Abstract

Far into the first volume of his magnum opus, Law, Legislation and Liberty, Hayek points to the bridge between his theoretical analysis of the development of social order and his normative position as an advocate of liberalism in the classical tradition: The understanding that ‘good fences make good neighbours’ […] is the basis on which all known civilization has grown. Property, […] the ‘life, liberty and estates’ of every individual, is the only solution men have yet discovered to the problem of reconciling individual freedom with the absence of conflict. Law, liberty, and property are an inseparable trinity. 1 The quote can serve as a powerful argument in support of the classical liberal theory of law. Property and liberty have many detractors but lawlessness has few advocates. Surprisingly, Hayek made no systematic attempt to defend his inseparability thesis. Never reaching the status of a firmly established conclusion it remained a presupposition that friends could accept readily and enemies could dismiss as an ideological expression without theoretical support. Moreover, Hayek often seemed reluctant even to use the term ‘property’. Most of the time, he preferred to speak of an otherwise unspecified ‘private sphere demarcated by general rules’—a notion that might have delighted a Rousseau or a Burke but not a Frédéricq Bastiat. His theory of law also refers to unspecified general ‘rules of just conduct’ but remains vague about what justice is or how it relates to classical liberal conceptions of property or freedom. Thus, the supposed trinity of law, liberty and property resolves itself in a nondescript order of undefined scope, generated by rules of unspecified generality. It may have seemed obvious to Hayek that one can describe an order of human affairs that respects the property and freedom of individuals only in terms of general rules but that is not a sufficient basis for his claims..