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Thematic Issue: Law and Economics/General

Property as Emergent Order: Explanations and Limitations


Michael JR Crawford

By dint of our professional training, we lawyers often suffer from ‘legal centrism’; the belief that the positive law is the dominant, if not the sole, source of norms in society. The primary purpose of this article is to demonstrate that this view of social order is mistaken. By piecing together insights from the spontaneous order tradition, it is argued that many of the basic norms that allow us to peaceably deal with the fact of scarcity emerged spontaneously, without the aid of courts or legislatures. However, whilst such norms are ‘indeed the result of human action, but not the execution of any human design’, it remains true that they are subject to fundamental structural limitations and, in many cases, can be improved upon by the ‘made order’ of the positive law.

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(2022) 45(3) UNSWLJ 914: