Hayek, or the Recursive Model of the Rule of Law

What Friedrich A. Hayek sought with his three volumes of Law, Legislation and Liberty was to propose a legal-political system in which the Rule of Law principle would not be de facto replaced by the rule of men through laws (Rule by Law).

To do this, he built a recursive model of a legal system whose initial conditions were the legal customs as the only source of law. Thus, in such a system, the rule of recognition  –in the sense of H.L.A. Hart’s concept– would initially regard the customary law as the only set of rules to be enforced by the government.

In the said model of legal system, the law is separated from the state, which enforces the former and legitimises itself by that enforcement. Sovereignty resides in the law and the state is its agent and executor – but, without the said enforcement, the customary law -the initial condition of the recursive model- would only be natural law.

From a genealogical point of view, in Middle Ages monarchs were entitled as rulers by a law of succession derived from customary norms and it is from that mediaeval period that the term “Rule of Law” comes: Since their prerogative of ruling had come from legal customs, the rulers had the moral duty of enforcing them – which, in turn, acted as a limit to the power of the rulers, or at least to their legitimacy.

Evolutionarily, the administration of public affairs -as related by Max Weber in his General Economic History– ceased to be in the hands of wise men and mandarins, advisers to the monarchs, to become a matter managed by jurists, who incorporated for the decision-making and its justification the procedures and figures of private law: the social contract, the commission, decisions based on evidence, etc.

Such evolutionary emergence of the public law set new boundaries to the legitimate use of power by the rulers, in many occasions needing a written document to warrant them, such as the Magna Carta, the Bills of Rights or the declarations inserted in the Modern constitutions.

Consequently, successive layers of legality were added to the initial conditions of Hayek’s model of political legal system: constitutional laws, declarations of rights, principles and guarantees, procedural laws and statutes. It was these same legal concepts of private law that allowed giving a legal foundation to the nascent republics of the Late Middle Ages, for example, the legal figures of association, representation, etc..

However, Hayek already complained in The Constitution of Liberty –and later in Law, Legislation and Liberty again- about the consequences of the sovereignty of parliaments, that is, the competence of the legislative chambers to enact laws, replacing legal customs. It was the principle of popular sovereignty that rendered obsolete the principle according to which customary law acted as a limit to the rulers separated from the people, since the people went on to govern themselves and make their own laws.

This emancipatory narrative -in terms of Jean Francois Lyotard- collides with the evidence that, on numerous occasions, we do not obtain in return the Rule of Law but rather the rule of men through laws emanating from political will. Consequently, the path is open for critics of the Rule of Law to denounce its inconsistencies: a government of laws created by the rulers themselves is a mere masking of the political will, which is not legitimated by law but by the pure imposition of the force.

That is why the ultimate message of Hayek’s legal and political works consists of a sort of return to initial conditions of his model of relations between law and politics: legal norms are ineffective without the enforcement provided by the public force, but the process of creating them can be disentangled from that enforcement.

Of course, the choice by the political system on which norms to enforce -that is, the enunciation of a rule of recognition- can mean in itself an act of creation of law; but if, on the other hand, a constitutional system foresees the separation of the legislative functions from the functions of government, obliging the latter to enforce the laws emanating from the former, the distinction between the Rule of Law over the rule of the men is restored.

As Hayek himself recognized in his work, his proposal to create two separate assemblies, one legislative and the other governmental, is not really a proposal intended to be put into practice, but rather an ideal model that exemplifies a concept that is as fundamental as it is abstract and elusive: the separation between law and political power.

Beyond the feasibility of Hayek´s model, it does provide a demarcation criterion between liberal democracy and authoritarianism: the one that indicates that the main duty of a government towards its citizens is to enforce the rules of peaceful coexistence that respect the so-called fundamental rights, such as life, personal liberty and property, and that any program of social transformation or economic development can never justify their abrogation. Thus, any rulers who do not take into account such institutional restrictions to their policies would be involved in a true road to serfdom.

A few words — and many quotations – about the influence of Ludwig Wittgenstein on Friedrich Hayek

In a brief autobiographical note, Friedrich Hayek refers to the influence he had received in his younger years from both his teacher Ernst Mach and his distant cousin Ludwig Wittgenstein:

But I did, through these connexions, become probably one of the first readers of Tractatus when it appeared in 1922. Since, like most philosophically interested people of our generation I was, like Wittgenstein, much influenced by Ernst Mach, it made a great impression on me.”

F. A. Hayek – Remembering My Cousin, Ludwig Wittgenstein

This can be seen in the analytical rigor present in his essays published in the 1920s and in his book Monetary Theory and the Trade Cycle (Geldtheorie und Konjunkturtheorie) (1929), translated by N. Kaldor and H. M. Croome from the German. However, such influence was not exclusively limited to Hayek’s youth. He was also present in the conception and writing style of The Sensory Order, published in 1952, and Law, Legislation and Liberty, the first volume of which, Rules and Order, was published in 1973.

From my point of view, the following aphorism of the Tractatus Logico-Philosophicus is the one that best allows us to appreciate the reflection of said work in Hayek:

4.12 „Der Satz kann die gesamte Wirklichkeit darstellen, aber er kann nicht das darstellen, was er mit der Wirklichkeit gemein haben muß, um sie darstellen zu können -die logische Form.

Um die logische Form darstellen zu können, mußten wir uns mit dem Satze außerhalb der Logik aufstellen können, das heißt außerhalb der Welt.“

Which could be translated as follows:

4.12 “The proposition can represent the whole of reality, but it cannot represent what it must have in common with reality to be able to represent it – the logical form.

To represent the logical form, we should have to be able to station ourselves with the proposition somewhere outside the logic, i.e.: outside the world.”

This statement about the limits of representation later finds its correlation in the following aphorisms from Hayek’s The Sensory Order, about the limits of knowledge and of the transmission of information:

8.14. While there can thus be nothing in our mind which is not the result of past linkages (even though, perhaps, acquired not by the individual but by the species), the experience that the classification based on the past linkages does not always work, i.e., does not always lead to valid predictions, forces us to revise that classification (6.45-6.48). In the course of this process of reclassification we not only establish new relations between the data given within a fixed framework of reference, i.e., between the elements of given classes: but since the framework consists of the relations determining the classes, we are led to adjust that framework itself.

Note that if there is something that “does not always work,” then we are confronted with the limits to our representation. I think that the said “framework of reference” could play the role of the “logic form” and what Hayek is describing here is the dynamics of a negative feedback process.

8.18. The new experiences which are the occasion of, and which enter into, the new classifications or definitions of objects, is necessarily presupposed by anything which we can learn about these objects and cannot be contradicted by anything which we can say about the objects thus defined. There is, therefore, on every level, or in every universe of discourse, a part of our knowledge which, although it is the result of experience, cannot be controlled by experience, because it constitutes the ordering principle of that universe by which we distinguish the different kinds of objects of which it consists and to which our statements refer.

Here, the subject, instead of being outside the world is inside another universe of discourse.

8.67. Apart from these practical limits to explanation, – which we may hope continuously to push further back, there also exists, however, an absolute limit to what the human brain can ever accomplish by way of explanation—a limit which is determined by the nature of the instrument of explanation itself, and which is particularly relevant to any attempt to explain particular mental processes.

Nevertheless, there are certain universes of discourse that human beings can never access to -so, they are outside their world.

8.69. The proposition which we shall attempt to establish is that any apparatus of classification must possess a structure of a higher degree of complexity than is possessed by the objects which it classifies; and that, therefore, the capacity of any explaining agent must be limited to objects with a structure possessing a degree of complexity lower than its own. If this is correct, it means that no explaining agent can ever explain objects of its own kind, or of its own degree of complexity, and, therefore, that the human brain can never fully explain its own operations. This statement possesses, probably, a high degree of prima facie plausibility. It is, however, of such importance and far-reaching consequences, that we must attempt a stricter proof.

Here, Wittgenstein’s logic form delimits the said structures of a higher degree of complexity which the subject given in a simpler universe of discourse could never trespass.

8.81. The impossibility of explaining the functioning of the human brain in sufficient detail to enable us to substitute a description in physical terms for a description in terms of mental qualities, applies thus only in so far as the human brain is itself to be used as the instrument of classification. It would not only not apply to a brain built on the same principle but possessing a higher order of complexity, but, paradoxical as this may sound, it also does not exclude the logical possibility that the knowledge of the principle on which the brain operates might enable us to build a machine fully reproducing the action of the brain and capable of predicting how the brain will act in different circumstances.

8.82. Such a machine, designed by the human mind yet capable of ‘explaining’ what the mind is incapable of explaining without its help, is not a self-contradictory conception in the sense in which the idea of the mind directly explaining its own operations involves a contradiction. The achievement of constructing such a machine would not differ in principle from that of constructing a calculating machine which enables us to solve problems which have not been solved before, and the results of whose operations we cannot, strictly speaking, predict beyond saying that they will be in accord with the principles built into the machine. In both instances our knowledge merely of the principle on which the machine operates will enable us to bring about results of which, before the machine produces them, we know only that they will satisfy certain conditions.

Thus, the knowledge of the principle enables us to build an abstract machine such as language, the price system, or the law, in order to form expectations of future human actions. Since such abstract machine would be built using the knowledge of the principle, it would not be deliberated designed but grown from the experience.

While Ludwig Wittgenstein confronted the subject of knowledge against the limits of the conceptual representation and threw him into the silence and into the realms of mysticism, Friedrich Hayek, on the other hand, chooses to place the said limit instance in an order of discourse more complex than the human mind, which could be the market, the language itself, or the extended society.

For Hayek, the social order works as an abstract machine, which continuously processes information and appears in the event horizon of the subjects to confirm or readjust their own classificatory systems. These classificatory systems that, in an abstract plane, each individual has and that are in a continuous process of readjustment based on the novelties that come from the spontaneous order, are abstract but, at the same time, empirical.

Among such abstract orders are the normative systems and the first volume of Law, Legislation and Liberty is devoted to their study.

‘Learning from experience’, among men no less than among animals, is a process not primarily of reasoning but of the observance, spreading, transmission and development of practices which have prevailed because they were successful-often not because they conferred any recognizable benefit on the acting individual but because they increased the chances of survival of the group to which he belonged. The result of this development will in the first instance not be articulated knowledge but a knowledge which, although it can be described in terms of rules, the individual cannot state in words but is merely able to honour in practice. The mind does not so much make rules as consist of rules of action, a complex of rules that is, which it has not made, but which have come to govern the actions of the individuals because actions in accordance with they have proved more successful than those of competing individuals or groups.”, Chap. 1, Reason and Evolution

Here we find a process of natural selection of rules of conduct, thus, provided not by representational reason, but from experience.

The first of these attributes which most rules of conduct originally possessed is that they are observed in action without being known to the acting person in articulated (‘verbalized’ or explicit) form. They will manifest themselves in a regularity of action which can be explicitly described, but this regularity of action is not the result of the acting persons being capable of thus stating them. The second is that such rules come to be observed because in fact they give the group in which they are practised superior strength, and not because this effect is known to those who are guided by then. Although such rules come to be generally accepted because their observation produces certain consequences, they are not observed with the intention of producing those consequences-consequences which the acting person need not know.  Chap. 1, Reason and Evolution

Here we find a concept that Hayek will use extensively along the rest of Law, Legislation and Liberty, the articulated and the unarticulated. In the terms previously used in The Sensory Order, the unarticulated is what belongs to another universe of discourse, of a more complex level.

The process of a gradual articulation in words of what had long been an established practice must have been a slow and complex once the first fumbling attempts to express in words what most obeyed in practice would usually not succeed in expressing only, or exhausting all of, what the individuals did in fact take into account in the determination of their actions. The unarticulated rules will therefore usually contain both more and less than what the verbal formula succeeds in expressing. On the other hand, articulation will often become necessary because the ‘intuitive’ knowledge may not give a clear answer to a particular question. The process of articulation will thus sometimes in effect, though not in intention, produce new rules. But the articulated rules will thereby not wholly replace the unarticulated ones, but will operate, and be intelligible, only within a framework of yet unarticulated rules. Chap. IV, The Changing Concept of Law

Thus, the process of articulation of new rules is not a labor of creation of new ones, but of discovering them through the limits of the universe of discourse of the individuals.

The contention that a law based on precedent is more rather than less abstract than one expressed in verbal rules is so contrary to a view widely held, perhaps more among continental than among Anglo-Saxon lawyers, that it needs fuller justification. The central point can probably not be better expressed than in a famous statement by the great eighteenth-century judge Lord Mansfield, who stressed that the common law ‘does not consist of particular cases, but of general principles, which are illustrated and explained by those cases’. What this means is that it is part of the technique of the common law judge that from the precedents which guide him he must be able to derive rules of universal significance which can be applied to new cases.

The chief concern of a common law judge must be the expectations which the parties in a transaction would have reasonably formed on the basis of the general practices that the ongoing order of actions rests on. In deciding what expectations were reasonable in this sense he can take account only of such practices (customs or rules) as in fact could determine the expectations of the parties and such facts as may be presumed to have been known to them.

And these parties would have been able to form common expectations, in a situation which in some respects must have been unique, only because they interpreted the situation in terms of what was thought to be appropriate conduct and which need not have been known to them in the form of an articulated rule. Chap. IV, The Changing Concept of Law

Here, “rules of universal significance” should be understood as knowledge of the principle. The general practices denote that the said order, despite of being abstract, is, nevertheless, empirical. The common expectations are readjusted through a process of articulation of rules which redefine the universe of discourse of the individuals of a given community or society.

This conception of rules allows us to a better comprehension of the notion of natural rights, since they are empirical, despite their enforcement:

Whether we ought to call ‘law’ the kind of rules that in these groups may be effectively enforced by opinion and by the exclusion from the group of those who break them, is a matter of terminology and therefore of convenience. For our present purposes we are interested in any rules which are honoured in action and not only in rules enforced by an organization created for that purpose.

It is the factual observance of the rules which is the condition for the formation of an order of actions; whether they need to be enforced or how they are enforced is of secondary interest. Factual observance of some rules no doubt preceded any deliberate enforcement. The reasons why the rules arose must therefore not be confused with the reasons which made it necessary to enforce them. Chapter V. Nomos: The Law of Liberty.

Finally, despite being the enforcement of natural rights a matter which depends upon a political decision, the authority is a subsystem inside of the same level of discourse of the individuals of the same political order. Thus, the political authority could not trespass the limits of the knowledge of the said empirical order without consequences concerning its stability. It should deal with the rules which act as the framework of individual interaction using just knowledge of the principles, articulated in general and abstract rules. As we succinctly have seen, the youth influence of Ludwig Wittgenstein on Friedrich Hayek endured until the last books of the latter. I dare not say that the Tractatus encloses the clues of interpretation of the most intricated works of F. A. Hayek, but its reader will find some common ground upon which to build a more prolific interpretation of his legacy.

A Note on “Hayekian” Empirical Normative Systems

In the first volume of Law, Legislation and Liberty (1973), we will find the most daring theses of Friedrich Hayek regarding the problem between law and politics. Just as his economic work of the 1930s and 1940s had been, in his opinion, misunderstood by his colleagues; just as he was surprised to hear the fervent readers of The Road to Serfdom (1945) attribute positions to him that he had not exposed there; also his legal-political work triggered simplifying interpretations that conceal the main contributions, still relevant for this time.

In Norms and order –that is the title of that first volume- the author does not propose to abandon legislation and return to customary law, nor to replace the political decisions of the administration of state affairs by a government of judges. On the contrary, it is stated there with a clarity that leaves no room for doubt that the powers of the state must be organised and operate in accordance with the rules and procedures of public law, made up of legislative bodies endowed with rules with a clear teleological content.

On the other hand, the genuinely innovative thesis that Hayek exposes in the aforementioned volume consists in affirming that the interactions between individuals in the scope of their exchanges destined to cooperate freely and voluntarily in the coordination of their respective life plans are structured around a set of abstract rules –that is, lacking a specific purpose- and general rules whose observance could occur in practice without the need for a positive enunciation. It is for this reason that Hayek affirms that the law is not created, but discovered, and that it is not legislated, but rather evolves.

On this last point, John Gray at his time, many years after Hayek’s death, lamented that his former mentor had spent the last years of his life discussing pseudoscientific ideas around alleged evolutionary theories. However, such suspicion cannot fall in any way on the triptych of “Law, Legislation and Liberty” (1973; 1976 and 1979).

What is found in the said work is an express taking sides with a tradition of thought that extends from the Late Middle Ages, the Renaissance and the beginnings of Modernity: the school of natural law understood as something different from an ideal, derived from reason, about what should be, but to a set of normative beliefs effectively extended in a given population, which condition their behaviour, contribute to the formulation of a critical judgement about the value of actions and allow the formation of expectations about the expected behaviour of peers and, therefore, facilitate the ideation and coordination of individual plans.

For Hayek’s own epistemological conceptions, this tradition of thought acts as a kind of discovery mechanism on certain aspects of the legal phenomenon and the structural characteristics present in all human interaction and therefore his constant appeal to the history of ideas.

Hayek, in a peaceful and incontrovertible way for any specialist in the matter, syndicates Hugo Grotius as the initiator of the rationalist and idealist school of natural law, although holding him responsible, as he did, for the evolution of the identification of legislation as the only and exclusive source of law could be considered as an overly emphatic statement, which would abandon the very premises of cultural evolutionism to which Hayek himself adhered: if Grotius’ theses were so successful, it was largely due to the subsequent advent of the national states.

Although the truth is, however, that the characterization of Natural Law as a derivative of reason later allowed, in the 20th century, to receive from legal positivism the rejection of all Natural Law as “metaphysical”, thus leaving the formulation of the Law at the mercy of politics and, with it, in a serious crisis the very notion of “Rule of Law”.

It is for this reason that Hayek set out to rehabilitate the empiricist current of Natural Law, which seeks normative statements not in the derivations of reason, but in the discovery of notions about what could be considered right behaviour towards others through the investigation of patterns of behaviour actually observed in a given community that is structured around peaceful exchanges repeated over time.

The archetypal example of such kinds of normative structures given in practice, independently of their enunciation by any type of legislator, is represented by the communities of merchants: a repeated series of regular exchanges generates certain expectations about the conduct to be observed by the members of said group of merchants, which also allow to conceive and coordinate other business plans. For this reason, many times, conflicts between merchants are resolved through friendly settlers, or arbitrations, and judges resort to the opinion of specialised experts in a certain commercial area to dictate their decisions.

Such examples do not constitute proof that all law is spontaneous, but rather a powerful counterexample to the theses that hold, on the one hand, that legislation is the only possible source of law and those that, on the other, affirm that all law must be derived from reason.

Although both antithetical visions are synthesised in the figure of the rational legislator, whose legislative enunciations are derivatives of public reason, this in turn receives -in the first half of the 20th century and today- challenges from Realistic doctrines, which state that legislative activity is not a product of public reason, but of the exercise of political will.

It is in relation to this contest that Hayek plays the card of cultural evolutionism and of the legal system as a spontaneous order. In this sense “Law, Legislation and Liberty” is a new elaboration of “The Road to Serfdom”.

This theoretical controversy maintains its full validity to date: the confrontation that the predominant species of Liberalism, of an idealistic and rationalist nature, seems to be losing against Political Realism, which places political will above a system of human coexistence based on rules and not on discretionary decisions. In Hayek’s case, he sides with a rule-based political system, but what sets him apart from prevailing Liberalism is that such rules are not derived from reason, but rather emerge from experience.

This experience not only produces norms of just conduct to be discovered by the courts and enunciated by legislators, but it is also responsible for structuring the very apparatus for understanding such norms. It is for this reason that Hayek himself, in his book The Sensory Order (1952), called his particular philosophical vision “pure empiricism.”

Of course, an empiricist conception of Natural or Fundamental Rights – based on Adam Ferguson, David Hume and Edmund Burke, among others – is not exempt from difficulties, the main one being the task of identifying those empirical norms that effectively contribute to maintain a peaceful order of coexistence and provide them with the corresponding enforcement.

However, despite such difficulties, affirming that the existence of Natural Rights emerges from the experience that structure a peaceful order of coexistence and that they are the ones that legitimise the exercise of power and not vice versa, already constitutes in itself an affirmation worthy of being considered and, eventually, defended.

Some Monday Links

Not creepy social experimentation, *the* feudalistic space opera, and guilds

The emergence of spontaneous order (Panarchy)

An excerpt:

Individuals, from infants to old people, resent or fail to show any interest in anything initially presented to them through discipline, regulation or instruction which is another aspect of authority…Even temptation, the gentlest form of compulsion, does not work because human beings, even children, recognize carrots for what they ultimately mean; we have at least progressed beyond the donkey!

No, not Hayek, a bunch of physicians – same era, though

This comes from a report (Biologists in search of material, 1938) that summarized the findings of a social investigation “designed to determine whether people as a whole would, given the opportunity, take a vested interest in their own health and fitness and expend effort to maintain it” (the Peckham Experiment). The report was even covered in the prestigious Nature magazine.


I am a fan of the novel (of the dabbler kind, not a balls-out groupie) and hinted at it some time ago (the title of this comes from a Dune character, smuggler Tuek. Since I feel I have to explain it, the reference was either brilliantly subtle, or just lame).

The CHOAM conglomerate flag: Libertarian socialism with a liberal background? (colors per Wikipedia) – source

It contains more than a few pop-culture icons (and the inspiration for others), like the Sandworms, the stillsuits, the CHOAM, the Sardaukar and so on. Plus, a Greek staple: House Atreides, supposedly tracing back to this family, the source of Oresteia.

Will Denis Villeneuve Capture the Greatness of Dune? (National Review)

Dune Foresaw—and Influenced—Half a Century of Global Conflict (Wired)

The author, Frank Herbert, had one thing or two to say about Big Government, but my favorite is an inscription at the Emperor’s Palace, in the city of Corrinth (which gets its name from the ruling House Corrino, but also vaguely reminds of another Greek word). I still ponder its meaning:

Law is the ultimate science

House Corrino motto

One of the pillars of Dune society is the Spacing Guild, basically a monopolist of faster-than-light interstellar travel. Speaking of close ops:

Guilds of Florence: Rent-seeking, but with style – source

Review of Sheilagh Ogilvie, The European Guilds: An Economic Analysis (AIER)

The guilds generally stifled competition and promoted rent-seeking. The system fizzled out as liberal institutions – democracy, free markets – took hold.


  1. The anti-colonial revolution Adom Getachew (interview), Tribune
  2. Testing balance-of-power theory in world history (pdf) Deudney, et al, EJIR
  3. Hayekian balance-of-power theory (pdf) Edwin van de Haar, TIR
  4. Globalization and peace: A Hayekian perspective (pdf) Adrián Ravier, LP


  1. Keep government out Robin Hanson, Overcoming Bias
  2. Ending endless wars? Peter Henne, Duck of Minerva
  3. Atlas mugged, not shrugged Irfan Khawaja, Policy of Truth
  4. Twitter’s emergent order Andy Smarick, New Atlantis

Efficient markets as normative systems

Recently, I came across this outstanding interview with Eugene Fama published by The Market / NZZ. Besides the main subject discussed -the inability of central banks to control inflation-, the interview is intertwined with gripping assertions about the limits of knowledge, such as the following ones:

Bubbles are things people see in hindsight. They don’t identify them in advance. Sure, you can look at the behavior of prices, and you may be able to identify cases where they are too high. But if you only look back and say: «Oh, stocks went down a lot, so that was a bubble», then that’s 20/20 hindsight. At the time, there was no evidence that there was a bubble.

I don’t say markets are completely efficient, but they’re efficient for most questions that I address. Models are never a 100 % true. If they were, we would call them reality, not models. But for almost all purposes, market efficiency is a very good approximation.

The real question is: How do you pick Warren Buffett? The way you pick him is after the fact, since he has done very well. Now, suppose I take 100,000 investors and say: Let’s let them run for 30 years and pick out the winner. Because you roll the dice so many times, even if none of them is a good or bad investor, many investors will do well and many will do poorly purely by chance. Statistically there is also going to be a big winner, but solely due to chance. In other words: There will be extremely good outcomes and extremely bad outcomes, but you just can’t tell who is successful because of luck and who because of skill.

This quotations resemble the distinction made by Friedrich Hayek between relative and absolute limits to explanation (The Sensory Order, 1952):

8.67. Apart from these practical limits to explanation, which we may hope continuously to push further back, there also exists, however, an absolute limit to what the human brain can ever accomplish by way of explanation -a limit which is determined by the nature of the instrument of explanation itself, and which is particularly relevant to any attempt  to explain particular mental processes.

8.68. If our account of the process of explanation is correct, it would appear that any apparatus or organism which is to perform such operations must possess certain properties determined by the properties of the events which it is to explain. If explanation involves that kind of joint classification of many elements which we have described as “model-building”, the relation between the explaining agent and the explained object must satisfy such formal relations as must exist between any apparatus of classification and the individual objects which it classifies (Cf. 5.77-5.91).

5.90. The model building by such an apparatus of classification simplifies the task and extends the scope of successful adaptation in two ways: it selects some elements from a complex environment as relevant for the prediction of events which are important for the persistence of the structure, and it treats them as instances of classes of events. But while in this way a model building apparatus  (and particularly one that can be constantly improved by learning) is of much greater efficiency than could be any more mechanical apparatus which contained, as it were, a few fixed models of typical situations, there will clearly still exist definite limits to the extent to which such a microcosm can contain an adequate reproduction of the significant factors of the macrocosm.

8.69. The proposition which we shall attempt to establish is that any apparatus of classification must possess a structure of a higher degree of complexity than is possessed by the objects which it classifies; and that, therefore, the capacity of any explaining agent must be limited to objects with a structure possessing a degree of complexity lower than its own. […]

Being confronted with an absolute limit to explanation does not mean that chaos lies outside those limits. Indeed, what we have beyond the scope of our models is a complex order -in this case, efficient markets. A kind of order whose “[…] existence need not manifest itself to our senses but may be based on purely abstract relations which we can only mentally reconstruct” (F. A. Hayek, “Law, Legislation, and Liberty”, Chapter II; 1973), and because of that its explanation finds not practical limits but absolute ones. For example, in this field, “passive investing” would be homologous to a law-abiding behaviour or to the moral saying “being honest is the best policy”. Of course, for such systems -economic, legal or moral- to evolve there have to be some “prices”, i.e.: people who trade in the short term or who perform innovative behaviours which establish a new legal precedent or a new habit.

But for this innovation to happen it is indispensable for the agents to count on a framework of stable regularities -usually called abstract or spontaneous orders- upon which they could draw their own “maps”, create new expectations, and coordinate their plans with other agents. That indicates that we have already spent enough ink writing about the economic way of looking at the law, and perhaps it is time to start pondering markets as complex normative systems.


  1. The Fatal Conceit of F. A. Hayek (pdf) Larry Sechrest, Reason Papers
  2. Democracies are spontaneous orders, not states (pdf) Gus DiZerega, Cosmos+Taxis
  3. Empire: public good and bads (pdf) Coyne & Davies, Econ Journal Watch
  4. Bangladeshi colonies in space Asif Saddiqi, Los Angeles Review of Books

How much more progressive is the corporate world than academia?

Academia is a hotbed of leftism and has been for centuries. At the same time, it’s also one of the most conservative institutions in the Western world. I don’t think this is a coincidence. Leftists are conservative.

The recent writings of Lucas, Mary, and Rick have highlighted well not only academia’s shortcomings but also some great alternatives, but what about stuff like this? The link is an in-depth story on how senior professors use their seniority to procure sexual favors from their junior colleagues. There is, apparently, not much universities can do about it either.

If a manager within a corporation tried any of the stuff listed in the report, he or she would be fired immediately. Sexual harassment is still an issue in the corporate world, but it is much, much easier to confront than it is in academia. The same goes for government work. The President of the United States couldn’t even get away with a blow job from a teenage intern without dire consequences in the 1990s.

What makes academia so different from corporate and government work? Is it tenure? Is it incentives? In the corporate world profits matter most. In government, “the public” matters most. In academia, it’s publish or perish. I don’t think this has always been the case. I think the publish-or-perish model has only been around since the end of World War II. Something is horribly wrong in academia.

In the mean time: corporations, churches, governments (it pains me to say this, but it’s true, especially when compared with academia), and all sorts of other organizations continue to experiment with social arrangements that attempt to make life better and better.


  1. The end of history and the Last Map Nick Danforth, Foreign Policy
  2. The end of the nation-state? Parag Khanna, New York Times
  3. Reading colonialism in Parasite Ju-Hyun Park, Tropics of Meta
  4. A beautiful bit of small world mojo Rick Weber, NOL


  1. The hunt for human nature Erika Milam, Aeon
  2. The negative capability of a good legislator Federico Sosa Valle, NOL
  3. Is feminism responsible for the persistence of monarchy? Arianne Chernock, Public Books
  4. Poor white boys in present-day England Kenan Malik, Guardian


  1. Ownership and productivity in a capitalist society Chris Dillow, Stumbling & Mumbling
  2. Provincial cosmopolitanism Nikki Usher, Cato Unbound
  3. China’s “bottom-up” cities (best essay on China this year) Bruno Maçães, City Journal
  4. The Democrats and their favorite mouthpiece Irfan Khawaja, Policy of Truth


  1. Indonesia is building a new capital city Niniek Karmini, Associated Press
  2. Blasphemy laws are quietly vanishing…in the West Bruce Clark, Erasmus
  3. Lonely Russia and its multipolar world Hélène Richard, Le Monde diplomatique
  4. Brasilia, urban planning, and spontaneous order Bruno Gonçalves Rosi, NOL

Institutions, Machines, and Complex Orders (Part 9); Conclusion: legal-political institutions and systems

Institutions, whether formal or informal, consist of limitations on behaviour that allow structuring an order of human interaction (North, D.C., 1991). Such institutions endow decisions with their agents of transitivity and, consequently, with rationality and predictability. That is to say, an institution allows to conform expectations on a range of events dependent on individual decisions that will happen and, above all, on another range of events that will not happen or, if they do happen, they will generate an obligation to repair (either to a private individual through a pecuniary indemnity or to society through a criminal sanction).

For these reasons it is interesting to compare institutions with algorithms: a set of automatic procedures -and therefore devoid of arbitrariness on the part of any of the agents- that, according to the data provided by the environment, yield a range of possible results. In a modern political legal system (equality before the law, division of powers, political responsibility of high officials, principle of closure, etc.), such results show at the individual level a certain range of prohibited actions (the aforementioned principle of closure, everything that is not prohibited is allowed). At the individual level, an institution as an algorithm will allow us to predict what an individual will not do, but not what he will concretely do outside of that range of prohibited actions. At the governmental level, the opposite occurs: institutions allow us to anticipate what judicial decisions will be, which in turn will have to review laws and decrees that violate the rights and guarantees of individuals.

However, while institutions can function as algorithms, providing predictability to individual decisions and policies, they cannot function in a vacuum, but they need to be integrated into a legal and political system. This is so that it is impossible to enunciate them if it is not within the parameters configured by such systems. If institutions are algorithms, legal and political systems are abstract machines that select and integrate such institutions. It is the institutions integrated into a legal and political system that constitute a framework of incentives for human action.

Such institutions evolve following a natural selection pattern, when the legal-political system allows to act a negative feedback system mainly articulated by judicial decisions and precedents that readjust their meaning and content for the resolution of concrete controversies based on principles emanating from the legal system itself. Of course, each system represents the materialization of a set of values. Those of modernity, for example, are based, among others, on the dignity of the human person, which translates into the right to individual autonomy.

An ethic of political responsibility that defends such values ​​can be carried forward by rescuing an abstract system of dispute resolution between individuals that refrains from designing society from a central command. In many cases, such an ethic of responsibility must face ideological political programs that are presented under the guise of an ethics of principles.

Such antagonism is asymmetric, since the central design of society presents its followers with a concrete model and the promise that everything works. Although, this only leads, in practice, to an increasing number of decisions based on expediency. Thus, the opposite of the predictability and absence of arbitrariness of a system of spontaneous coordination of individual plans.

[Editor’s note: You can find Part 8 here, and the full essay can be read in its entirety here.]

Institutions, Machines, and Complex Orders (Part 8): Inequality before the law, de facto

François Furet, in the preliminary essay that serves as an introduction to The Past of an Illusion, entitled “The Equalitarian Passion,” highlights that in the Ancient Regime inequality was legally consecrated, while after the French Revolution, inequality persists surreptitiously, of contraband, thus cementing a feeling of vindication in the face of illegitimate inequality. Something similar happens in a system of regulations that, with the intention of serving the common good, re-establishes, de facto, a system of monopolies and oligopolies.

It is paradoxical that a political legal system made up mostly of general and abstract rules finds an unintended consequence of an increase in general well-being, while a regimented system based on a specific goal of social justice and growth finds itself as an involuntary stagnant consequence and with high rates of inequality. However, attentive given that no one can be judged morally for their involuntary results and instead for their intentions, it is commonly interpreted that the success of societies organized around abstract and general principles cannot be adjudicated to such principles, as it is also considered active policies that deliberately seek the common good cannot be reviewed by virtue of their poor results, but in any case what deserves to be discussed are the means to reach such objectives.

Once this point is reached, we discard any political program that does not have a purpose of reform or transformation based on a specific objective and in which the political discussion is about society models and the means to achieve in the practice of the realization of such models, the table is served for the ideologization of political discourse. Kenneth Minogue had rescued the original concept of “ideology” -before the Marxist who points to a set of values ​​of the ruling class at the service of the perpetuation of his power-, which dealt with the set of claims with scientific pretension that, through a redemptorist program, he proposed a series of concrete transformations of society. This word and notion comes from the ideologues of the French Revolution, which mostly fulfilled a pedagogical function.

Since the ideology of politics is installed, any doctrine that arises from its discourse in terms of defending a system of coexistence articulated around abstract and general norms and lacking a specific purpose of designing the society according to a certain model. In the political arena, therefore, there are political programs that seek to impose a certain model of society, articulated around a series of assertions with alleged scientific validity. Whatever the model of society under discussion, by the mere fact of proposing such political programs the transformation of society in function of those, the legal norms expressed in abstract and general terms that make up both the individual guarantees and the private right run the serious risk of being considered as an obstacle and an irrational hindrance of the past that prevents the realization of such models of society. This is the process that Friedrich A. Hayek had described in The Road to Serfdom.

The paradox is that a legal – political system composed mostly of abstract (that is, lacking a concrete purpose) and general (that is, the same for all citizens regardless of their status) rules allows to coordinate in a more efficient way the resources of those that a society has, through a better coordination of individual plans, about whose content we know nothing and whose final configuration is impossible to predict, that is, a complex social order. On the other hand, the abolition or gradual weakening of such a system of coordination in the allocation of resources and its replacement by a system of planning or centralized control of the economy and society based on a specific model generates an economic breakdown that only serves of excuse to redouble centralization in the administration of resources. At one point, neither the model of society nor the need to have a central planning to reach it, nor even that there is such a model or such a central planning of society, is only discussed, but it is indeed discussed which are the most appropriate means to “improve” said model.

That said, it is worth making a terminological clarification: what Hayek called in The Road to Serfdom “socialism” and then in Law, Legislation and Liberty “constructivism,” can be assimilated to a large extent to what Kenneth Minogue called “ideology” (although in truth, it must be recognized that Minogue, at the time, accused Hayek of being an ideological author). But, as Hayek himself clarifies in his prologue to the 1974 edition of The Road to Serfdom, the socialism to which he alluded in 1944 was not income redistribution programs, but the centralized planning of the economy and society . Similarly, Hayek’s critique of the notion of social justice concerns precisely those programs of political reform that seek to establish, through centralized planning, a designed social order. Another issue is the positivization of values ​​through abstract and general rules. A negative income tax – as proposed by Milton Friedman at the time – can be implemented through abstract and general norms, as well as patterns of redistribution inspired by John Rawls’ theory of justice. The problem is not redistribution, but the replacement of a spontaneous social organization system with a centralized planning system.

At the heart of the dispute between the prevalence of a spontaneous social order versus its replacement by a system of centralized planning of society is a divergence around the concept of the abstract. The supporters of the centralized planning of society are convinced that, through the measuring elements provided by science, the wealth of social events can be selected in aggregates that allow forming an abstract model of society, which In turn, it allows planning its reform according to the ideal model of society in whose transformation the political program that gives it reason to be to the politician’s own activity and that justifies his ethics of responsibility.

Of course, statistical tools, which are constantly developing (Hayek himself was a professor of statistics, and from The Road to Serfdom to today appeared the desktop computer and the science of Big Data, for example), allow a better allocation of public resources in the implementation of government programs. It is very useful for the rationalization of the government administration to know how much the population is going to vaccinate, the poverty and indigence statistics in order to determine, for example, subsidies to the demand, or the needs of schooling at its various levels. However, if there is consensus on the need for a vaccination program, or on the importance of subsidizing access to certain goods or the importance of schooling the population, it is because the members of that society already have a set of principles about what is considered good or bad, desirable or undesirable, necessary or superfluous. Such abstract notions do not arise from the abstraction of social events in statistical aggregates, but, on the contrary, these abstract concepts allow to form the groupings by virtue of which the social reality will have to be interpreted.

Such principles are born, develop and evolve according to the game of continuous human interaction. As described above, they consist of uses and customs that individuals incorporate in the course of exchanges and that prove with the passage of time to provide a better performance to the members of the community that follow them. Accounting standards, public behaviour guidelines, compliance with the word pledged, good faith, are examples of such practices that are extended throughout the population by incorporating such standards into the habits of its members. It was what Max Weber at the time conceptualized as the emergence of “rational capitalism.” These principles are not immutable, but on the contrary they adapt to the circumstances. However, they also enjoy certain permanence in time that allows them to serve as a structure or parameter for rational decision-making, since such a structure of values ​​prohibits a certain range of decisions, which makes its transitivity possible.

This system of discovery and spontaneous evolution of the abstract values ​​according to which reality is perceived and its respective organized elements can assume various configurations and has its own process of immanent criticism. The egalitarian guidelines that we can characterize as typical of modern society, in which every human being has the right to have equal consideration and respect, were extended over less efficient structures such as those of the caste and estates societies, in which the restrictions of competition and the unpredictable exercise of political authority generate stagnation (what Acemoglu and Robinson call “extractive economic and political institutions,” as opposed to “inclusive”). For its part, the peaceful resolution of disputes through the right of judges allows readjusting the set of expectations with which each member of society usually makes its decisions.

Such a system of discovery of abstract values ​​with which each individual can count on to coordinate their respective life plans and their corresponding immanent criticism through the judicial system is also susceptible of receiving a critical analysis by a reasoned examination regarding it and as a result of this, a new political legal order or partial reform of the existing one may arise through the legislative promulgation or even of a constituent assembly. A spontaneous order may have as its origin the enactment ex nihilo of it by a legislator, but among its defining characteristics is the note that it should not necessarily be so. Another of its defining characteristics is that the consequences of a political legal order, still created by the will of a legislator or constituent, cannot be foreseen in its entirety. Moreover, the future evolution of this order cannot be foreseen in its totality and detail. Such degree of uncertainty does not come from the deficiency or insufficiency of the elements of measurement that have for object to know the reality, but in the levels of complexity to which such order can arrive in their more abstract planes.

However, these degrees of complexity decrease drastically in the daily experience of the subjects that interact with each other, seeking to coordinate or compete in their respective individual plans, since each one of them knows what expectations to have regarding the actions of the rest of the subjects (the more “inclusive” the institutions are, the lower the degree of uncertainty). For the case in which two spheres of autonomy collide, the controversy will be resolved by a court that will have to say the content of the law for the specific case submitted to its decision. From this result, they will have to configure a set of expectations with which agents will know that they can count or not.

In contrast to this, at the level of the legislator and the political authority, such levels of certainty leave room for increasing degrees of complexity. Although there are many administrative decisions that can be taken with a high degree of probability of being successful following the procedures of administrative law and the general principles of law – what Max Weber described as a process of rationalization in political decision-making , the certain thing is that it arrives at a point in which the legal reasoning arrives at a limit – what in his moment Carl Schmitt characterized like an instance in which the right dies and leaves its place to the policy. This is where the political authority is faced with the need to dispense with the rationalizing element of law and articulate its decision-making process based on another type of “anchoring”: a philosophical doctrine, a conception of life, a political doctrine, a reason of state or an ideology.

Those who oppose the extension of political power over the autonomous institutions and processes of society maintain that such philosophies, reasons of state, or ideologies are mere masks of pure political will left to their free will. However, at least in principle, they can serve as limitations or at least elements of political responsibility of the ruler in a democracy. There are numerous cases in which a democratically elected governor receives criticism from public opinion regarding a supposed lack of consequence with his political doctrine, a double discourse, or the configuration of a consistent but mistaken ideology. Even so, except for the cases of impeachment and the impossibility of re-election, the tools to control the political reasons of the rulers and their consequences are rather scarce.

However, a distinction can be made between a simple political doctrine and an ideologized political doctrine – or, in Minogue’s terms, quite simply an ideology. A political doctrine can sustain a series of diffuse principles that do not exhaust a totalizing vision of reality. For example, German Christian Democracy can be defined equally by rejection of the extreme left, as the extreme right, a market freedom regulated by the State in order to preserve competition from the actions of monopolies (the “competitive order” of Ordo-Liberalism) and the moderate defence of certain values ​​prevalent in society through the non-interference of the government in its autonomous processes, that is, a clear division between society and State. However, no one can define in detail an ideology of German Christian Democracy.

In many circumstances, this “de-ideologization” is interpreted as “pragmatism” or “opportunism.” However, there is also room for opportunism in the interpretation of a political ideology by the public power that invokes it as a reason of state. The great problem that “ideologies” or ideological visions of politics do present is that, by offering a totalizing and scientific version of reality, they can be used as tools to discredit the legal system.

It is true that a legal system could be replaced by another in its entirety through a legislative reform – in the case of private law, a new civil code, for example – or a constitutional reform. But once reformed or replaced by the new, unless a tyranny has been instituted, it becomes the new legal order that will limit the political power. The problem arises when there is a phenomenon that can be named as the “road to serfdom”: the continuous, permanent and incremental discrediting, erosion, violation and exception to the current legal order.

When such a process is presented, freedom understood as the absence of arbitrary coercion is in decline, since, by invoking a reason of state or a state of exception, the expectations with which individuals counted to form their plans of life are frustrated in a way impossible to foresee. As a result, the political legal order becomes perceived as arbitrary and its obligation to obey it put in doubt.

Another consequence of the phenomenon known as the “road to serfdom” is that the system of immanent criticism of positive law affected by the application of this by judges in the face of concrete controversies is eroded. As already mentioned, attentive to the open texture of legal language, the judicial system allows for marginal readjustments on the content of the law that represent a true process of evolution, in the sense of adaptation to changes in the environment. In turn, this readjustment introduces new expectations in the agents, which generates a change in reality and opens the way for a new interpretation change through the open texture of the letter of the law, in a real feedback process negative that gives stability and predictability to the system.

On the contrary, the state of emergency and emergency legislation, as well as legislative and judicial activism, which seek to modify the content of the law not to solve the internal contradictions generated by its open texture, but to transform it according to concepts alien to the law. Right, they erode such a negative feedback system of expectations and, far from achieving the modernization of the law, what they obtain is their obsolescence, their discredit, and their disobedience. See that in countries with a greater authoritarian tradition, the adherence to standards by the population is significantly lower than in countries where emergency legislation and the state of emergency was limited to cases of war.

[Editor’s note: here is Part 7, and here is the essay in its entirety.]