… is from page 299 of the 2014 collection – The Market and Other Orders (Bruce Caldwell, ed.) – of some of F.A. Hayek’s most influential essays; specifically, it’s from Hayek’s brilliant 1967 paper “The Results of Human Action But Not of Human Design” (original emphasis; footnote excluded):
There never has been and never can be a ‘gap-less’ (lückenlos) system of formulated rules. Not only does all made law [that is, legislation] aim at justice and not create justice, not only has no made law ever succeeded in replacing all the already recognized rules of justice which it presupposes or even succeeded in dispensing with explicit references to such unarticulated conceptions of justice; but the whole process of development, change and interpretation of law would become wholly unintelligible if we closed our eyes to the existence of a framework of such unarticulated rules from which the articulated law receives its meaning.
DBx: Many are the men and women who think themselves to be realists in their insistence that law is necessarily the creation of the state. Yet they are mistaken. The state creates legislation. The state also sometimes enforces law. But law no less than language, no less than a set of norms, and no less than a pattern of market prices is the undesigned product of an emergent, or “spontaneous,” order.
And therefore the only true lawmakers are ordinary people going about their daily affairs and adjusting and reacting to – and forming expectations about – each other’s actions. Law is – as the title of Hayek’s essay here suggests – the result of human action but not of human design. The common practice of calling legislators “lawmakers” is, thus, a grave mistake.
