Even Laws

Written by Ben Siler on October 28th, 2009

I was attracted to the third quote Randy posted because it didn’t sound very Hayeky: “Law is…to consist of abstract rules which make possible the formation of a spontaneous order by the free action of individuals through limiting the range of their actions,” but not to be “the instrument of arrangement or organization by which the individual is made to serve concrete purposes.” Hayek usually stays far away from these statements about the essences of things (unlike the Cartesians he challenges, he did not believe that law had been consciously developed at the dawn of civilization, and that we could therefore discover its true nature by reverse engineering it). When we put the quote in context, we see that Hayek is contrasting his views with those of Carl Schmitt, and so what seems to be a claim about the necessary essence of law is really an examination of two different viewpoints.

Of course, all this leaves the bigger question unanswered: are the best kinds of laws “abstract rules” that limit individual actions? I think it’s important to note that there are laws that fall between those actually abstract rules Hayek probably wants (the sort of laws that simply keep an individual from violating another individual’s freedom) and conscious engineering. As an example, take New York State’s law banning trans fats in restaurants. This law was not abstract, and it certainly aimed toward a “concrete purpose,” but it was applied equally across the board in that anyone who wanted to serve food had to obey it. This law was hard on restaurants and their suppliers; the reason trans fat is so popular in food production is that it is solid at room temperature. Transporting and processing non-trans fats requires new equipment and organizations. Here’s my question, then: can we call this law the cause of creative destruction? Like an innovation, it obsoleted a method of production over night. If we can agree that trans fats are bad, but that creative destruction is not, does this mean that the New York Law was a good thing? Can we create more laws that aim creative destruction, or was this one just a fluke?



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