From the Abstract:
Questions about the nature of informal social rules have become a major focus of attention in legal theory in recent decades. Friedrich Hayek worked out a systematic explanation of the emergence and dynamics of informal social rules that is multi-layered, accounting for the social rules and institutions we see in terms of deeper levels which are increasingly less obvious to the casual observer. The explanation relies on three fundamental ideas: the idea of a rule (and rule-following), of spontaneous order, and of evolution. The three ideas are interdependent parts of a single, integrated explanatory scheme, designed to show that key elements of social life are ordered — not the product of some designer, but rather the unintended consequences of impersonal and external forces operating on behavior and thought of human beings directed to other ends and purposes. Hayek’s theory of social evolution tells a story of rule-formation, rule-transformation, rule-transmission, and group rule-adoption. It introduces a level of complexity and a set of problems not encountered in biological evolution, for he seeks to explain the emergence and establishment of social rules in a group. To do this he must explain (i) how it is that rules emerge, which (ii) are social rules and (iii) the same rules across individuals, which (iv) then spread through the group as a whole. It is argued that he fails in the second and third of these tasks.
Download the full paper here: Gerald Postema, “Nature as First Custom: Hayek on the Evolution of Social Rules” (pdf)