Hayek and Hazlett - Law, Anarchy and Subsidiarity

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This discussion is only 2 minutes 45 seconds. But in it, Hayek and Hazlett enter into a penetrating exchange--one I think gets to the heart of an important debate among classical liberals. I don't hope to settle that debate today, but I do hope to expand on its framing.

The question is: should rules in the Hayekian sense be designed? Or should they evolve through processes of human interaction and private resource allocation? The answer to this question helps determine, in some sense, whether one is a "minarchist" or "anarchist." 

The former believes that the rule of law must be designed and enforced in order to give rise to the kind of spontaneous socio-economic order Hayek envisions. The latter believes rules too can arise from the bottom up -- that anarchy is not lawlessness, but a result of contract-based, emergent law.

Consider the work of Bruce Benson who makes a forceful anarchist argument for naturally evolved law in his book, The Enterprise of Law. Benson cites numerous historical examples that illustrate his basic thesis: private law is possible. Thus, Benson's is not just an a priori argument. His examples range from ancient laws of the sea, to the Law Merchant of international traders and Anglo-Saxon law (the latter which formed the basis of English Common Law). Even if, like Hayek, you are skeptical of emergent law, you will be richly rewarded reading The Enterprise of Law.

For all his libertarian instincts, Hayek is still committed to the idea of legal or constitutional design and enforcement. As he suggests in the video, Hayek believes that the rule of law requires consistency, so that larger swaths of people in a territory share a ruleset. In common parlance -- they're using the same social operating system. I would also submit that when legal orders emerge, they can emerge as a negative spontaneous order--which I suppose is no different from the possibility that a designed constitutional order can be corrupted.

Is there a way to split the difference? I would suggest panarchy might be a way. More on this later.

Note: Hayek alludes to a subsidiarity rule - federalism - near the end of the clip that I believe is a most pragmatic way to foster legal experimentation in the absence of pure emergent law. Local units would therefore "compete with each other for citizens."

Comments

[Gian Piero de Bellis]

I think that, as far as norms as are concerned, even when somebody favours so-called personal laws he/she is aware and accepts the existence of universal principles (reciprocal respect, non-aggression, etc.)
In my opinion we should articulate the discourse about norms in such a way as to include:
- universal principles (ethica: existence) [the World Cosmopolis]
- local customs (historica: experience) [the Voluntary Communities]
- specific-general rules (practica: expedience) [the Free Individuals]

This is what I tried to express in my essay From state policing to community righting.