Abstract
Friedrich Hayek’s Law, Legislation, and Liberty noted a problem in the common law system: Sometimes, following judicial precedent would lead to unforeseen bad outcomes over time. No judge can anticipate all possible implications of a precedent-setting decision, and sometimes later judges, bound by precedent, will be forced despite themselves to elaborate the law in ever more inefficient or unjust ways. Hayek proposed that one role of the legislator was to correct such “dead ends” in the common law. This paper proposes that judges working within the constraints of the common law and given only the tools Hayek himself allowed them are capable of escaping such binds on their own. It uses historical examples from the era of coverture to support this claim. Not only were judges willing to identify exceptions to coverture, these exceptions helped pave the way for coverture’s eventual abolition. This process is examined and found to be otherwise consonant with Hayek’s larger theory of the common law as a rule-finding process.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Hayek himself does not use the term “local minimum,” but it should become evident from the passages cited below that the term accurately describes his view.
In the cited passage, Hayek adds that legislators may have a role to play in crafting rules for wholly new circumstances, as well as for the internal ordering of government business. Such claims are beyond the scope of this paper, which does not mean to argue that legislatures are unnecessary. It contends only that they may be unnecessary for the specific purpose of escaping local minima in a system of judge-made law, under certain conditions. Legislatures may also play a useful role in the face of wholly new technological developments, in that organic developments from earlier law may prove inadequate in the circumstances they present. How one distinguishes such circumstances, or whether one can reliably do so, are questions also beyond the scope of this paper.
For that matter, there are few remaining areas of the “common law” on which legislatures have never touched, whether or not these areas represent local minima (Rubin 1982).
There is a net decrease in dissatisfaction with the result set because fewer people are wronged according to our lights under the new precedents. We may, however, be more dissatisfied with the judicial process, given that with its several exceptions it is now a good deal less elegant. This secondary dissatisfaction can only be remedied by moving toward a rule—any rule—to remove the inelegance.
If we wished to account for all relative levels of certainty for all rules in a manifold described by n rules, we would quickly encounter some very difficult geometry in the higher dimensions. For better or worse, these problems are not mere flights of fancy. Hayek himself stresses that judges must choose from a potentially infinite set of conceivable rules: “Since new situations in which the established rules are not adequate will constantly arise, the task of… delimiting the range of permitted actions is of necessity a never-ending one… (Hayek 1973: 119).”
Given this infinity and the further infinity of degrees of social expectation attached to each rule, we confront what appears to be an insoluble problem and a near-perfect parallel to the socialist calculation problem in the spontaneous order of the market.
The generic use of the male pronoun will always draw a comment; the only response needed here is that, as far as I know, nothing Hayek ever wrote about distributed knowledge implied that women have a lesser share of it. The consequences are obvious enough for women in a free society.
For more on the process of immanent critique, see Hayek (1976: 24).
Although the common law is moribund today as a system of articulating custom and expectation, other such systems exist. One of the most vibrant is the community at Wikipedia, which resolves disputes in a way that appears, at least to my own superficial understanding, a lot like those of the early common law judges. Disputes are aired, evidence is examined, rules and expectations are compared, and a verdict is rendered for the issue at hand. The extraordinarily swift emergence of such online intentional communities and the rulemaking procedures they develop seem to be fertile ground for scholarship in the Hayekian tradition.
References
Baker, J. H. (1979). An introduction to English legal history (2nd ed.). London: Butterworths.
Barber v. Barber (1858) 62 U. S. 582.
Blackstone, W. (1753) Commentaries on the laws of England in four books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s analysis, and additional notes, and a life of the author by George Sharswood. In two volumes. (Philadelphia: Lippincott, 1893). Citations omitted. http://oll.libertyfund.org/title/2141. Accessed 22 April 2010.
Desan, S., & Merrick, J. (Eds.). (2009). Family, gender, and law in early modern France. University Park: Pennsylvania State University Press.
Hartog, H. (2000). Man and wife in America: A history. Cambridge: Harvard University Press.
Hasnas, J. (1995). Back to the future: From critical legal studies forward to legal realism, or how not to miss the point of the indeterminacy argument. Duke Law Journal, 45, 84–132.
Hasnas, J. (2004). Hayek, the common law, and fluid drive. New York University Journal of Law & Liberty, 1, 79–110.
Hayek, F. A. (1960). The constitution of liberty. Chicago: University of Chicago Press.
Hayek, F. A. (1973). Law, legislation, and liberty, volume I: Rules and order. Chicago: University of Chicago Press.
Hayek, F. A. (1976). Law, legislation, and liberty, volume II: The mirage of social justice. Chicago: University of Chicago Press.
Hogue, A. R. (1966). Origins of the common law. Indianapolis: Liberty. 1985 (reprint, Indiana University Press).
Maramus Amperse et al. v. Augustus D. Burdeno. (1866) opinion cited in American Law Register 14(5), new series vol 5, 277–78.
Posner, R. (2005). Hayek, law, and cognition. New York University Journal of Law and Liberty, 1, 151–152.
Rubin, P. H. (1982). Common law and statute law. The Journal of Legal Studies, 11(2), 205–223. http://www.jstor.org/stable/724199/. Accessed 4 June 2010.
Sandefur, T. (2009). Some problems with spontaneous order. Independent Review, 14(1), 5–25.
Treggiari, S. (1991). Roman marriage. New York: Oxford University Press.
Acknowledgments
I am indebted to Miles Pope and Sariah Sheikh for their constructive input during the writing this paper. I am also indebted to Brink Lindsey for reading earlier drafts and providing feedback and to my partner, Scott Starin. Lastly, I would like to thank Liberty Fund, Inc., for recently prompting me to read and re-read the works of Friedrich Hayek as part of its ongoing conference series, a process that also produced this paper.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Kuznicki, J. Law, legislation, and local minima: Solving a problem in Hayek’s theory of common law judging, with historical examples. Rev Austrian Econ 24, 293–309 (2011). https://doi.org/10.1007/s11138-010-0136-y
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11138-010-0136-y