[Editor’s Note: The following essay was written by Carlo Cordasco as part of BHL’s “New Voices” program. Carlo is currently a PhD student in politics at the University of Sheffield, where he is writing his thesis on “Rethinking Spontaneous Order: Norms, Institutions and Legitimacy.”]

In a recent post Jason Brennan tries to establish a way to evaluate states of affairs that have a spontaneous origin. Although I am sympathetic with his attempt, I believe we have different ways of approaching the argument about spontaneous order [SO] and social justice.

Here’s how Jason summarizes it:

The distribution of goods, wealth, and opportunities on a free market is not the product of anyone’s intentions or design, but rather is something that emerges from countless individuals making free decisions. There is no more a “distribution of income” in a free market than there is a “distribution of mates” in our society. Only the products of human intention can be judged just or unjust. Therefore, the distribution of goods, wealth, and opportunities on a free market is neither just nor unjust. In short: the concept of social justice is a category mistake.

On the face of it, it seems like this argument ought to apply not just to social justice but to any norms that emerge from a spontaneous order. But, interestingly, this is not what Hayek thinks:

The fact that all laws arising out of the endeavour to articulate rules of conduct will of necessity possess some desirable properties not necessarily possessed by the commands of a legislator does not mean that in other respects such law may not develop in very undesirable directions, and that when this happens correction by deliberate legislation may not be the only practicable way out. For a variety of reasons the spontaneous process of growth may lead into an impasse from which it cannot extricate itself by its own forces or which it will at least not correct quickly enough. The development of case-law is in some respects a sort of one-way street: when it has already moved a considerable distance in one direction, it often cannot retrace its steps when some implications of earlier decisions are seen to be clearly undesirable. The fact that law that has evolved in this way has certain desirable properties does not prove that it will always be good law or even that some of its rules may not be very bad.

Interestingly, Hayek seems to attribute such bad patterns to differences in bargaining power:

The necessity of such radical changes of particular rules may be due to various causes. It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognised as unjust. But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice.

This is crucial for two main reasons: first, because, in some sense, Hayek admits that excessively large differences in bargaining power may compromise the spontaneity of an order (which is one of the claims of my PhD thesis), second, because this argument can be easily applicable to the concept of social justice.

Even Hayek thought we could essentially identify suboptimal outcomes. I don’t think this is entirely consistent with much of Hayek’s epistemology, but this is not the kind of issue I would like to discuss now. The point I would like to make here is that whether or not such bad patterns can be identified and corrected (corrections are even more problematic!) this cannot, in itself, justify the claim for social justice. The rejection of social justice is made on the ground that no one is responsible for those outcomes.

In this sense, we need to approach the argument from another perspective if we want to challenge the SO argument on its own grounds.

Two Definitions of SO

I find two different definitions of SO in Hayek’s work:

The first definition seems focused on the origin of an order and can be stated as follows:

(a) An order is spontaneous if, and only if, it has been originated by the free interactions of individuals.

Note that, by free interactions, Hayek seems to refer to the concept of negative liberty according to which freedom is defined as the absence of external obstacles in pursuing our own goals.

On the other hand, the second definition is not concerned with the origins of orders and might be summarised as follows:

(b) An order is spontaneous if, and only if, it is able to adapt to new circumstances in a way that allows the use of dispersed knowledge in order to solve co-ordination problems efficiently.

Can a Spontaneous Order be Non-Spontaneous?

There are two obvious ways in which we can interpret the title of this section: can an order, originated by the free interactions of individuals, evolve in an order which is unable to adapt to new circumstances? And, can an order, which is the result of the will of some particular individuals, be able to adapt to new circumstances? I believe the answer to both those questions is positive.

Let me start with the following simple example: suppose that Miriana and Milena are neighbours and isolated from the nearest town. Although they enjoy perfect negative freedom with respect to each other, they decide that they want to devise a way to create enforceable rules and so decide that the oldest member, Milena, will have authority over the group. Miriana thus sacrifices some of her negative freedom in order to improve the quality of her life. The question is: would this be a spontaneous order according to (a)? I believe the answer is positive, since (a) poses no requirements except for the free origin of the order. Hence, Milena shall be able to rule without taking care of Miriana’s goals and expectations. (a), indeed, poses no duties on Milena; specifically, (a), does not imply that Milena should adapt her decision to new circumstances, or that she ought to revoke her power when the circumstances change such that would be preferable to re-discuss how should we assign the right to rule.

This means that (a) may justify any possible institutional arrangements as long as individuals agree to commit to it at t1, including arrangements that manifestly will not be able to adapt to new circumstances. Thus orders that are spontaneous in sense (a) can evolve into orders that are non-spontaneous in sense (b).

The second question I aim to answer in this section is: can a spontaneous order (b) arise from coercion? I believe the answer to this question is also positive, since (b) poses no requirements on the origin of orders. Hence, Milena can still impose a decision making procedure which makes the order able to adapt to new circumstances and, thus, spontaneous, according to (b).

Thus, the two definitions of spontaneous order that I find emerging from Hayek’s account are not linked by causal necessity. While Hayek seems to be committed to a view that considers (b) as the obvious result of (a), I argue that (b) is not strictly related to its origin, but rather to the decision making procedure that governs the order. Hence, we can find spontaneous orders (a) which are not able to adapt to new circumstances, and spontaneous orders (b) which are not the result of the free interactions of individuals.

The Hayekian Common Law and Free Marked: what kind of SOs are those?

The first conclusion that I would like to draw in this post is that the Hayekian common law is not a spontaneous order according to (a). While this may seem surprising for many Hayekian commentators insisting on the importance of the idea of spontaneity in origin, I believe this conclusion is not hard to draw.

This is due to one main thing: since spontaneous orders (a) can easily evolve in non-spontaneous orders according to (b), (b) needs to be ‘established’.

But, how could we possibly establish (b)? Is it possible to build a spontaneous order?

This may seem a silly claim to make, but it does not seem absurd to me. We know which procedural rules are required in order to have a functioning free market, and we know which procedural rules are necessary in order to have a functioning legal system. This is not even incompatible with Hayek’s epistemological approach within the Sensory Order. We can know the general rules that make possible the self-organisation of a complex system even though we might not be able to predict its outcomes, or to have a ‘detailed’ knowledge of such system. We might not be able to intervene on ‘particular’ rules, or to correct ‘prices’, but we can act on the general framework that allows the functioning of a self-organising system.

Responsibility and Social Justice

If the free market and the common law are not the obvious evolution of (a), (b) might need to be established. There are good reasons to want (b), and there are good reasons to think that (b) requires a good amount of negative freedom. Nonetheless, if (b) needs to be established, and can be established by the human design, we might be responsible for the outcomes of (b) even if we are not able to predict its outcomes. This is because we know how (b) generally works, and that there might be persons in need as a consequence of (b).