Legal scholars and economists alike have been quite critical of F.A. Hayek’s legal theory. According to Richard Posner, Hayek’s legal theory is “formalist” and serves as a useless guide for legal scholars and judges. Alan Ebenstein claims that Hayek’s arguments in technical economics fail. Therefore, Hayek’s research program in economic science should be abandoned, but his program in social philosophy should be preserved. We argue that these criticisms are misplaced, and we contend that Hayek’s legal theory cannot be separated from his economic theory. To establish this point, we trace the evolution of Hayek’s thought from his earlier writings in technical economics to his later writings on legal theory. Both Posner and Ebenstein fail to appreciate the subtlety of Hayek’s legal theory because they understand Hayek’s work in law in isolation from his work in economics.
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