Murray N. Rothbard vs. the Philosophers - Ludwig von Mises Institute

MURRAY N. ROTHBARD VS. THE PHILOSOPHERS: UNPUBLISHED WRITINGS
28 ON HAYEK, MISES, STRAUSS, AND POLYANI
In a customary constitution, reason is immanent, but not
the abstract reason of the rationalists; it is rather historical
reason in which, in the English legal and political tradition,
there is less of a rigid contrast between nature and history.
In Matteucci’s opinion, even John Locke’s great work on
natural law essentially speaks of a tradition that became
rationalized and universal. Once again, we find the idea that
what is natural is that which has evolved.
However, the question of the relationship between Hayek
and natural law is certainly not easy to define. For example,
Charles Covell came to place Hayek among the “defenders” of
natural law, although he makes it clear that he considers
Hayek a defender of natural law by virtue of his opposition to
legal positivism, rather than for any connection with the natural-law
tradition, which is totally lacking in Hayek’s work. 46
Covell says that there is another perspective from which
Hayek refers to a “natural” model, a perspective that is, in
a certain sense, linked to Matteucci’s ideas. Covell writes,
“Hayek constructed an essentially naturalistic model of law
which looked back to the tradition in legal philosophy of
Coke and Blackstone.” 47 In this way, Hayek rejects both legal
positivism, for its constructivism, and also the idea of the
of the law nay the common law itself its nothing else
but reason; which is to be understood of an artificiall
perfection of reason, gotten by long study, observation,
and experience. . . . This legal reason est summa
ratio. And therefore if all the reason, that is dispersed
into so many several heads, were united into one, yet
could he not make such a law as the law of England
is; because by many successions of ages it hath been
fined and refined by an infinite number of grave and
learned men, . . . and by long experience growne to a
such perfection.
46Charles Covell, The Defence of Natural Law: A Study in the
Ideas of Justice in the Writings of Lon L. Fuller, Michael Oakeshott,
F.A. Hayek, Ronald Dworkin, and John Finnis (London: Macmillan,
1992), p. xiii.
47Ibid., p. xiv.