The Review of Austrian Economics, 17:1, 41–65, 2004.
2004 Kluwer Academic Publishers. Manufactured in The Netherlands.
Spontaneously Evolved Social Order versus Positive
Legislation in English Constitutional History
ROBERT F. MULLIGAN email@example.com
Department of Business Computer Information Systems and Economics, Western Carolina University College of
Business, Cullowhee, NC 28723, USA; Department of Economics, State University of New York at Binghamton
Abstract. Medieval institutions contain an important strain of spontaneous order, especially from the pre-Christian
period. A series of irregular successions after the Norman conquest made royal charters increasingly important
in establishing the sovereign’s legitimacy. Henry I’s coronation charter (1100) formed the basis of Henry II’s
aggressive program of reform legislation, as well as for Magna Carta (1215). Henry II aimed at restoring the legal
and political institutions of his grandfather Henry I after a period of civil strife and social degeneration. The fact
that almost all later charters grew out of Henry I’s charter, combined with the fact that later charters expanded and
reﬁned legal and political institutions, establishes the evolution of spontaneous order in the English charters. This
evolution continued throughout the middle ages as subsequent kings conﬁrmed Magna Carta.
KeyWords: spontaneous order, English constitutional history, common law, positive legislation, liberal order
JEL classiﬁcation: K11, N43, P16.
How slender the basis must be on which the absolute monarch rears his selﬁsh designs;
how little the strongest will can direct the future course of events; how intrinsically
treacherous is the most perfect system and order that results from external will rather
than from permanent organisation under an internal law. . . .
William Stubbs (1874), Constitutional History of England 1:318
The doctrine of spontaneous order achieved a central place in economic and legal science
when Adam Smith (1776) described the interaction of market forces coordinating pro-
cesses of production, distribution, and consumption as the working of an invisible hand. Carl
Menger (1871) extended the application of spontaneous order to the emergence of commod-
ity money in a primitive barter economy and Ludwig von Mises (1912) contributed a highly
sophisticated theory explaining how ﬁat money can evolve from commodity money. Mises’
regression theorem ﬁlled an important gap in prevailing macromonetary economics, which
was unable to understand how ﬁat money could circulate at all. Hayek (1960, 1973, 1976,
1979) developed a theory of the evolution of democratic political and legal institutions re-
sponding to historical inﬂuences without the intelligent design of an authoritative legislator.
More recent scholarship (Berman 1983, Rizzo 1985, Friedman 1989, 2000, Benson 1990,
1998, 2002, Stringham 1999, 2002, 2003) analyzes the evolution of laws and other social