Hayek and the Citation of Foreign Law
Steven G. Calabresi
Northwestern University - School of Law
Columbia Law School
June 18, 2013
Northwestern Law & Econ Research Paper No. 13-23
Northwestern Public Law Research Paper No. 13-23
In this paper, we set out to identify and articulate a Hayekian justification for Professor Jeremy Waldron’s proposed “ius gentium,” which he characterizes as an emerging global common law of legal norms, with a particular emphasis on human rights. Drawing on the writings of Friedrich A. Hayek in “Law, Legislation and Liberty,” we will explain how Hayek’s distinction between systems of spontaneous and planned order may apply to what Waldron calls the ius gentium and provides a better theoretical justification for it than that which Waldron puts forward. After reviewing some of the criticisms that can be levied against Waldron’s theory, we explore Hayek’s writings and how they apply to the ius gentium. We also explain why the ius gentium may be said to possess the characteristics that are present for “crowd wisdom,” or savvy and intelligent decision-making by large groups. Finally, we will examine five major criticisms that might be made against reliance on the ius gentium, and we will then attempt to offer some partial arguments in response.
Number of Pages in PDF File: 141
Keywords: United States Constitution, Empirical, Foreign Legal System, Natural Law, Common Law
JEL Classification: K10, K19, K33working papers series
Date posted: June 20, 2013 ; Last revised: August 9, 2013
© 2013 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo7 in 0.328 seconds