- 作者：Van Den Hauwe ; L.
- 关键词：cultural evolution ; spontaneous order ; constitutional economics ; Hayek ; law and game theory
- 刊名：European Journal of Law and Economics
- 出版年：1998
- 出版时间：1998
- 年：1998
- 卷：5
- 期：1
- 页码：81-117
- 全文大小：162 KB
At whatever level an evolutionary perspective may be applied, it alwayspresumes the operation of three mechanisms: (a) a mutationmechanism, i.e., a process by which constantly variation and novelty areintroduced—in Popper's terms: new tentativesolutions—(b) a selection mechanism, i.e a process ofsystematic selection among the variants—in Popper's terms: a processof error‐elimination—(c) a replication mechanism, i.e., a process by which variants or tentative solutions are preserved,reproduced or propagated.
Although both economists and biologists resort to equilibriumexplanations—because a full and detailed specification of all causalforces cannot be given—the analogy between natural selection inbiology and evolutionary processes in human societies is not that close.
The selection mechanism that is operating in cultural evolution worksdirectly on the behaviour pattern itself, i.e., on the rules that governbehaviour, without necessarily wiping out unfit carriers. Moreover, culturalevolution—which is a matter of trial and error learning andimitation—is very fast when compared with genetic evolution.
Hayek works out the implications that follow from an evolutionaryepistemology for the issue of socio‐economic‐politicalorganization. His main subject is the social dimension of the knowledgeproblem or the problem of social learning. This problem has two distinctaspects.
Hayek's theory of the spontaneous order of the market—which is bestknown for its emphasis on the capacity of markets to utilize dispersedknowledge—delivers the insight that if we want to generate in societyany particular order of a certain degree of complexity, we should look forgeneral rules of conduct which, if followed by individuals, would tend toinduce that order to form spontaneously. Hayek presents an instrumentaljustification of a particular type of rules. Rules of just conduct exhibitcertain structural characteristics—they are negative,purpose‐independent, abstract, universal and permanent—butHayek's account offers only a very general schema which has to be filled inin detail.
As they are defined by Hayek, the general rules of conduct which allowfor the formation of spontaneous orders, are not necessarilyself‐enforcing in the technical game‐theoretic sense,contrarily to a widely held view.
It is Hayek's emphasis on the theme of the interrelation between thesystem of rules and its systematic outcome at the level of the order ofactions that qualifies him as a Law‐and‐Economics theorist.
Hayek's theory of cultural evolution suggests that the abstract ruleswhich contribute to the formation of a spontaneous order are themselves anunintended product of evolutionary processes. His theory of culturalevolution becomes disputable where it seems to argue that because of our“incurable ignorance” we ought necessarily to rely largely onunquestioned traditional rules instead of attempting to choose rationally orconstruct the system of rules that we want to follow.
The question of how the different kinds of rules differ in their nature(rules of conduct vs organizational rules) must be distinguishedfrom the question of how they originate (whether they“spontaneously evolve” or are “deliberatelydesigned”). The two dimensions are conceptually distinct.
The extension of the market analogy to the constitutional level,i.e., to the rules and institutions within which market coordination takesplace, is not corroborated by the game‐theoretic analysis ofinvisible‐hand processes. This analysis does not warrant theconclusion that invisible‐hand processes will always operate togenerate efficient results.
The game‐theoretic analysis involves several simplificationshowever. The arguments that are based on it cannot be consideredconclusive.
The most developed parts of the theory of cultural evolution are thetheory of nomos, as exemplified by the evolution of the common law, and thetheory of the role of the judge.
In the theory of the common law and the role of the judge the emphasis ison the coordination of individual activities through a process of systematicmutual adjustment of expectations. The function of the judge is to assure amaximal coincidence of—legitimate—expectations, i.e., to createa situation in which the chance to form correct expectations is as great aspossible.
The theory suggests that the role of the judge in making law is analogouswith the role of an entrepreneur launching a new product: the entrepreneuris consciously trying to make a profit, thus unintentionally contributing tothe overall allocation of resources. The judges, by upholding those ruleswhich make it more likely that expectations will match and not conflict, areconsciously trying to give greater internal coherence to the law. Each isunintentionally playing a part in the formation of a spontaneousorder—in one case, the body of the common law, i.e., a system of rulesof conduct conducive to the efficient operation of the order of actionswhich rests on it, in the other, the overall allocation of resources.
The analogy is not flawless: while it seems plausible to assume that theentrepreneur, when unintentionally assisting in the overall allocation ofresources, is trying to make a profit, i.e., is guided by the profit motive,it is not clear why we should assume that judges are guided by the searchfor greater coherence. With respect to the role of the entrepreneur,“private vices” may be supposed to coincide with “publicbenefits”, since only those entrepreneurs who de facto achievepositive profits in one way or another and can therefore be assumed to servethe interests of consumers better, will thrive and prosper, whereasentrepreneurs who do not succeed in doing so are eliminated sooner or later.But insofar as judges are public officials, the analogy seems to beparticularly weak. Judges hardly constitute a homogeneous group and theirinterests and motivation may be highly varied.
Insofar as judges adjudicate particular cases by means of custom andprecedent, stare decisis can be said to account for the transmission orreplication mechanism in the evolution of the law.
It is explicitly recognized that grown law requires correction bylegislation. It seems that legislation can be required both to generatenovelty—i.e., as a mutation mechanism—and to eliminate errors inpast developments—i.e., as a selection mechanism.
Evolutionary analysis as such does not provide us with a satisfactorynormative framework for comparative institutional analysis. Hayek's“limits of reason” argument implies that, at least to someextent, we will have to rely on the explorative potential ofopen‐ended, competitive, evolutionary processes and on the kind ofexperience that accumulates in trial and error learning processes. But itshould not imply that we adopt an attitude of uncritical acquiescence inevolutionary drift.
One direction in which such a framework for comparative institutionalanalysis has been explored recently, is provided by the research programmeof Constitutional Political Economy. The basic framework is derived from thecontractarian analysis of multi‐level individual choice.
An alternative direction in which the evolutionary perspective may beprovided with a normative benchmark consists of complementing it with arealist ethical theory. Popper has found in evolutionary theory a forcefulargument for objectivism and realism. An elaboration of this theme would gobeyond the scope of the domain of Law‐and‐Economics.