Hayek on the Common LawMike Rappaport

Lately, I have been listening to Russ Roberts’s podcast interviews of a variety of economists. I am quite enjoying them.

In an interesting podcast, Roberts intereviews DonBoudreaux about Hayek s Law, Legislation and Liberty.  The two of them expound on Hayek s conception of the role of the commonlaw judge. They argue that the judgeenforces the reasonable expectations of the parties that exist in theirsociety, even if those expectations are not based on laws that are writtendown.

Boudreaux gives the example of a high school cafeteria,where individuals save their seats by putting their books down on a seat beforethey get in line for food. When theycome back to their books, they reasonably expect that their seat will be saved. If someone had taken theirseat, pushing their books aside, it would be the job of the common law judge toenforce their reasonable expectation that seats could be saved.

This is a good example to illustrate Hayek s conception of the common law, and it can be developed further than Boudreaux and Roberts do on the podcast to illustrate some other aspects of Hayek s theory. First, Hayek claims that judges are limitedto enforcing rules which can be known in advance, but this might be thought tobe in tension with enforcing an unwritten law. This example shows that there need not be a tension. If judges are enforcing existing customs,they can enforce unwritten rules, without “making up” the law.  Second, Hayek also says that judges are not making policy. Here, judges are simply enforcing the customsthat have developed.  Third, even thoughjudge are not making policy, Hayek imagines common law judges as enforcingrules of conduct that should promote desirable outcomes.  Because Hayek believes that the customs thatemerge tend to be desirable within an order, the enforcement of those customsand expectations will result in desirable rules, even though judges do notdirectly aim at developing a desirable rule.

The saving seats example can also be used to explicate the role of thejudge when deciding close cases. Supposethat someone saves a seat while he goes outside of the school for 30 minutes to buylunch. Or suppose that he attempts to save seats for his2 friends who have not arrived yet.  Inthese cases, the judge must decide what may not be an entirely clearresult.  The judge’s first job here is notto figure out what he thinks the rule should be but what people believe therule to be. What would people say aboutsaving a seat for 30 minutes? If theywould regard it as improper, then he should treat it that way as well. If the practice is not clear on this matter if people who understand the practice disagree in about equal numbers as to the properanswer then the judge will have decide what is reasonable. In doing so, he may consider what is moredesirable, but this analysis of desirability will be limited in the sense thathe will consider what is more desirable assuming the existence and desirabilityof the practice at issue as well as the remainder of the existing law. Thus, if he argued that the practice ofsaving seats was undesirable generally and therefore should be minimized andnot applied to the 30 minute situation, that would be inappropriate.  Instead, he would have to accept the valuechoices of the law that saving seats makes sense in at least the core circumstances and then to reason out a desirable solution.