Intuition, Custom, and Protocol: How to Make Sound Decisions with Limited Knowledge
Richard Allen EPSTEIN · bepress Legal Repository · 2006
It is my very great pleasure to be asked on this occasion to deliver the first Friedrich von Hayek lecture at the New York University School of Law.One need look no further than NYU's new Journal of Law & Liberty to have some sense of the enduring influence that Hayek has had on the intellectual temper of modern times.It is no mean feat for a native Austrian to migrate to England and then to the United States, while composing along the way some of the most influential works of the twentieth century.Like so many individuals of enduring greatness, Hayek defied the usual conventions that separate one academic discipline from another.Trained as an economist, he gravitated away from technical subjects to the more ethereal realm of political theory.Moreover, his work in this area was tempered by a real appreciation for the power of legal institutions to shape human behavior.A cross between the economist, the philosopher, and the lawyer, he addressed a wide range of issues that escaped writers who were tightly bound to a single discipline.He is generally regarded as the single most HeinOnline --2 N.Y.U.J.L. & Liberty 1 2006-2007 NYU Journal of Law & Liberty important figure in the revival of classical liberalism in the twentieth century.'All the more remarkable, he did his best work by writing against the grain.At a time when central planning was regarded as the solution to the ills of a chaotic and disorganized market economy, Hayek marshaled his intellectual firepower to explain that the failures of central planning were not unfortunate lapses that could be cured by a more careful application of the socialist program. 2 He showed that the inability of any one person or bureau to assemble all information about everyone's (indeed anyone's) needs and desires doomed any system that relied primarily on the centralized distribution of goods and services to satisfy the full range of human needs.I think his vindication on this frontier marks the most positive portion of the Hayekian legacy, and it is surely enough for one lifetime.But the great political successes should not be allowed to conceal the other side of the story.If socialism is wrong, then how do we find out what kind of system should be put into place?How do we figure out what social norms should be, and how do we decide which of these-all, some, or none-should be converted into legal norms?In dealing with this question, Hayek showed great disdain for what he termed the "constructivist" fallacy, by which he meant the idea that scholars outside the social system are able to generate a grand theory that unifies all of social experience under a single tent.3 Hayek was deeply suspicious of anyone's effort to formulate overarching principles that explained social life.1 For a full collection of his works, see The Friedrich Hayek Scholars' Page, http://www.hayekcenter.org/friedrichhayek/hayek.html (last visited Oct.