My new working paper (with Anthony Sanders) on "Posner, Hayek and the Economic Analysis of Law" has just been posted on SSRN here.
Here's the Abstract:
This Essay examines Richard Posner's critique of F.A. Hayek's legal theory and contrasts the two thinkers' very different views of the nature of law, knowledge, and the rule of law. Posner conceives of law as a series of disparate rules and as purposive. He believes that a judge should examine an individual rule and come to a conclusion about whether the rule is the most efficient available. Hayek, on the other hand, conceives of law as a purpose-independent set of legal rules bound within a larger social order. Further, Posner, as a legal positivist, views law as an order consciously made through the efforts of judges and legislators. Hayek, however, views law as a spontaneous order that arises out of human action but not from human design. For Hayek, law as a spontaneous order - of which the best example is the common law - contains and transmits knowledge that no one person or committee could ever know, and thus regulates society better than a person or committee could. This limits the success of judges in consciously creating legal rules because a judge will be limited in the forethought necessary to connect a rule to other legal and non-legal rules and what Hayek termed “the knowledge of particular circumstances of time and place.”
This Essay also explores Posner's argument that Hayek misunderstood the “rule of law” as the “rule of good law.” Contrary to Posner, in the view Hayek came to espouse in his later work, the common law embodies the rule of law in a way that positivist creations of law do not. When judges consciously make law it is those human actors, not the “law” as such, that “rule.” When law arises out of a spontaneous order, however, it is the law that rules. Judges merely articulate it. Posner does not distinguish between these two processes, and therefore sees a difference between the “rule of law” and the “rule of good law” which Hayek does not. This is because for Hayek the “rule of law” is only meaningful in a liberal society where law arises out of a spontaneous order.
Comments are appreciated.
Comparing Posner to Hayek is like comparing an intellectual giant (Posner) to an emotional and fearful little mouse (Hayek) who was excessively paranoid about slippery slopes. I am sorry, the views libertarians worshippers aside (whose views can be discarded without serious consideration, because their top-down generalizations should not be taken seriously) it is clear that Posner is in a higher intellectual class than Hayek. To compare them insults Posner.
How do you combat absurd ideas based entirely on emotion and religious metaphysics?
Not all arguments are subject to rational rejection. If someone says, "I think cannibalism is good" there is not really a rational argument against that. You might respond, "You wouldn't want to be eaten, would you?" They might respond, "I believe in survival of the fittest. I am pretty fit." And then you might suggest that they won't be the fittest forever. Then they might say, "I can live with that."
All of this is just masquerading as a rational argument. For some ideas, such as those that are based primarily on religious metaphysics. As when someone says, "Only those legal decisions that aren't conscious can be said to be law. When judges make conscious decisions, we are ruled by those judges, not law. But when they make non-conscious decisions, we are ruled by law, not judges."
See, the problem here is that the metaphysical distinction here is entirely religious. The same response is appropriate for Hayek's fearful irrational paranoia regarding slippery slopes. I have no intention of comforting Hayek's irrational fears. Instead, condescension is more appropriate. Cannibals are not wrong and immoral for purely rational reasons. After all, from the perspective of physics, cannibalism is nothing more than a rearrangement of atoms in the universe. We don't merely make purely rational arguments against cannibalism, instead we morally condemn cannibalism.
At some point, emotional and religious convictions are on a different dimension than reason or rational argument. No purely rational argument is going to soothe Hayek's irrational fears. No purely rational argument is going to strike down his religious methaphysics that is impervious to reason.
Sure, Hayek's distinction, is in part wrong for rational reasons. It is not true that judges can be said to ever be non-conscious concerning their decisions and its likely affects. But then, on the other hand, one cannot prove conclusively through rational argument that some decisions cannot be said to be in a special state, called "non-conscious" and that the collective decisions of judges in this special state of "non-consciousness" cannot be said to be "better." You can't disprove it because it is a religious metaphysical argument, not one based on rational discourse.
If someone says "I think cannibalism is rationally moral," if you are smart, you recognize that this isn't a rational argument at all. Obviously, when your cannibalism advocate dresses up their non-rational discourse more formally and with more sophistication, in the way Hayek dresses up his, it can be more difficult for those not paying close attention to recognize the non-rational elements within the argument.
To further consider Hayek, his irrational fear of slippery slopes is like an irrational fear that someone has of heights, even when they are in no danger. It is not through purely rational discourse that one helps quiet an irrational fear of heights.
However, if you are aware of a superior, more persuasive discourse in response to religious methaphysics and emotion, I am extremely interested.
1. In actual practice (either currently or in the past), how can judges decide cases without taking into account whether the rules they embrace are likely to have good or bad effects on society? Or is the difference between Hayek and Posner not whether judges take this into account, but whether errors in judgment as to good or bad effects are corrected by the process of rule-emergence? Or is the difference between Hayek and Posner merely one of emphasis (Posner saying that effects are the primary consideration, Hayek saying that effects are a secondary consideration that arises infrequently)?
2. The historical discussion of the choices open to litigants in 18th-century England seemed to me to be undersupported. It's a surprising depiction of the legal system (surprising to me, anyway) and therefore tough to take without plentiful authority.
3. It wasn't clear how competition among courts in 18th-century England encouraged judges to find law rather than make it. Competition, for example, could have led judges to adopt the rules that the parties believed to be the law, rather than the rules that legal professionals had come to settle upon, based on wider knowledge than that of parties. If so, competition would not necessarily be likely to lead to the "finding" of consistent principles.