On Hayek' Legislative Thought

In the twentieth century of western intellectual field,Friedrich August Von Hayek is undoubtedly an extremely important figure.However,it is difficult to grasp it because of the complexity of his theory.So, his thought are misunderstood by many people, also many people read his thought by an impressionistic way,the result is that his thought become fragmented , illegible and more difficult to spread. So, in order to avoid misunderstanding it and understanding it by an impressionistic way,I focus on reading through the "law,legislation and freedom"(three volumes) and his other writings in order to grasp his general idea.Meanwhile,from the information gathered by author and reading the current scale, domestic and foreign scholars, although from a different point of view of Hayek studied, but they often take on the macro, almost no fine and systematic exploration expertise to Hayek'legislative thought, he has not done the system to discuss legislative issues, but his legislative thought as a part of whole system will be meaningful, it will not only rich theory of our legislation, but also provide services for the legislative practice. So based on that,with the beginning of Hayek'legislative thought, by discussing the position of legislation in his system,furthermore, achieving the theoretical foundation of legislation,one can comprehend the basic content of his legislative thought,in order to reveal his legislative thought as soon as possible.In this paper, the theoretical basis of legislation will be discussed first(methodological individualism, epistemological kantianism, rational limit and spontaneous order),by which one can understand its theoretical background more fundamental and more profound . This section includes four parts:1.Discussing the methodological individualism to lay the foundation for his legislative thought;2.Discussing the epistemological kantianism to not only lay the foundation in the epistemology for his legislative thought, but also pave the way for the rational limit;3.Rational limit,which is providing a direct basis for his legislative thought(the legislation has its own necessary limit);4.The elaboration of spontaneous order is actually providing a basis for his legislative thought from the other side. In short,these four aspects together form the theoretical basis of Hayek'legislative thought.Secondly,on the basis above, discussing in detail the limit on the content of legislation.In this part, on the basis of classification about two kinds of rules(exogenous rules and endogenous rules),the legislation for each of them will be defined:For the legislation of the exogenous rules,it is main to prevent them beyond the scope which the exogenous rules should and able to adjust, by this method, the freedom and spontaneous order will be prevented breakage;For the legislation of the endogenous rules,stressing that it is a process of discovery, rather than deliberate process of construction,even if that,the discovery must be under a given framework,under which,the rules can be fixed in the details.Thirdly,based on the above,discussing the legislation standard in detail to gain a clear idea of legislative scope.In this part,not only discussing the difference and relationship between Hayek' meta-legal doctrine and legal positivism,but also discussing the relationship between Hayek' meta-legal doctrine and the concept of natural law which has a long history in the west.Finally in this part , the relationship between Hayek' meta-legal doctrine and the constitution will be discussed.Fourth,discussing in detail the institutional construction of Hayek'legislative thought.In this part, by discussing it, one can gain a clear idea of Hayek'legislative thought, also one can see an institutional scope of legislation,even if which has a very strong utopianism.Last but not the lest, on the basis of practice and history of china,one can get some inspiration:Legislation is neither a panacea,and without doubt the significance of its existence;Legislation is neither incapable nor arbitrary,but something must follow the laws of its own unique.In short, the legislation has its own necessary limit.