Most advocates of individual liberty who are fond of Hayek`s work usually show disregard for the value of written bodies of laws and praise the judge-made law systems. In fact, Hayek, at the beginning of chapter 5 of Law, Legislation and Liberty, stated that “the ideal of individual liberty seems to have flourished chiefly among people where, at least for long periods, judge-made law predominated.”
But this citation is moderated by the whole book which it is taken from. What Hayek posited was a matter subject to probability. Laws emerging from judiciary precedent are more likely to be purposeless and oriented to fulfill expectations of what is to be regarded as just conduct. Since the written law is sanctioned by a legislator, the temptation to provide the law with a certain purpose and a social design is hard to be resisted.
Nevertheless, Hayek admitted that the legislation must act in order to prevent judges from obeying certain interests of a particular group or class –in which case a judge-made law would be purpose-oriented and a menace to individual liberty. Furthermore, Hayek stated that it is possible for codified system of law to articulate a set of norms of just conduct so long as they were not orientated themselves towards any particular aim.
2 comments:
"Indeed, the rules of property, contract, and tort can be understood as general plans whose function is to created the conditions favorable for order to emerge spontaneously. Rather than acting as visible hands directly guiding economic decisions, they provide market actors the facilities to cary out their own profit-maximizing plans so that overall economic efficiency will be maximized in the process." Scott Shapiro LEGALITY (Harvard UP, 2011) page 134
Sheldon asked me for reposting his comment in order to correct a pair of typos. Anyway, thank you very much Sheldon for your contribution!
“Indeed, the rules of property, contract, and tort can be understood as general plans whose function is to create the conditions favorable for order to emerge spontaneously. Rather than acting as visible hands directly guiding economic decisions, they provide market actors the facilities to carry out their own profit-maximizing plans so that overall economic efficiency will be maximized in the process.” Scott Shapiro LEGALITY (Harvard UP, 2011) page 134
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