Second Thoughts on Leoni, Hayek, Legislation, and Economic Calculation

My libertarianism has been fairly consistent over the years, especially since I morphed from Randian minarchist to Rothbardian anarchist around about 1989 or so (my last gasp in the minarchist camp was in a 1989 article; see Then and Now: From Randian Minarchist to Austro-Anarcho-Libertarian). I’ve been a pretty steady Rothbardian-Hoppean-Austrian anarcho-libertarian since then, for about 25 years. I try to develop my views carefully, systematically, precisely, and incrementally, building on, referencing, and integrating with previous things I’ve figured out. Sort of like the Kinsellian/libertarian common law.

On occasion I realize I made a mistake and try to regroup or redress it. Sometimes it’s just a matter of emphasis, like my de-emphasis in recent years of American constitutionalism (see Down with the Fourth of July and On Constitutional Sentimentalism)  and certain changes in emphasis in terminology (I now prefer  the term state to “government,” aggression to “coercion,” and refer to the object of ownership or property rights as a scarce resource rather than as “property,” primarily to avoid the equivocation that statists invariably engage in). I also think I slightly misstepped in my previous criticism of Rothbard on inalienability (see Inalienability and Punishment: A Reply to George Smith), though I stand by my criticism of Rothbard’s IP views and his debtor’s prison comments (I plan to elaborate on this soon). I’m also a little bit more gun-shy about engaging in armchair theorizing now than I was as a young pup.

One area in which I misstepped was in my 1995 JLS article “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995), a summary version of which appears here: “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010). I stand by most of this article but in one part, I relied too much on the Hayekian “knowledge problem” interpretation of the economic calculation problem, and Leoni’s application of this to legislation. Since that article I became more skeptical of the entire Hayekian “knowledge” paradigm (see Knowledge vs. Calculation, Mises Blog (July 11, 2006)), as I noted in subsequent articles, such as my 1999 QJAE review essay, Knowledge, Calculation, Conflict, and Law (see footnote 5, e.g). Oh, that I had heeded Jeff Herbener’s comments on an earlier manuscript, but I either got these comments too late, or did not fully appreciate them at the time. But now I am skeptical of the idea that the problem with legislation is some kind of knowledge problem that also plagues central economic planning. I too uncritically adopted Leoni’s Hayekian-type analysis in Freedom and the Law, and repeated it in section III.C.2 of my paper. I am also skeptical now of the over-used term “spontaneous” that Hayekians sprinkle throughout their writing; I find it usually adds nothing to the analysis (try removing the word “spontaneous” or “spontaneously” from a sentence when you hear a Hayekian use it, and see if the meaning changes). There are lots of problem with legislation, which I point out in the article  (see also Another Problem with Legislation: James Carter v. the Field Codes), but this knowledge analysis is in my view problematic.

I was reminded of this when I was listening to the Cato podcast below, with comments on Bruno Leoni’s thought, in particular those of Pete Boettke, in which he reiterates the Hayek/Leoni “the problem with legislation is a knowledge problem view” approach that I adopted in the 1995 article, and which I largely reject now.


Bruno Leoni at 101

Bruno Leoni at 101

Featuring Roger Pilon, Vice President for Legal Affairs, Cato Institute; Peter Boettke, University Professor of Economics and Philosophy, George Mason University; and Todd J. Zywicki, George Mason University Foundation Professor of Law, George Mason University School of Law; moderated by Alberto Mingardi, Director General, Istituto Bruno Leoni.