Sandefur on Hayek

In our exchanges, Timothy Sandefur has indicated that he doesn't regard Hayek as the best representative for libertarian thought. He refers to a post of his from last year summarizing his criticisms of Hayek. Actually, I agree with him on this. I make some similar criticisms in Darwinian Conservatism (pp. 20-26).

My main point is that we need to explain social order as the product of three kinds of order: natural order, customary (or habitual) order, and rational (or deliberate) order. Hayek's stress on custom--"between instinct and reason"--as the ultimate source of order goes too far in elevating social tradition over natural propensities and deliberate judgments. So, for example, while he is right to stress the customary character of common law, he fails to give enough weight to the way in which common law had to be altered by deliberate judgments of judges and lawmakers.

This trichotomy of order is clear in property law--as I indicate in chapter 4 of Darwinian Conservatism--where we need to see three levels of property law: natural property, customary property, and formal property.