Friedrich von Hayek is usually called an economist or a political philosopher. Yet, his thoughts and writings were not confined to these fields. The main peculiarity of F. Hayek as a philosopher of law is that, unlike most philosophers, he grasped how market forces interplay and how people's motivations work on the market and in society in general. As F. Hayek put it, the purpose of law is to preserve order, and this order manifests itself as a market. Hayek's legal thought derives from theoretical works of the Austrian School of Economics.

Let me start with the question: What is law? To the layman, asking this question in the audience of lawyers or legal philosophers would seem baffling. Yet, the question about the essence of law arises over and over again. F. Hayek did not preoccupy himself with such discussions. He used the term "rules," maintaining that law consists of rules of conduct which are generally recognised and which a society obeys and uses to preserve social order. Thus, the rules split into two types which most lawyers tend to mingle into one: nomos and thesis. Nomos are the rules of just conduct, while thesis are organisational rules. One of F. Hayek's core statements regarding the philosophy of law was that these two types of rules are totally different and therefore should not be combined into one concept of "law." Nomos are formed spontaneously. They are abstract and help co-ordinate people's individual goals in a given society. Thesis are particular instructions for the attainment of chosen aims, for making choices and setting goals but not co-ordinating.

One essential discovery is that organisational rules (thesis) are an attribute of a small (usually tribal) society which defines common goals. Nomos are characteristic of an open, great society in which each individual determines his own goals and seeks his own, not general, interest. Still, nomos ensure that people behave in such a way so as not to harm other members of society. This translates into the establishment of a market (spontaneous) order.

The conflict of these two types of rules is typical of humanity. It is safer and cosier to live in a tribal community, but a great society is more effective. F. Hayek proved this safety, comfort and even altruism to be an attribute of a primitive society. The pursuit of profit brings much more benefit to a society than charitable activities. The fact that we often feel tempted to return to a closed community and choose to do good in concrete rather than abstract ways is a manifestation of long-standing moral convictions on the one hand and of narrow-mindedness on the other. Alienation and a loss of the feeling of safety are the costs of efficiency and peace which people choose as society develops and new opportunities evolve. The more people are "insiders," the fewer concrete obligations people can assume towards them.

The clash of the abstract and concrete worlds (or open and closed societies), or their rules, trigger a range of conflicts in modern society. This clash may explain contradictions between law and morals. True, when safety and comfort are at issue, one should keep it in mind that the effect of disregarding and destroying a great society is not limited to ensuring safety in a small community. The world of particular rules, which form a closed circle of its own members, engenders conflicts with other communities which come to be viewed as enemies.

Another important observation F. Hayek made was that, regardless of the fact whether a government adopts a rule or not, the essence and content of the rule do not change. One does not kill not because the criminal code says so but because this may not be done. An endorsement of an existing rule on the part of government is like draping it in some theatrical outfit. This formalised theatricality is but an opportunity to enforce law through coercion. People should distinguish between what is law and what is not. Otherwise, they will not know which rules they must obey and which not and which rules they may require others to submit to. Certain rituals (witnessing, a prophet's actions, demonstration of respect towards court, taking an oath) have always helped to determine this.

In the continental doctrine, law is commonly regarded as the creation of someone's will. If so, then it follows that we need to determine who has established the law, or the rules. If we go further than that, we will come across another question: Who is that sovereign who exercises the power to set mandatory rules for all? This question is also addressed by two main approaches to the origin of law: positivist-ethatistic law and natural laws. They both accede that there is someone who defines rules (either a government, whenever and however it sees fit, or the Creator, once and for all). Still, neither of these approaches can refute the utilitarian (efficiency) and ethical arguments which F. Hayek advanced, thus offering an alternative.

If positivist law (legislation) is law, then how shall we explain the fact that in many cases people act according to rules other than those adopted by governments? Examples are many in number: codes of ethics, sports rules, group rules, customs, etc. Is there any mechanism to ensure that a governmental rule is effective and accepted by all? How to prevent an abuse of power? What draws the lines between state jurisdictions?

If any kind of natural law is law, how shall we explain the fact that different societies have different laws? How to explain the development of law and exchange in the context of natural law? How to account for the fact that the social / public nature of law exists not in an individual but in his relations with other individuals? Had such features of law as its being natural and given evolved before its efficiency was validated in practice?

F. Hayek offers an alternative which derives law from civil relationships. He was not the first to hit upon this idea, but he was the first to explain that law is the outgrowth of spontaneous social relationships. Every resolution of a conflict, or every choice of a model of conduct, creates new, or confirms existing, models of conduct. Law is the product of a continuing solution of conflicts and preservation of order. Hence the diversity of law (people live and adopt decisions in different societies and under different circumstances).

Assuredly, all conflicts arise over available means to attain chosen ends. The science of economics asserts that in a situation of scarcity (and such is our world), only ownership of property and freedom to use it can ensure that scarce resources are utilised in the most efficient way possible. F. Hayek regards ownership as the fundamental principle of law, and its delimitation as the main role of law. For example, what is a plot of land or can the ether be an object of ownership? Let me note that here we are talking about a civilisation based on the principle of ownership. The ideas of individualism and ownership are at the heart of Western societies, and F. Hayek gives us insights into why a wider recognition of ownership allows it to gain a firm foothold. The most effective of all orders, a market order, requires that the rule of private ownership be the cornerstone of law.

A prominent place in F. Hayek's analysis of the development of law is occupied by the notion of cultural and social evolution. It asserts that groups which function more effectively outrival and oust, or absorb, other groups, first of all by imposing on them their own rules of conduct. The effectiveness of the ownership-based system explains why in the course of history some legal principles have become universal: a society which lives under the law of ownership is more robust than any other society.

What, then, is evolution? Evolution is a law which affirms but not specifies change. The law of evolution asserts the development and progress of social institutions. But it does not explain why these institutions evolved in the way as they did or how they are going to develop further. This is because full information about what specifically influences this development is unavailable. This distinguishes Darwin's biological evolution and F. Hayek's social evolution from historicism, which aims at identifying universal laws that determine evolution. With regard to this, Marxism stands out most clearly and eloquently.

What would interventions in the spontaneous order and rules, or attempts to alter the course of evolution, lead to? The consequences are already evident today: legislative inflation and complex, conflicting and unrealistic rules that pretend to become law. Under such circumstances, conflicts do not get solved. Quite the contrary. They are exacerbated, and the spontaneous order is replaced by an overly regulated chaos. The society foregoes its values and people turn into non-creative, ignorant-of morals cogs as no choice if left for people to judge for themselves.

F. Hayek is particularly critical of legislature and unmasks the reasons for the decay of democracy, which, he argues, lie in democracy itself. If parliamentarians wish to be re-elected, they appeal to tangible goals and group interests rather than general interest. This brings more and more specific rules, thus pushing society back to the primeval order. Attempts to perfect existing spontaneous rules is, as F. Hayek puts it, a "na?ve fallacy of constructivism" which is prompted by good intentions but brings nothing but harm. Sadly, law-making follows the very same fallacy.

To my understanding, F. Hayek's ideas should act as a beacon for lawyers, encouraging them to be watchdogs of the spontaneous order rather than small cogs in a vast machine for enforcing decrees. Law-makers, on their part, should be genuine representatives not of narrow group interests but the whole society.