The Social Basis of Ultimate Legal Rules: Hayek Meets Hart

Abstract

The bulk of the legal literature that either builds on or criticizes Hayek focuses on Hayek’s work specifically devoted to law, in particular to the rule of law and to the common law. I aim to show that there is jurisprudentially valuable insight to be gained by reflecting on Hayek’s other work. I provide here a sketch of a synthesis of Hayek’s thought with the current standard framework in general theory (philosophy) of law, that of H. L. A. Hart. I begin by presenting the outlines of Hart’s model of the foundations of law with the ultimate rule of recognition at its core. Then, I explore two Hayekian themes which shed light on the foundations of law as understood by Hart. First, I consider the rule of recognition as an implicit (unconscious) social rule and a Hayekian spontaneous order. Second, I turn to Hayek’s discussion of ‘common opinion’ on which every official practice of law relies and argue that it should be seen as complimentary with Hart’s model. Finally, I provide an illustration of how Hayekian insights can improve a Hartian account of one of the topical debates in US constitutional law – that of the merits of positive originalism.