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

LAW AND NATURE IN THE WORK OF MURRAY N. ROTHBARD 29
rule of law based on a voluntarist model derived from
Thomas Hobbes. William Blackstone makes a particular use
of the concept of natural law when, in order to demonstrate
the moral basis of the English legal system, he defines English
law as being based on the principles of natural law, established
by God, that the human mind is able to discover. As a
result, “the common law had been developed—or rather discovered—by
the English courts in accordance with procedures
of adjudication in which legal rules and precedents
were established through an application to individual cases of
the principles of morality and reasonableness that ran
through the whole structure of English law.” 48
Thus, we find a “reasonableness” not unlike Edward
Coke’s reason, which is founded in the common law by virtue
of the historical process through which it has developed.
Hayek favors English common law, law discovered by the
judges, creating a spontaneous order. On the contrary, he is
against the idea that had taken root in absolutist states, that
the act of making and breaking laws is the essence of sovereignty—a
deliberate act of the sovereign’s will.
Hayek also takes issue with Cartesian-based rationalism.
This school of thought ignores the distinction between taxis
and cosmos, i.e., between systems and associations whose
formal structure is characterized by a constructed order, and
those systems that, on the contrary, developed and took root
by means of an evolutionary process and which could therefore
be defined as spontaneous orders. Constructivist rationalism
concentrates its attention exclusively on the institutions
of the first type, overlooking the fact that intentionally
constructed forms of human association are often supported
on the wider base of a spontaneous order. Hayek counts the
common-law legal system among those that can be characterized
as a cosmos and ascribes it to the evolutionary rationalism
that led to the configuration of the natural process that
Covell defines as “legal naturalism.” 49 Covell explains that, in
48Ibid., p. 3.
49Ibid., p. 143.