Academic journal article Faulkner Law Review

In Defense of the Civil Law: A Response to Hayek

Academic journal article Faulkner Law Review

In Defense of the Civil Law: A Response to Hayek

Article excerpt

Friedrich August von Hayek, a Nobel Prize winning economist, (1) became famous arguing against "central planning." (2) In addition to his work in economics, he wrote extensively on philosophy (3) and law. (4) The latter topic will be the primary focus of this paper.

Understanding Hayek's views on law requires a greater understanding of his background and his views on economics. The next section will explain who Hayek was, discussing his areas of study, his economic views, and his views of the law. This background information proves necessary to understand why Hayek came to the legal theories that he did.


Hayek was born into a Viennese family of intellectuals in 1899. He attended the University of Vienna earning a doctorate of law in 1921 and a doctorate in political philosophy in 1923. (5) He initially started studying economics to learn how to help the impoverished, (6) which led to his favorable view of Democratic Socialism. (7) His philosophy changed after he read the book Socialism by Ludwig von Mises, a leading Austrian economist. (8) Hayek famously said, "[t]o none of us young men who read the book when it appeared, the world was ever the same again." (9)

Hayek began to take seminars from Mises after reading Socialista. (10) This relationship led to him founding the Austrian Institute for Business Cycle Research. (11) After just a few years, he joined the London School of Economics, one of the most prestigious universities in the world. (12)

While Hayek was teaching and refining Mises' theory of the Austrian business cycle, Nazi Germany took control of Austria, Hayek's homeland. Hayek became a British subject in 1938 because he refused to return home as long as it was under Nazi control. (13) Hayek viewed socialism and central planning as a root cause of Nazism. (14) Hayek and Mises were strong critics of any attempt at central planning as it interfered with the freedom they thought every man should have the right to enjoy.

While at the London School of Economics, Hayek's feud with Lord John Maynard Keynes began. (15) Keynes believed that governmental deficit spending could rescue economies. (16) Hayek, however, believed that deficit spending would only increase the problems of recessions and depressions because their true cause was the inflation caused during the "boom" fight before the "bust." (17) Many expert economic historians consider it surprising that Hayek never wrote a complete response to General Theory, Keynes' most famous and influential book. (18) Hayek never wrote a response because Keynes had a history of changing his opinion, and even more frequently, changing the topic, when Hayek would begin attacking his philosophies. (19) Hayek said he did not see the point in refuting General Theory as Keynes would have just "changed his mind" anyway. (20)

One of the tools Hayek used to dispute "central planning" was authoring his most famous book, The Road to Serfdom in 1944. (21) In its most important chapter, "The Socialist Roots of Nazism," the book openly refuted the claim that fascism was the capitalist reaction to socialism. (22) When Keynes said that he agreed with a large percentage of the book, Hayek shot back, stating that Keynes likely believed this because Keynes was unaware of "how far he had moved away from" classical economics. (23) He continued, stating that Keynes' views "will not be a maker of long run opinion, and his ideas were of a fashion which, fortunately, is now passing away." (24)

In the 1950's, Hayek came to the University of Chicago, but never joined the Chicago School of Economic thought. (25) During this time, he began his expansion into other topics. He started by writing The Constitution of Liberty, which discussed government coercion. (26) After this, he returned to Europe to teach and write at the University of Freiburg, where he began writing Law, Legislation and Liberty. (27) This book took Hayek a great deal of time to write and edit, as he would constantly rework large sections. …

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