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The Social Basis of Ultimate Legal Rules: Hayek Meets Hart

Barczentewicz, Mikolaj (2018) The Social Basis of Ultimate Legal Rules: Hayek Meets Hart In: Exploring the Political Economy & Social Philosophy of F.A. Hayek. Rowman & Littlefield. ISBN 9781786605634

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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 ultimaterule ofrecognition at itscore. Then,Iexploretwo 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 beseen ascomplimentary 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.

Item Type: Book Section
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
NameEmailORCID
Barczentewicz, Mikolajm.barczentewicz@surrey.ac.uk
Editors :
NameEmailORCID
Boettke, Peter J
Lemke, Jayme
Storr, Virgil
Date : August 2018
Copyright Disclaimer : Copyright 2018 Rowman & Littfield International
Related URLs :
Depositing User : Melanie Hughes
Date Deposited : 09 Aug 2018 11:28
Last Modified : 09 Aug 2018 11:28
URI: http://epubs.surrey.ac.uk/id/eprint/848884

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