Hayek on The Judge

books quotes law common law classical liberalism hayek emergent order

06 Jun 2014

F.A. Hayek on the judge:

The judge, in other words, serves, or tries to maintain and improve, a going order which nobody has designed, an order that has formed itself without the knowledge and often against the will of authority, that extends beyond the range of deliberate organization on the part of anybody, and that is not based on the individuals doing anybody’s will, but on their expectations becoming mutually adjusted. The reason why the judge will be asked to intervene will be that the rules which secure such a matching of expectations are not always observed, or clear enough, or adequate to prevent conflicts even if observed. Since new situations in which the established rules are not adequate will constantly arise, the task of preventing conflict and enhancing the compatibility of actions by appropriately delimiting the range of permitted actions is of necessity a never-ending one, requiring not only the application of already established rules but also the formulation of new rules necessary for the preservation of the order of actions. In their endeavour to cope with new problems by the application of ‘principles’ which they have to distil from the ratio decidendi of earlier decisions, and so to develop these inchoate rules (which is what ‘principles’ are) that they will produce the desired effect in new situations, neither the judges nor the parties involved need to know anything about the nature of the resulting overall order, or about any ‘interest of society’ which they serve, beyond the fact that the rules are meant to assist the individuals in successfully forming expectations in a wide range of circumstances.

The efforts of the judge are thus part of that process of adaptation of society to circumstances by which the spontaneous order grows. He assists in the process of selection by upholding those rules which, like those which have worked well in the past, make it more likely that expectations will match and not conflict. He thus becomes an organ of that order. But even when in the performance of this function he creates new rules, he is not a creator of a new order but a servant endeavouring to maintain and improve the functioning of an existing order. And the outcome of his efforts will be a characteristic instance of those ‘products of human action but not of human design’ in which the experience gained by the experimentation of generations embodies more knowledge than was possessed by anyone.

Law, Legislation and Liberty: A new statement of the liberal principles of justice and political economy F.A. Hayek 113 Routledge. Kindle Edition.