Hasnas over Hayek

In de tekst 'Hayek, The Common Law & Fluid Drive' bespreekt Hasnas Hayek zijn Law, Legislation & Liberty.

In the first volume of Law, Legislation and Liberty, Friedrich Hayek distinguishes two types of law: the law that is consciously created through the political process, which he calls the law of legislation,1 and the unplanned law that evolves out of the settlement of interpersonal disputes, which he calls the law of liberty.2 In drawing this distinction, Hayek paints a portrait of the law of liberty that is simultaneously brilliant and inspiring, and utterly confused. How can it possibly be both?
The purpose of this essay is to answer this question and to resolve Hayek’s confusion.

Even later:

Hayek is conflating customary and common law.

Algemeen overzicht:

In what follows, I will attempt to smooth the road a bit. I will begin by providing a brief account of the nature of both customary and common law. In Part II, I will show that customary law is the law that arises out of human interaction to allow people to more effectively coordinate their actions. Customary law is truly a “grown” law and is a good example of what Hayek calls a spontaneous order. If legislation, which is an automated process for the conscious production of law, plays the role of the automatic transmission in my extended analogy, then customary law, which is the law that arises from the actions of individuals without conscious design, is the analog of a true manual transmission. In Part III, I will show that although early common law shared many of the features of customary law, modern common law—the common law of the last century and a half that Hayek refers to as judge-made law—is radically different and consists of a process of consciously shaping the law through interstitial changes, a sort of legislation at the margins. Continuing the automotive analogy, common law is the analog of fluid drive, a semi-legislative law. Finally, in Part IV, I will show how Hayek’s failure to clearly distinguish between customary and common law tarnishes the brilliance of several of his legal insights and weakens his argument for a society governed by a system of non-legislated rules. By disentangling the two, I hope to restore a bit of the luster to and strengthen the argument for Hayek’s conception of a law of liberty.

Een tekst die iedereen wel zou kunnen en moeten lezen.