Thursday, November 03, 2011

Hayek: Mistaken Aout the Common Law

This is a good example of the sort of things historians can decide very definitively. Hayek held that the Common Law was a spontaneous, evolutionary development of customary law. But that is simply wrong. As Fukuyama notes, "the emergence of the modern rule of law was critically dependent on enforcement by a strong centralized state. This is evident in the very origins of the Common Law that Hayek celebrates" (p. 253).

He continues, "The Common Law is called common because it is not particularistic. That is, the myriad customary rules that governed the different regions of England were replaced by a single Common Law, in which a precedent in one part of the realm was applicable to the rest of the kingdom..." (p. 258)

And how did this happen? Well, it turns out that the king offered much better justice than had the customary law. For instance, the king provided "equal justice -- as opposed to the differential scale of wergelds dependent on the social status of the victim of an offense under customary law..."

This meant that "plaintiffs preferred to have their cases taken to the royal courts... the royal courts must have been perceived as being fairer and less biased in favor of the local lords, and better able to enforce their decisions" (p. 259).

He concludes: "A fair normative order also requires power... This is a point that Hayek and his libertarian followers fail to see: the Common Law may be the work of dispersed judges, but it would not have come into being in the first place, or been enforced, without a strong centralized state."

By the way, when anarchists are faced with the objection to private law that claims that this would simply allow the rich to buy their way out of trouble... well, what do they say, anyway? But we can see that the stateless Angles and Saxons had exactly such a system: if a rich man killed a peasant, he would simply pay the fellows minimal wergild, and that was that. But, if a peasant killed a wealthy person, the wergild would be many times as high.


  1. While I realize I wasn't in a position to evaluate Fukuyama's historical sources, his telling of events felt more asserted than shown to be the case.

    Even if Fukuyama is right, it hurts the work of modern anarchists, but not necessarily Hayek's actual meaning. Hayek argued for a) tinkering and b) cultural evolution through imitation, varying degrees of population growth, and military conquest, if memory serves correct. Britain hit on a good institutional arrangement because there was a polycentric political order in Europe that allowed for experimentation. Allowing for genuine social experiments are far more important to Hayek's late work than The Truefree Market is.

  2. Re-title this "mistakes in reading Hayek" ...

  3. Fukuyama, as you have mentioned, is no historian. He's got it backwards. He's saying here that the plantiffs preferred the royal court- why does he presume the royal court being preferred isn't the free market? The king had a better product!
    Now, the market leader in any field is often tempted to use coercion in order to maintain his position. Kings sometimes managed it. Unfortunately the bureaucrats and lobbyists of the modern state have done far worse.

  4. No, August, F. states explicitly that the king won out through a market choice -- he agrees with you.

  5. Document it, Fred. Otherwise, it's just empty words.

  6. Gene, did the defendants agree as well to take their cases to the king's court? (I'm not being sarcastic.) Or was it a situation like, "Sure, you can ignore this pending suit in the royal court, but if he finds against you, a bunch of guys with swords and horses are coming for you. So you probably should show up and defend yourself." ?

  7. What good a court is if any defendant can just ignore its edicts?

  8. He can't agree with me, or he'd agree with Hayek, or at least not bring Hayek up.

  9. "He can't agree with me, or he'd agree with Hayek, or at least not bring Hayek up."

    "This market-driven preference suggests that the royal courts must have been perceived as being fairer and less biased in favor of the local lords, and better able to enforce their decisions." TOOPO, p. 259

    So, perhaps not having READ THE FRIGGIN BOOK, like I have, you might stop and think, "Gee, the argument may have subtleties I'm not getting from a brief quote or two."

    But my guess is, probably not.

  10. Bob, Fukuyama's point seems to be that the defendants, when they were wealthy, had much the better of things in the traditional courts. So I imagine that, no, they did NOT want to use the king's courts, because they were more likely to side against them.

  11. Aside from using a neutral court (neutral till you gotta take a claim up against the king) another solution could have been to have a market for legal claims so that poor ppl can sell the proceeds of any legal victories to rich ppl who hate eachother.

    Its a shame history did not go down the latter path.

  12. So kinda grim, Avram.