About Friedrich August von Hayek’s political philosophy in light of research on the economic efficiency of common law

Abstract

The goal of this paper is to evaluate Friedrich August von Hayek’s political philosophy through the prism of the research on the economic efficiency of common law conducted within Law and Economics. One of the assumptions of Hayek’s political philosophy was the thesis about the optimizing character of cultural evolution. According to this thesis legal rules which have arisen spontaneously are economically efficient and thereby do not need to be corrected by the legislator. This thesis was thoroughly analysed by the Law and Economics scholars (notabene not inspired directly by Hayek’s philosophy), and these analyses are critically discussed in this paper. The results of these analyses are not unambiguous; nonetheless, they seem to undermine Hayek’s assumption about the optimizing character of cultural evolution. This fact affects the assessment of Hayek’s normative postulates; in particular, it justifies scepticism towards his critique of legislative activity.