Research On Hayek's Dualistic Legal Concept

Hayek was considered to be one of the 20th century's greatest liberal thinkers. He constructed a complete and grand liberalism theory system. The field of study of Hayek was extremely extensive, involving the multi-discipline such as economics, philosophy, psychology, political science, law and so on. And he had quite contributed in these disciplines. In his long academic career, Hayek spared no effort to criticize all forms of collectivism, socialism and totalitarian. His unique liberalism theory had a profound influence not only in western but also in contemporary China. As Hayek spended all his life in the pursuit of freedom,his whole liberalism theory system was constructed for this purpose. Hayek's so-called freedom was the freedom under the law.Legal theory certainly was the foundation of his liberalism theory system, and dualistic legal concept was the core component of his legal theory.In Chinese academic circles, the study on Hayek has become an important learning. Scholars are researching Hayek's legal theory in order to point out a road that can be referenced for Chinese rule-of-law progress. The author thinks that this method is feasible,but we should do serious and in-depth research in Hayek's dualistic legal concept so that we can understand the essence of his legal theory accurately and comprehensively.This paper is divided into five parts such as introduction,part one,part two,part three and conclusion. In introduction, the author briefly introduces who Hayek is,his achievements,the situation of domestic and overseas scholars'research on his thinking and the derivation of this topic. Part one elaborates the theoretical basis of Hayek's dualistic legal concept. The author thinks that the theoretical basis of the theory is theory of knowledge and limited rationality theory. The existence of "separation of personal knowledge" and "tacit knowledge" is a premise of Hayek's concept of ignorance. Hayek accepts "evolutionary rationalism" by criticizing "constructivist rationalism". Part two elaborates the formation of Hayek's dualistic legal concept. Inherited the thought of Scotland moral philosophers, Hayek raised that "nature","artificial" and "action rather than human design" was different between each other. He also finded the difference between "spontaneous order" and "organizational order". On this basis, Hayek established "rule research paradigm" by distinguishing "action structures" and "rule system". He put the rules of social behavior into an research object of social theory. Part three elaborates the substance of Hayek's dualistic legal concept. Due to the establishment of "rule research paradigm", Hayek began to focus on and think about the law. He elaborated difference between internal rules and external rules,difference between public law and private law,difference between law and legislation. Finally, Hayek come to the formation of his dualistic legal concept. Conclusion elaborates the meaning of Hayek's dualistic legal concept. The author thinks that the meaning includes:becoming a fundamental challenge to legal positivism and rationalism natural law which play dominant roles in jurisprudence; making people can clearly recognize the establishment of free social order need two rules (internal rules and external rules) also play a role; preventing private law be bothered or replaced by public law in modern society; making people recognize the difference between law and legislation in order to prevent law and legislation be mixed.