Friday, 23 October 2009

Types of Rules

The different types of rules of conduct are named by Hayek as “articulated”, “unarticulated” and “implicit” (see “Law, Legislation and Liberty”, Chapter 4), following progressive degrees of abstraction. The “command” is an articulated rule which conveys a concrete purpose. The norms of just conduct may be articulated or unarticulated, but in both cases they will be purposeless. A leading case would be that whose solution was implied in unarticulated norms of just conduct. The new precedent invokes a norm not enunciated before, but being considered as just once it is articulated by the judge, because it expresses an implicit feeling of justice previously shared by everyone. The most difficult task in the Hayekian theory of law is to explain convincingly the sphere of the implicit norms just conduct. The norms of that kind inform our notion of justice, notwithstanding they are insusceptible of ever being fully stated or provided of a complete rational justification. In the Chapter Four of Law, Legislation and Liberty, Hayek explains that even the already articulated norms of just conduct rest on a background of implicit norms, which give sense to the former. This is a central issue for Hayek’s critical rationalism, whose implications reach his theory of democracy.

1 comment:

AL said...

I agree that implicit norms are especially problematic, but I think Hayek pays to little attention to the problem of judicially articulating previously unarticulated norms. He seems to believe that when an unarticulated norm is under discussion, there is only one "correct" solution that, once stated, will be accepted by almost everyone. But it may be the case that a unarticulated norm can have two distinct interpretations, forcing the judge to choose one path of normative development over another.