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.