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Правопонимание Фридриха Августа фон Хайека: между либеральной идеологией и социальной теорией
The article is devoted to the re-problematisation of F.A. Hayek's legacy in
philosophy of law and social theory. Taking as an example the works of SPSU professor
I.Y. Kozlikhin, and some other works about Hayek's theory of law, the author demonstrates
several inadequacies of the current literature on Hayek's legal philosophy. In criticizing
these highly debatable approaches, the author describes multiple but rarely considered
nuances of Hayek's conception of law, which seem to be necessary for adequate
understanding of his works. In the author's view, only these details allow to cast some
doubt on stereotypes about Hayek as a sort of “liberal ideologist” and unfold the true
original potential of his philosophy. The main hypothesis of the article is that the key
to this original potential lies not in Hayek's theory of freedom and market, but in his
fundamental epistemological views. The ideal of freedom is not enough to discriminate
between what is “just law” and what is not in hayekian theory. Only by the means of Hayek's
epistemology we can separate law as “rules of just conduct” from other types of social
institutions in his theory. This separation is based on broader epistemological separation
of “simple” and “complex” phenomena in Hayek's theory of knowledge, which is reflected
in his distinction between “organization” (Taxis) and “spontaneous order” (Kosmos). Since
only the last of them represents a «complex phenomenon», it means that only a system
of special meta-rational rules of conduct can provide an epistemically restricted social
actor with an ability to act effectively in such a complex and rationally unknowable social
structure. It is argued that only this “technical” capacity of meta-rational just law can be
seen as the true basis of Hayek's theory of law. Neither hayekian theory of freedom, nor his
theory of market can shed light on the Hayek’s most important and original contribution
in the domain of legal theory. It is Hayek's epistemology that can be seen as the ultimate
foundation of his conception of law.