Hayek's nomos vs thesis

Prof. Aeon Skoble writes- 

In his three-volume study Law, Legislation, and Liberty (1973, 1976b, 1979), Hayek makes a key distinction between what he calls thesis, the law of legislation, and nomos, the law of liberty.

The first is positive law- i.e. law as command. The second is like the 'Law Merchant' which evolved by itself. However, the Sovereign can command the codification of such customary practices and this may be useful in itself. Equally, as case law develops, 'nomos' becomes 'positive law'. 

The former is imposed by the sovereign, in what Hayek describes as a top-down, coercive process; the latter is evolved, a spontaneously-emerging (or bottom-up) process.

But the sovereign evolved out of a 'spontaneously-emerging' process. Indeed, everything did.  Hayek, having destroyed his brain by teaching a shit subject- i.e. economics- was making a distinction without a difference. The fact is any type of law is costly to enforce. Moreover, whether or not a 'vinculum juris' exists is itself a justiciable matter, though this too involves using up scarce resources.

While thesis reflects primarily the interests of the sovereign (or ruling class generally),

Fuck off! The USSR had lots of nice laws which only Gorbachev was foolish enough to study, but those laws didn't mean shit. The primary interests of the Dictator and his nomenklatura had to do with living large while killing 'dissidents' and laughing heartily at the proles queuing up to buy rotten turnips.  

nomos arises out of human interaction –

Did you know that Kingji never bumps ugly with Queenji? Prince of Wales was born from a whale.  

the many iterations of people seeking more effectively to coordinate their actions and to resolve disputes peaceably.

The Bible tells us that first there were Judges and then there were Kings. I think Kings could make a profit by 'netting out' competing claims arising out of vendettas. Later, they could levy taxes in return for providing public goods like national defense and law enforcement.  But nothing comes for free and, at the margin, both types of protection might be denied. 

(Some legal historians have argued that Hayek conflates common law and customary law, but this doesn’t undermine the thesis/nomos distinction.)

What undermines it is the demand for 'codification' so as to reduce ambiguity and promote trade and enterprise. In other words people spontaneously badger the Government for legislation of various types. Being King aint so great because you have to appear to give ear to an endless stream of petitions demanding the enactment of laws on various subjects.  

As we shall see, Hayek argues that it is nomos that is critical for liberal political and economic theory.

Hayek says ' (Nomos) are discovered either in the sense that they merely articulate already observed practices or in the sense that they are found to be required complements of the already established rules if the order which rests on them is to operate smoothly and efficiently,

In other words, rules either exist or are invented because some people say the want them. Thus they are 'game theoretic'- i.e. strategic. They are not 'natural' but arbitrary. They create 'uncorrelated asymmetries' which become the foundation of 'bourgeois strategies'. John Maynard Smith showed that 'Physis'- i.e. the Natural World- has this feature, at least when it comes to things which evolved by natural selection. But, it may be, the same thing is true of the Universe. 

Hayek had not kept up with advances in Evolutionary Biology which utilized game theory. He was defending an old fashioned type of 'natural law' which Nature itself does not adhere to- at least for biological organisms. By the end of the Sixties, various mathematical results had thrown doubt upon 'naturality' (non-arbitrariness) as arising in optimization problems. Why? Firstly, there was the difficulty of accessing unbiased information. The 'ugly duckling theorem' threw doubt on this. Second there was the concurrency problem made famous by Djikstra. Then, there were problems of computability, complexness and completeness. In other words, 'naturality' might exist at the 'end of mathematical time' or 'in the mind of God' but then again it might not. What is certain is that it is inaccessible.

I suppose economists who read Hayek- or got their g.f to do it for them- thought the cretin might be groping towards something like the folk theorem of repeated games- which basically says anything you can do with coercion can also be done without it if you get the incentive matrix right. However, this isn't actually true. Being executed aint the same thing as losing money. When it comes to the law, what matters is that the government survive to kick enemy ass and fuck over robbers and rapists. This has nothing to do with 'thesis' or 'nomos' or any other such shite. It's about kicking ass with vim and vigor and having the money to hire more ass kickers than the enemy.