Hayek, the Common Law, and Fluid Drive
New York University Journal of Law & Liberty, Vol. 1, 2004
50 Pages Posted: 8 Sep 2004
In 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, and the unplanned law that evolves out of the settlement of interpersonal disputes, which he calls the law of liberty. He then offers the law of liberty as the source of rules of just conduct: neutral, objective, universally-applicable rules that order human behavior; rules that can serve as the basis for a society that is truly governed by the rule of law. Unfortunately, Hayek's portrait of the law of liberty is confused by his failure to distinguish between customary law and common law. Although it is accurate to characterize customary law as law that evolves without a guiding intelligence, it is not accurate to characterize the modern common law this way. By conflating the processes by which customary and modern common law are formed, Hayek greatly weakens his case for the law of liberty as the basis for the ideal of the rule of law.
In this article, I provide and account of both customary and modern common law. I describe customary law as the law that evolves through the entirely back-looking effort to settle interpersonal disputes in a way that is fair to the parties. I then contrast this with the modern common law that is the law that evolves out of a simultaneously backward- and forward-looking process that considers both what is fair to the parties to the dispute and what will be beneficial to society in the future. I argue that it is the semi-legislative feature of the modern common law that gives rise to the legal realists' and critical legal scholars' objections to the concept of the rule of law, and, therefore, to the extent that Hayek incorporates the modern common law into his conception of the law of liberty, he undermines it as the basis for the rule of law. I close by suggesting that a system of contemporary customary law would not be subject to this objection, and therefore can theoretically provide a set of rules of just conduct that have the features necessary to ground a society truly governed by the rule of law.
Keywords: Hayek, rule of law, customary law, common law
JEL Classification: K1
Suggested Citation: Suggested Citation