Ludovico Cordasco, Carlo --- "Spontaneous order and freedom of contract" [2017] ELECD 609; in Monateri, Giuseppe Pier (ed), "Comparative Contract Law" (Edward Elgar Publishing, 2017) 173

Book Title: Comparative Contract Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804516

Section: Chapter 8

Section Title: Spontaneous order and freedom of contract

Author(s): Ludovico Cordasco, Carlo

Number of pages: 20

Abstract/Description:

As Gerald Gaus argues, Hayek’s theory of spontaneous order has been attacked on two opposite grounds: on the one hand, some theorists contend that it leaves no space for reforming or evaluating existing rules and institutional arrangements; on the other hand, other theorists claim that despite Hayek’s insistence on our ignorance in designing institutions, he still offers prescriptive claims on how we should order our societies. Furthermore, some other theorists argue that Hayek’s formulation of spontaneous order consists merely in the protection of freedom of contract or Locke's triad of rights (life, liberty and property). In this chapter, I shall analyse three formulations of the theory of the spontaneous order emerging from Hayek’s account and try to show why the positions mentioned above are ultimately mistaken. Particularly, I will show that although Hayek’s theory provides us with reasons for limiting our pretence of modifying existing institutions arising out of negatively free human interactions, his theory of the spontaneous order does not justify, per se, all institutional arrangements generated by such interactions. Moreover, I argue that Hayek provides us with epistemic tools in order to interfere with the overall order of actions by limiting freedom of contract with the aim of correcting the ‘undesirable’ evolutive patterns that spontaneous orders may face. It is important to notice that I do not aim to argue that Hayek himself would allow for such interferences, but that they could be grounded in his formulation of the spontaneous order.