The Invisible Hand in Legal and Political Theory

Essay — Volume 96, Issue 6

96 Va. L. Rev. 1417
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Theorists have offered invisible-hand justifications for a range of legal and political institutions, including the separation of powers, free speech, the adversary system of litigation, criminal procedure, the common law, and property rights. These arguments are largely localized, with few comparisons across contexts and no general account of how invisible-hand justifications work. This essay has two aims. The first is to identify general conditions under which an invisible-hand justification will succeed. The second is to identify several theoretical dilemmas that arise from the structure of invisible-hand justifications and that cut across local contexts. These are the dilemma of norms, which arises because norms of truth-seeking, ethical action or altruism can both promote and undermine the workings of the invisible hand; the dilemma of second best, which arises because partial compliance with the conditions for an invisible-hand justification can produce the worst of all possible worlds; and the dilemma of verification, which arises where theorists claim that an invisible-hand process functions as a Hayekian discovery procedure — a claim that is empirical but pragmatically unverifiable.

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  Volume 96 / Issue 6  

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By Orin Kerr
96 Va. L. Rev. 1241

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Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism

By Martin H. Redish & Colleen McNamara
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The Invisible Hand in Legal and Political Theory

By Adrian Vermeule
96 Va. L. Rev. 1417