Hayek and the common law

At Cato Unbound the topic of the moment is Hayek and the Common Law.

Among non-economists, Nobel laureate Friedrich A. Hayek is perhaps best known for two things: his seminal book The Road to Serfdom, and his defense of the theory of spontaneous order. Briefly stated, the theory of spontaneous order holds that many of the most useful social institutions are the product of human action, but not of human design.

Examples abound. No one individual or committee sets market prices; those who have tried have always failed. No designer created the English language, and artificial languages have never met with any great success. Scientific discovery through repeated experiment causes truth to emerge, but scientific truth is not forged through rationalistic design. Instead, it is a product of many uncoordinated searches, serendipity, and replication across the scientific community.

Arguably the greatest example of spontaneous order outside the market, however, is the development of the common law, a legal tradition that proceeds incrementally, case by case, privileging precedent and continuity. No one individual or committee created the common law. Indeed, it is said that the common law is discovered by judges rather than created by legislatures. The common law is robust for the same profound reason that markets and language are robust, and each therefore deserves great deference.

Yet, argues lead essayist Timothy Sandefur, there are problems with the concept of spontaneous order, especially as it regards the law. As virtually everyone acknowledges, the mere fact that a law has been in force for a very long time doesn’t necessarily prove its rightness. Hayek, too, allowed that the common law may change over time, and he attempted to integrate this notion into the theory of spontaneous order. Yet there are clearly some changes that are not properly a part of spontaneous order. How do we separate the good changes from the bad? We must seemingly reach outside the spontaneous order for our normative supports.

Commenting on Sandefur’s essay will be legal and business scholar John Hasnas of Georgetown University, economist Daniel Klein of George Mason University, and economic historian and Hayek biographer Bruce Caldwell of Duke University.

Sandefur's essay is here, John Hasnas's comment is here, Daniel Klein's comment is here and Bruce Caldwell's comment is here.