Spontaneous Order, Cooperation, and Theft

Every time I read something new by F. A. Hayek I find that he has developed and clarified vague ideas I have been wrestling with, and extended those ideas to new levels in their logical evolution. The Fatal Conceit is no exception. I noticed the close link between religion and the establishment of rules of obligation, for instance,¹ but I failed to recognize the vital role religion played as the “guardian of tradition.” Hayek recognized and explains it in The Fatal Conceit.

This book is obviously another in a long series of important books by F. A. Hayek, for me and for anyone who wishes to understand how civilization and order actually have developed. Without doubt, it will stimulate a series of follow-up writings by those who agree with him and those who do not. To illustrate, I shall sketch four specific issues that might attract further discussion and/or clarification.

First, Hayek correctly notes that socialists fail to perceive the indispensable role of rules of obligation (e.g., private property, contract) in shaping and preserving the extended order. Rather, he suggests, socialists believe that the attitudes and emotions that are appropriate to behavior in small groups (e.g., solidarity, altruism) should also be sufficient to shape an extended order. This argument may imply that rules of obligation are not necessary for order within small groups, but that is not so. Order among small primitive kinship groups involved well established systems of individual rights and private property, for example.² And customary rules of obligation even characterize relationships between the immediate members of a family. Lon Fuller describes customary law as a “language of interaction” and notes that there is a spectrum of interactions ranging from intimacy (e.g., family relations) through relationships between friendly strangers (e.g., commercial relationships) to hostility.³ The entire spectrum involves rules of obligation but those rules vary considerably depending on the nature of the interactions involved. Nonetheless, “the family could not function without . . . tacit guidelines to interaction; if every interaction had to be oriented afresh and ad hoc, no group like the family could succeed in the discharge of its shared tasks.”⁴ These tacit guidelines clearly include individual rights and responsibilities. Thus, Hayek’s discussion may be somewhat misleading if one concludes that small groups do not require traditional rules of obligation.

Second, Hayek asks how the rules of obligation necessary for the extended order could be passed on from generation to generation, and suggests the paramount role of religion as an answer. ⁵ Undoubtedly, he is correct, but there is another factor that is at least as important, if not more so—the ever present self-interest motive. Individuals require incentives to become involved in the legal process. Incentives can be negative (e.g., the use of government coercion or the fear of supernatural punishment through religion) or positive. Voluntary recognition of law and reciprocal arrangements for law enforcement are likely to arise only when substantial benefits from doing so can be internalized by individuals. Protection of personal property and individual rights is a positive inducement to recognize the rules of obligation and participate in the process of justice in customary law systems. Indeed, the participatory character of law enforcement in customary law systems explains, to a large extent, why private property rights were the basic rules of obligation.⁶ Individuals’ incentives to recognize the law and participate in its enforcement would not have been nearly so strong under any other arrangement⁷ (e.g., communal ownership, altruism), regardless of the nature of religious sanctions. Over one hundred utopian communes, many religion-based, established legal systems in the United States during the nineteenth century, for example. They failed because they suppressed the private property rights that would have provided the basis for recognition of such law.⁸

Third, the fallacies Hayek identifies in the socialists’ “logic” actually characterize a much larger group. Anyone who believes that government can improve on the market order, including modern “liberals” and conservatives, implicitly accepts the socialist logic. Thus, Hayek’s attack is more broadly against those who support a strong central government, many of whom would vehemently deny a socialist label.

Fourth, suppose that socialists accepted Hayek’s argument that order results from spontaneous evolution of traditions and practices, and that relatively efficient traditions and practices tend to be adopted. They might then note that the traditions and practices associated with a strong central government have clearly evolved to limit and in many ways replace the market system, so it follows that government is a relatively efficient source of order! This “extension” of Hayek’s argument is wrong, of course, but it is not countered in The Fatal Conceit. One way to illustrate its fallacy is to note that the institutions of government have a very different purpose than the institutions that develop to support the evolving traditions and practices of the extended order. The purpose of those traditions and their accompanying institutions was to facilitate voluntary interaction. The purpose of government is to facilitate (or prevent) involuntary transfers.⁹ The first function of kingships in England, for example, was warfare. As the kings developed other functions such as internal law-making and law-enforcement the purpose was clearly to transfer wealth between groups within the kingdom, and in particular to those with political (i.e., military) power, including the king. ¹⁰ The earliest royal changes in English customary laws created fines and the royal right to confiscate property, for instance, and the earliest royal judges were tax collectors since “justice” was a major revenue source. Modern institutions of government evolved from those established by kings to facilitate transfers, so the fact that government has taken over to the extent it has, even as Western democracies evolved from kingships, does not reflect the superior efficiency of government in making and enforcing laws to facilitate interaction. Rather, it reflects government’s increasing efficiency in facilitating transfers to those with political power. Now it is vested interest groups that benefit from the transfers rather than kings and their supporters, but the basic function of government is the same. Indeed, while establishment and enforcement of customary rules of obligation promote order, the adversarial nature of government law, pitting group against group, promotes disorder. The belief that the true function of government can be changed to one that promotes “social welfare” is simply one more aspect of the The Fatal Conceit.

Notes

¹Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law Without Government,” The Journal of Libertarian Studies 9 (Winter 1988): forthcoming; and Liberty and Justice: Alternatives to Government Production of Law and Order (San Francisco: Pacific Research Institute, forthcoming).

²Ibid.

³Lon Fuller, The Principles of Social Order (Durham, NC: Duke University Press, 1981) p. 239.

⁴Ibid., p. 241.

⁵The Fatal Conceit, Chapter 9.

⁶Benson, “The Spontaneous Evolution of Commercial Law,” Southern Economic Journal 55 (January 1989): forthcoming; and “Enforcement of Private Property Rights in Primitive Societies.”

⁷Ibid.

⁸Benson, Liberty and Justice.

⁹Ibid.

¹⁰Ibid.