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Conceptualizing CapitalismInstitutions, Evolution, Future$
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Geoffrey M. Hodgson

Print publication date: 2015

Print ISBN-13: 9780226168005

Published to Chicago Scholarship Online: January 2016

DOI: 10.7208/chicago/9780226168142.001.0001

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Law and the State

Law and the State

Chapter:
(p.76) Chapter Three Law and the State
Source:
Conceptualizing Capitalism
Author(s):

Geoffrey M. Hodgson

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226168142.003.0003

Chapter 3 clarifies the nature of law, criticizing the idea that it can emerge spontaneously through the interactions of individuals, and rejecting the notion (promoted by Friedrich Hayek among several others) that law is essentially custom. Instead it is argued that the development of law required a state and an institutionalized judiciary. Although all law depends to a degree on custom, and there are examples of spontaneous emergence of legal rules, it is difficult to see how a full legal system could emerge as a spontaneous order and obtain a critical mass in large, complex societies. Crucially, law must suppress and divert all rudimentary punitive emotions into legal channels, and build on long-evolved dispositions to adhere to moral rules and to obey authority.

Keywords:   law, custom, the state, Friedrich Hayek, spontaneous order, punishment, obeisance

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