A Research On Hayek's Nomos Theory

At the end of 19th century, the western countries passed laisser faire capitalism and entered monopoly capitalism, and according to the developing situation, many western countries adjusted the relevant economic policies to interfere the economy. Under the pressure of economy evolution, Germany and Italy became fascist, while Britain and America enhanced their interference towards economy. Under these circumstances, the original liberal tradition was thrown away, and classical liberalism was in jeopardy. According to the situation, Hayek inherited and developed the British classical liberalism. He considered monopoly capitalism's interference towards economy, fascist and planned economy as compulsions to liberty, so he was against the laws that jeopardized the liberty quite much. To defend liberalism, Hayek built up a theory of cosmos and taxis. In his opinion, the cosmos was spontaneous and purposeless, so it was the system that could protect people's liberty; yet the taxis was man-designed and purposeful, so it might jeopardize the liberty. Furthermore, Hayek built up a theory of nomos and thesis. The nomos was the rule that formed cosmos, and it was the law that helped people to achieve liberty. Hayek called it the True Law.The nomos theory, created in the special circumstances, without doubt, is the best law to defend liberty. Comparing with the thesis (or organizational rule or law of state), the nomos has a character of defending liberty. The nomos is a rule of abstract, justice, and negation. The first character of the nomos is abstract, because of which, the nomos will not lean to anyone, and it is a rule that has a single purpose. The second character of the nomos is justice, because the nomos is formed in the communications among people, and it is the people's choice. It is abstract, so it is not compulsive to anybody. Negation is the third character of the nomos, on the basis of which, the nomos can protect people's liberty even more. Negation denies the right and obligation of anybody, so actually the nomos lines out a scope of people's behavior. This is why the nomos can help people to achieve liberty maximally.The nomos is a liberal law as well as a way to achieve a society ruled by law, so it is very meaningful to study the nomos. Theoretically, the nomos is closely related to liberty and legal system. The nomos is the basis of denying totalitarianism, repressive legal system and arbitrary legislation. Studying the nomos is very helpful for us to understand liberty and legal system. On the other hand, the nomos is the core of Hayek's legal thought. The nomos to Hayek is equivalent to the living law to Ehrlich, as well as behavioral law to Pound. Therefore, in order to study Hayek's thought, we have to study the nomos. Practically, we also need the guide of the theory of the nomos. In our country's situation, we are transforming from planned economy to market economy as well as from traditional society to modern society. So we have to eliminate the remnant of planned economy and achieve the unity of tradition and modernization. In these circumstances, the nomos theory is quite irradiative for us to develop our legal system.Yet the research in this aspect is not much. On the basis of the above reason, this thesis synthetically uses theoretical analysis, historical analysis and comparative analysis to study Hayek's nomos theory systemically. There are four parts of this thesis and totally 40,000 characters.Part I is about the background, logical beginning and theoretical origin of the theory of the nomos. Firstly, it is the introduction of the society background of the time when the nomos was proposed. The nomos was proposed to against the totalitarianism. Secondly, it introduces the logical beginning of the nomos. The nomos was proposed to defend liberty and oppose totalitarianism. It's logical beginning is British traditional liberalism. Thirdly, it introduces the theoretical origin of the nomos. The nomos comes from the British legal thought of Hume and Smith.Part II is regarding the content of the nomos. We will find out the content of the nomos by its precondition and three characters. Firstly, it introduces the precondition of the nomos. The nomos was proposed on the basis of two orders, so Hayek proposed the nomos and the thesis. That's how the nomos was born. Secondly, it introduces the characters of the nomos. This thesis analyzes the nomos in the justice, abstract and negation these three aspects.Part III is about the comparison of the nomos and other non-constitutional laws. In this part, it introduces the resemblances and differences between the nomos and natural law, living law and non-constitutional law of anthropology of law. Through the above comparison, we will understand the differences between the nomos and other non-constitutional laws. It is beneficial for us to understand the nomos better.Partâ…£is about the practical meaning of the theory of the nomos in our country. Firstly, it introduces the inspiration of nomos to our country's choice of legal system route. According to the theory of the nomos, we should pay attention to the combination of tradition and modernization. Secondly, it introduces the inspiration of the nomos to our country's choice of society order system. We should develop a pluralistic society structure and attach importance to the nongovernmental rules. Thirdly, it introduces the inspiration of the nomos to our country's market legislation. The nomos is a rule that goes against the planned economy. Now we need to eliminate the remnant of planned economy, so we have to obey the requirement of the theory of the nomos and dispel the remnant of planned economy in law.