On Hayek's Common-law Rechtsstaat

As a master known for restating the principles of the classical liberalism, Hayek's theory for the rule of law presents some characters. Spontaneous order is the corn; common-law does not result from spontaneous order, but also is the safeguard of liberty; freedom is the goal.Hayek's theories of liberalism and the rule of law begin with evolutionary rationalism. From the view of evolutionary rationalism, human's rational power is too weak to design and create social order deliberately. Law, ethics and so forth, are the result of human action but not of human design. Therefore, all of the human's legal systems and rules, etc., have spontaneously generated and developed. These standpoints are contrary to constructivist rationalism. Under spontaneous order every unit reacts and harmonizes spontaneously, then it has freedom. Meanwhile spontaneous order is the result of the units observing nomoses or the rules of just conduct consciously. Common law (and civil law )is one of the nomoses. It results from spontaneous order and is the stronghold against it, or rather the guarantee of freedom. Free country is the Common-law Rechtsstaat.However there are many dilemmas in Hayek's theory of rule of law,and it may not guarantee individual liberty. The vital lies in the concept of spontaneous order. Hayek does not understand that there are some differences of types and subjects of spontaneous order in one society. Some are antagonistic to the others. In this situation, we only can use state-means (such as law )to maintain one of spontaneous orders and coerce its contrary aspects, then restrict our liberties. On the other hand, different populations may have different benefits. So, maintenance of this order means restraining freedom.