Posner versus Hayek

9 February 2007 at 9:57 am Peter G. Klein Leave a comment

| Peter Klein |

Todd Zywicki — what an unfortunate name in a profession where author order is usually alphabetical! — has a new paper with Anthony Sanders, “Posner, Hayek, and the Economic Analysis of Law.”

This Essay examines Richard Posner’s critique of F.A. Hayek’s legal theory and contrasts the two thinkers’ very different views of the nature of law, knowledge, and the rule of law. Posner conceives of law as a series of disparate rules and as purposive. He believes that a judge should examine an individual rule and come to a conclusion about whether the rule is the most efficient available. Hayek, on the other hand, conceives of law as a purpose-independent set of legal rules bound within a larger social order. Further, Posner, as a legal positivist, views law as an order consciously made through the efforts of judges and legislators. Hayek, however, views law as a spontaneous order that arises out of human action but not from human design. . . . This limits the success of judges in consciously creating legal rules because a judge will be limited in the forethought necessary to connect a rule to other legal and non-legal rules and what Hayek termed “the knowledge of particular circumstances of time and place.”

Paul Krugman once described Robert Barro as “esteemed but not revered” among professional economists (borrowing the phrase from a description of Stephen Hawking). Surely the same applies to Posner. Or perhaps it should be “admired but not esteemed.” One of my great pleasures in recent months was sharing a meal with a couple of University of Chicago law professors and listening to them swap Posner stories. Wow.