedes the Enlightenment and perhaps is most starkly expressed in seventeenth-century natural law doctrines. In Thomas Hobbes’ model of society, for example, a simple ‘natural’ reason is deemed to be capable of constructing those rules which are universally appropriate for order and continuity. It is assumed that this reason can only conceive of a legal order in terms of rules emanating from a determinate sovereign at the head of a hierarchical system. That hidden wisdom immanent in a dispersed and evolutionary system is therefore systematically ignored in the pursuit of a statute or code structure. That other seventeenth-century natural law theorists took a more generous view of human nature, and hence produced rule structures more amenable to liberty and rights, does not alter the fact of their common anti-traditionalist and rationalist epistemology.
The theory of spontaneous order, then, is concerned with those ‘natural processes’ which are not the product of reason or intention. The classic example is the free market economy in which the co-ordination of the aims and purposes of countless actors, who cannot know the aims and purposes of more than a handful of their fellow-citizens, is achieved by the mechanism of prices. A change in the price of a commodity is simply a signal which feeds back information into the system enabling actors to ‘automatically’ produce that spontaneous co-ordination which appears to be the product of an omniscient mind. The repeated crises in dirigiste systems are in essence crises of information since the abolition of the market leaves the central planner bereft of that economic knowledge which is required for harmony. There is no greater example of the hubris of the constructivist than in this failure to envisage order in a natural process (which is not of a directly physical kind). As Hayek says in “Principles of a Liberal Social Order”:
Much of the opposition to a system of freedom under general laws arises from the inability to conceive of an effective co-ordination of human activities without deliberate organization by a commanding intelligence. One of the achievements of economic theory has been to explain how such a mutual adjustment of the spontaneous activities of individuals is brought about by the market, provided that there is a known delimitation of the sphere of control of each individual.[4]
B.8
Following on from this account of reason to explain spontaneous orders is a related account of ‘law.’ There are terminological problems here because theorists of spontaneous order do not always use the term ‘natural law’ to describe those general rules that govern a free society precisely because the phrase has, as we have already observed, rationalistic overtones. The ‘natural’ law of spontaneous order theory refers to regularities in the social world brought about by men generating and adapting those rules appropriate to their circumstances. Thus law properly so-called is neither (1) the dictate of pure reason in which the structure of a legal order is designed independently of experience, nor is it (2) the positive law of, say, the Command School in which all law is deliberately created by an act of will. The theory of spontaneous order claims that in both deductivist natural law and positive law, legal structures are likely to be less regularized and more arbitrary and capricious. This capriciousness arises precisely because, to the extent that these legal structures ignore existing legal orders, they depend on a supermind both taking account of all possible human circumstances and devising appropriate rules from first principles. Rules appropriate for a spontaneous order, by contrast, are more likely to be discovered than deliberately created.
There is, of course, implicit in all the writers in this tradition the notion of an ethical payoff: that is, we are likely to enjoy beneficial consequences by cultivating spontaneous, natural mechanisms and by treating the claims of an unaided reason with some skepticism. Well-being, in other words, is the product of a special kind of accident. This is a quasi-utilitarian argument used to counter the more conventional utilitarian thesis that the public good can be rationalistically summed up from the preferences of individuals and directly promoted by centralized positive law. The theory of spontaneous order claims that the very complexities of social affairs mean that such a rationalistic project is almost certain to be self-defeating, even if one could assume the existence of benevolent and well-intentioned legislators. As Adam Smith put it: “I have never known much good done by those who affected to trade for the public good.”[5]
Two Senses of Spontaneous Order: Noncoercive Emergent Patterns vs. ‘Survival of the Fittest’
One important issue has a bearing on the explanatory power of the doctrine of spontaneous order. This centers on the fact that the theory has two interrelated meanings, which the writers under discussion do not clearly distinguish. In one sense we speak of a spontaneous order to refer to a complex aggregate structure which is formed out of the uncoerced actions of individuals, whereas in another sense we speak of the evolutionary growth of laws and institutions through a kind of Darwinian ‘survival of the fittest’ process (and the biological analogy is not inappropriate). In both these meanings we are describing social structures that are similar in not being of conscious design and which emerge independently of our wills, but the explanations are significantly different.[6] One version shows how institutions and practices can emerge in a causal-genetic manner while the other shows how they in fact survive.
We can perhaps illustrate this difference in the meanings of spontaneous order by comparing a market order with a legal order. Now the invisible hand explanation of the emergence of a market order is highly plausible because there is a mechanism, the price system, to bring about the requisite co-ordination. However, it is not obviously the case that there is an equivalent mechanism to produce that legal and political order which is required for the co-ordination of individual actions. Thus the legal system that a community has may have survived yet not necessarily be conducive to the hypothetical order of classical liberalism. Evolutionary undesigned processes may very well produce dead-ends, and the escape from these dead-ends would involve more expansive use of reason than that conventionally associated with the doctrine of spontaneous order.
Scholasticism and the Market as Spontaneous Order
Hayek has always claimed that his explanation of a more or less self-correcting social system continues a long tradition. While acknowledging it is absurd even to speculate on the beginnings of a tradition, Hayek often refers to the original Spanish schoolmen as the founders of the theory of spontaneous order.
The ‘School of Salamanca’: Scholastic Economic Thought & the Market
At one time the received wisdom concerning scholasticism was that this rationalistic moral philosophy, which stressed virtue and, for example, condemned usury, was incapable of generating a theory which traced systematically the social regularities that emerge from the pursuit of self-interest. But in the last thirty years or so the story has been substantially rewritten so that a more accurate interpretation of the scholastic general doctrine would see it as anticipating later individualistic theories. This is true of its economic theory, for a close analysis of it reveals a commitment to, and a clear understanding of, the theory of subjective value, of economic competition, and the quantity theory of money, among other things. The scholastic economic philosophy reached its apogee in sixteenth-century Spain where the theologian-economists of the ‘School of Salamanca’ developed the first general theory of value, embracing both goods and money, and accommodated traditional Catholic natural law teaching to an economic doctrine more appropriate to the needs of a developing commercial society.
Such is the similarity between scholastic thought and late nineteenth-century economic theory that it would not be inaccurate to say that there is a continuous stream of subjectivist economics that runs from the thirteenth-century to Carl Menger and the Austrian School of economics, and that the obsession with an objectivist labor costs theory of value in ‘classical’ economics was a quite unnecessary and time-consuming detour. In his History of Economic Analysis, Joseph Schumpeter, who was one of the first writers to recapture scholastic economics for the modern world, wrote that all that was missing from the scholastic doctrine was the concept of the margin.[7] It was also Schumpeter who saw that the Catholic natural law philosophy was basically utilitarian and concerned with justifying human institutions, such as property, on public interest grounds, and that the concept of ‘reason’ for the later schoolmen was ‘sociological’ rather than abstract. Reason’s object was to trace out regularities that are revealed when men are left to their natural inclinations.
In addition to Schumpeter, the work of Raymond de Roover and Marjorie Grice-Hutchinson has pioneered in rehabilitating scholastic economics.[8] From their work it is clear that, although there were elements of cost of production theories in scholastic economics, the dominant view (which can be traced from Aristotle to St. Augustine through to St. Thomas Aquinas) interpreted the value of a good not as something that inhered in the thing itself but as a product of ‘common estimation’ or subjective opinion, and of the thing’s perceived scarcity. Thus the ‘just’ price was the competitive price that emerged from the interaction of subjective supply and demand. As Diego de Covarrabias (1512-1572) put it: “The value of an article does not depend on its essential nature but on the estimation of men, even if that estimation be foolish. Thus in the Indies, wheat is dearer than in Spain because men esteem it more highly, though the nature of the wheat is the same in both places.”[9] The ‘ethical’ element in the theory related not to a moralistic idea that price ought to equal labor cost but to the argument that the ‘just’ price would emerge only under conditions of more or less perfect competition (the schoolmen were in fact strident critics of monopoly), and where there is no deceit, fraud, or force. One reason why the schoolmen were reluctant to embrace a cost of production theory rather than a subjectivist theory was that it would actually give merchants an excuse to raise prices above their market-clearing level and would therefore exploit consumers.
Molina: The Market & Natural Law Ethics
The earliest exponents of subjectivism were Buridan (1300-1358), Saravia de la Calle (c. 1540) and Domingo de Soto (1495-1560); but the clearest expositor of the competitive view was the Portuguese Jesuit Luis de Molina (1535-1600). Molina, of the School of Salamanca, also showed an advanced analytical understanding of competition.[10] The achievement of those writers was to mitigate the moralizing element in Catholic social science and to show that the customary practices of trade were not against ‘nature.’
The School of Salamanca was similarly successful in breaking out of moral theology in its theory of money. While Jean Bodin (1530-1596), the French political theorist, is normally credited with the first formulation of the quantity theory, it is now clear that this originated with the Spanish schoolmen. Influenced by the rise in the price level in Spain brought about by the influx of gold and silver from the New World, the Dominican Martin de Azpilcueta (1493-1587), wrote in 1556 that “money is worth more where and when it is scarce that where and when it is abundant.”[11] Once again, however, it was Molina who systematically placed the explanation of the value of money within the general theory of value and developed a theory of foreign exchange that anticipated the purchasing power parity doctrine. An important consequence of this latter point was that profits on exchange dealings between foreign currencies were adjudged to be not usurious and therefore not contrary to natural law. Molina also showed that the value of money was necessarily inconstant and that to “control it would do a great deal of harm to the republic”;[12] therefore its value ought to be left to vary freely.
Of course, to say that important elements of modern value theory were contained in scholastic theory does not make these economists classical liberals. Although the just price was the market price there is ample justification in natural law for the suspension of the market and for the public regulation of prices, especially in famines and emergencies. De Roover concedes that since scholastic doctrine authorizes interference with the market to protect buyers and sellers this could license a wholesale suspension of the competitive system.[13] Certainly, scholastic economic theory was too closely linked with ethics and natural law to produce a systematic theory of the self-regulating market order. In her later work, Marjorie Grice-Hutchinson claims that a theory of the general harmony of the market order was absent from the sixteenth-century Spanish scholastics and does not appear until 1665 with the work of Francisco Centani.[14]
It is important to note, however, that two eminent scholars, Schumpeter and Hayek, both regard Molina’s social theory as a natural law doctrine which looks forward not to seventeenth-century rationalism but to the theory of spontaneous order. Molina’s economics is an investigation of nature, in the sense of there being sequences of events which would occur “if they were allowed to work themselves out without further disturbance.”[15] Here the maxims of natural law appear to be less the dictates of an unaided reason than the implications of a benign nature.
It is with the emergence of the common law in England that the scholastic hints at an anti-rationalistic natural law are transformed into a substantive jurisprudence. The outstanding figure here is Sir Matthew Hale (1609-1676); for in his argument for the common law he specifically claimed that it possessed a greater inner wisdom and rationality than the anti-traditionalist and a priori theories of law precisely because it accommodated facts and circumstances unavailable to the unaided reason. In explicating this argument, he inaugurated a tradition of jurisprudence which we normally associate with Adam Smith and Edmund Burke and, in the present day, Hayek. The major contention of these writers is that genuine law is, in some sense or other, discovered rather than made.
Hale’s important argument against rationalism in the law is in the form of a reply to Hobbes’ Dialogue of the Common Laws and is conveniently reprinted in the fifth volume of Sir William Holdsworth’s History of English Law.[16] Among Hale’s other works is the History of the Common Law, published in 1715, in which he continues the style of argument found in the reply to Hobbes.
Hale contra Hobbes: On Reason & Sovereignty
Hale’s Reflections on Hobbes’ system are in two parts: one dealing with the role of reason in the law and the other consisting of a critique of the Hobbesian version of sovereignty.
In the first part on reason and the law Hale clearly adumbrates an empirical and historical view of the law. No body of existing law can be constructed by pure abstract reasoning because the immense complexity of a legal process makes it impossible to represent its elements in a few simple maxims. The understanding of law therefore requires an ‘artificial’ reason, not the abstract syllogistic reasoning of the philosophers. Rationalism must fail because law requires the application of general principles to particular cases and this depends largely upon experience. It is because the law must be predictable and certain that there is a presumption in favor of experience and what is known. In anticipating an argument later made famous by Hayek, Hale maintains that because of our ignorance we are thrown back on experience and that it is better to rely on a body of stable and known rules “though the particular reason for the institution appear not.”[17] Furthermore, in a conservative attack on ill-thought out legal reforms, Hale likened a social order to an organic entity which could suffer unanticipated damage to its component parts if pure reason were to be the criterion for innovation. This is so because the mind cannot comprehend the totality of a social order, which is itself the product of many minds. He argues that “it is a reason for me to preferre a Lawe by which a Kingdome hath been happily governed four or five hundred yeares than to adventure the happiness and Peace of a Kingdome upon Some new Theory of my owne…..”[18]
In his reply to Hobbes on sovereignty Hale wished to show that Hobbes’ definition in politically absolutist terms was both inapplicable to English conditions and inexpedient. While he admits that only the king and parliament can make law “properly so-called,” the courts “have great weight and authority in expounding, declaring and publishing what the law of this kingdom is…..”[19] The concession to the sovereignty thesis is more apparent than real for his observation that only the king and parliament may make new laws is immediately qualified by a long argument to show that this power is limited by natural law and expediency. He explicitly ties in the ‘law’ with traditional liberty and property and maintains that the “obligation of Naturall Justice bindes Princes and Governors.” The greatest flaw in the sovereignty model is that it sees law exclusively in terms of enactment.
In fact, it is almost certainly the case that Hale misunderstood Hobbes’ argument about sovereignty. Hale meant by the sovereign the power of the king, and it was easy for him to show, that the king was limited by morality and the existing law. However, Hobbes meant by his sovereignty theory that in any legal system there must be a supreme body, which could logically take any form, which is the author of all law, and which itself cannot be bound or limited by any law. Thus to speak of an unlimited sovereign in this sense as being subject to natural law would be self-contradictory.
Indeed, the concept of ‘parliamentary sovereignty’ did develop in this way and this poses problems for anti-constructivist, evolutionary theories of law: for it is the unplanned emergence of an all-powerful parliament which in Britain has done so much to undermine the common law itself. While it would be absurd to censure Hale on this score it is important to note the implications of extreme versions of his traditionalism. For extreme traditionalism may well commit the social theorist to the acceptance of institutions that have survived a particular historical process merely because they have survived, even though ‘reason’ may indicate their inappropriateness for the liberal order.
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