Jim Harris Anniversary- 29/11/2009

Jim died one year ago today. He has been much in my thoughts this past year, and I have missed him a great deal. In particular, I have missed his bubbling energy, his many emails, the verbal battles at libdins, the do-it-yourself seminars at Golden Gate. We are all the poorer for his passing.

As a tribute to Jim I have posted here one of the last discussions he initiated on 6th September 2009, on the subject of law. I have also posted the various replies to his original post. I have no doubt Jim would have objected to this, on a number of grounds.  But so be it.

I like this from Café Hayek. It disentangles for me the legalistic meaning of the word ‘law’ that I have come to distrust so deeply (here I’m afraid I blame legal chaps who don’t try hard enough to talk ordinary English), and the real meaning of ‘law’ that I’m happy to use instead … call it community norms, or commonlaw, or whatever. It restores meaning to the term ‘rule of law’ and enlightens for me our (JH/GZ) year-old findings about which measured components (factors) actually combine best (weightings) to correlate with the fast economic growth which I naturally assume is a universal feature of free societies where true rule-of-law prevails. I’m much more interested in judges as arbitrators beholden to local communities, than in shenanigans by the likes of Hlope and Motata and the JSC. I wish our pretty-good Concourt would move along faster in striking down most existing statutory law. Perhaps I can also blame ‘lawyers’ for not bringing enough well-formulated cases to Concourt. Maybe the old CFF list of possible cases should be dug up … but again, did you got a sponsor?!


Hayek outlines a particular view of what judges should do–they should discover the law. Hayek was making a profound distinction between law and legislation. Law is what emerges from our behavior interacting with each other and it evolves. Legislation overlays that and effects it. But what judges should do when deciding a case is to discover what our expectations were of the behavior of the people we interact with.

To use the example from the podcast, suppose I buy a house from you and you promise in the contract to deliver it in “good condition.” What does that mean exactly? Each of us has an expectation of what that means in America in 2009 and it’s probably different from what it would be in Argentina in 1875. In America, if I buy a house from you and find a lot of your stuff still here because you didn’t have time or didn’t want to bother with clearing it out, you probably have not fulfilled the contract. In another time and place, that might be a feature not a bug.

But the way I understand Hayek is that if I take you to court because I don’t think you lived up to the contract, then the goal of the judge isn’t to figure out what the legislature meant if it mandated a house being turned over in “good condition” but rather what you and I would expect from each other in such a situation.

Expectations are crucial because they allow me to plan with some measure of certainty, using the information that I have (and that others may or may not). So for Hayek, norms are crucial in helping us to interact and are essentially what he calls law.




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  1. #1 by Trevor Watkins on November 29, 2010 - 6:09 pm

    From Gavin Weiman,

    The only problem Jim, is that since nation states came into existence, it developed a ‘sovereignty norm’, namely that ‘legislation’(also called ‘civil law’) overrides ‘law’ (norms, customary law or common law’) where these compete.

    Since law is not ‘made’ in any literal sense, but arises from ‘human conduct and not from human design’ (to use Hayek’s famous formulation) and legislation (is made by parliament of 51% representing an untested 51% view of the population), there is a significant difference between the rule of law and rule of legislation.

    Indeed, ‘rule’ of law no longer means: that actions ought to conform to law (the common law or reasonable expectations). The rule of law now means: actions must accord with the expanded conception of LAW, meaning the common law as amplified or amended by legislation.

    Our Constitution goes further and tests both the unmade customary norms (common law) and legislation to its standard. Some say this IS the rule of law, other suggest it creates a discretionary realm for judges of the constitutional court not to ‘find the law’ but to reinterpret or create it. To judges rule of law means: actions authority must obey the judgments of the court.

    The problem with legislation and bills of rights is that it allows ‘law’ to be modified rapidly thus making it increasingly difficult for the law to be part of a commonly understood tradition in which ‘ignorance of the law is no excuse’ and in which people can formulate ‘expectations’ reliably.

    Today you need legal advice to help you understand what to expect and every time new legislation comes out even lawyers have to speculate what it means until the court ruling start emerging. Thus we end up with the rule of uncertainty (at least some of the time).


  2. #2 by Trevor Watkins on November 29, 2010 - 6:10 pm

    From Garth Zietsman,

    I’ve always understood Rule of Law to mean that authorities have to follow principles encapsulated in a set of rules rather than use their discretion when dealing with the public. The idea as I understood it was to remove the element of interpersonal influence when judging disputes, to encapsulate wisdom (so judges don’t have to reinvent the wheel) and introduce a measure of predictability.

    I didn’t understand it to be a squabble between two different forms, or sources, of rules.

    Am I mistaken?

  3. #3 by Trevor Watkins on November 29, 2010 - 6:11 pm

    From Gary Moore,

    I agree with Jim’s description of common law as opposed to legislation, and with Garth’s point about the rule of law. Authorities’ powers are largely derived from legislation not common law, so the rule of law is often about whether the authorities followed the legislation when exercising the powers…

  4. #4 by Trevor Watkins on November 29, 2010 - 6:13 pm

    From Garth Zietsman,

    Jim’s skepticism about the Rule of Law is that laws imply enforcers and therefore a lack of consent at some point, and also they limit what free adults can agree to do. Others say that laws tend to restrict violations of freedoms e.g murder, theft, etc. There is something to be said for both points of view.

    At the FMF AGM I heard that SA makes 100 new laws per year. Perhaps some of these replace bad ones and some old ones are scrapped but I believe that isn’t the case – many Apartheid laws are still on the books for example. I imagine (please correct me if I’m mistaken) that very few laws are primarily protective of basic liberty. If that is the case then the number of laws is a rough guide to our lack of freedom. A more accurate index would weight the laws in some way, and perhaps correct for enforcement levels, but I’m not sure the gain would outweigh the difficulty.

    Another index would be a legal inequality index i.e. the proportion or number of laws that apply to only a segment of the population e.g. men or women, young or old, black or white.

    Do you think such an index would have any validity and reliability, or am I just blowing smoke?

  5. #5 by Trevor Watkins on November 29, 2010 - 6:13 pm

    From Gary Moore,

    Garth, I think such an index would have a lot of validity and reliability, and could be applied as an impact assessment regarding existing and proposed legislative measures.

  6. #6 by Trevor Watkins on November 29, 2010 - 6:14 pm

    From Neil Emerick,

    Regarding norms and law, I have my layman’s opinion to add:

    I am uncomfortable with Hayek’s description of the ‘discovery of the law’. I
    think this puts things round the wrong way.

    Judges are human beings and are required to make decisions which have legal
    implications. In setting precedent they can change whole substructures of

    In this respect, judges MAKE law, they do not discover it.

    I may be arguing semantics, but I think they try to ensure that good law
    stays close to the current norms of society (abortion being a good example).

    In this respect, I would argue that the phrase “to discover law” should
    rather be interpreted as “judges discover norms and set law accordingly”


  7. #7 by Trevor Watkins on November 29, 2010 - 6:15 pm

    From Gary Moore,

    I think judges by hearing disputes, and the parties’ (or their legal representatives’) arguments about what rights and obligations apply to disputes of that kind, discover what are the best commonly-held common-sensical rights and obligations to apply to disputes of that kind and adjudicate according to those discoveries. These discoveries will not vary much at all in cases of disputes of the same kind. I prefer to say that the law applies, and judges merely say which party is entitled to the relief which the law affords. I think the common-law rule that murders should not go unpunished is a widely-held rule among the people and was not enacted by a particular judge. I don’t like the approach that judges make or enact law or legislate. They discover the so-called unwritten or common-law rules and (alas) interpret the legislatures’ enactments, and apply these rules or enactments to the facts of the cases before them…

  8. #8 by Trevor Watkins on November 29, 2010 - 6:15 pm

    From Neil Emerick,

    Like I said, I might be arguing semantics, but to clarify:

    > I prefer to say that the law applies, and judges merely say which party is
    entitled to the relief which the law affords.
    > I think the common-law rule that murders should not go unpunished is a
    widely-held rule among the people and was not enacted by a particular judge.

    I don’t like this because it gives some kind of objectivity to the law.

    The reality is that somewhere in the deep history of man, people found the
    norm to be that murder (under certain circumstances) was not ‘right’. Judges
    then created law by stating what the norm was. The discovery for the judge
    was of the norm, not the law. They create the law.

    Subsequent acts of a similar nature become punishable by law which hopefully
    reflects the social norm.

    It is obvious that norms will change (on slavery for example) and judges
    will alter the law accordingly.

    In this respect, the law follows the norm.

    It is conceivable that the law is out of step with the norm, in which case
    we cannot say the ‘law has been discovered’. It is the norm that corrects
    the law.

  9. #9 by Trevor Watkins on November 29, 2010 - 6:16 pm

    From Gavin Weiman,

    From Gavin: Why are we having this conversation?

    Anyway – there are many ways in which it can be conceptualised.

    In my mind, what the common law judge does is more a process of inquiry to
    determine, as far as humans can do, what the common or objective morality is
    by searing for approach or reasonable men. Human fallibility, subjectivity
    does no guarantee success with this endeavour, but over time the reasonable
    / objective view emerges through the precedent systems, reviews and views of
    jurists. A sort of judicial consensus or the principles of the common law
    emerges – one judgement at a time.

    The common law judge is not engaged in a search for ‘norms’ but for ‘law’,
    a particular type of norm that carries with it a particular type of view
    about transgressions – namely that they ought to be sanctioned, because
    conformance to this law/norm has social significance in the minds of
    reasonable persons.

    When the common law judge passes judgement he ‘declares’ the law rather than
    ‘makes’ it. In his mind it has always existed and the courts enquiry has
    both revealed it and by passing judgment ‘fixes’ it as law.

    So I agree with Heyek that he ‘finds the law’. Having found it he ‘makes it
    ‘objective’ law and it becomes binding through the common law mechanism of

    What he does not do, at least in his mind, is ‘make’ law – as a prince would
    do, by declaring his discretionary ‘will’

    Also the judge does not see his role in this as discretionary. In principal
    at least his attitude is that one the principle has been discovered, his
    duty is to apply it.

    The common law recognises that in some instance the judge must exercise a
    particular discretion, (heuristically expand to contract). The common law
    has found and fixed rules to guide judges in a) recognising those instances
    where a discretion is proper, and b) how to exercise a judicial discretion.

    That we are subjective humans, holding opinions, in search of the objective
    to which all opinions must give way – is the legal method. Judges have
    learned (or Hayek’s particular mode of thinking is suffused with this
    attitude) that in this humans may fail or produce unintended consequences so
    judges are extremely conservative, finding only so much of the revealed law
    is needed to solve their particular enquiry and extremely guarded about
    expressing opinions as to the further application of the law leaving it to
    the next judge to build or move along a different path.

    So when all is said and done – common law ‘lawmaking’ for ultimately this is
    what is done is as perfect a model for ‘creating’ law as man has been able
    ‘to discover’

    In fact in Hayek’s constitutional thinking he saw parliament as comprising
    the retired judges who became a ‘super court’ helping resolve juridical dead
    ends is a similar judicial manner.

    In all this I think Heyek the ‘doctor of laws’ was a great in his
    understanding of jurisprudence as he was an economist or social thinker.

  10. #10 by Trevor Watkins on November 29, 2010 - 6:16 pm

    From Garth Zietsman,

    This arguement is along the same lines as an argument still ongoing in mathematics – between the Platonists, Formalists and Intuitionists. The Platonists think maths is an objective reality independent of human minds which is discovered. The Intuitionists think maths only exists in human minds. A version of Intuitionism says maths is a cultural construct. The Formalists view maths as a sort of game like chess that is built on a few axioms. Hayek’s view is Platonist. Neil’s view is Intuitionist. I don’t know whose view is Formalist but I’m sure someone’s is.

    Kurt Godel destroyed Formalism’s hopes for completeness and consistency – and Wittgenstein’s language game outlook too btw – and he believed that proved that maths must be real and objectiv i.e. he made a case for Platonism.

    My view is with Neil when it comes to law. Law is a human construct that is invented not an objectve reality that is discovered – even, as in the case with maths, it seems unreasonably effective.

  11. #11 by Erich Viedge on December 9, 2010 - 9:21 am

    When I’m king of the world I will pass a law:
    Anybody passing a new law needs to scrap two other laws.
    I don’t think I’ll get any consent from the lawyers, that’s for sure!

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