Hayek on Common Law Judging
Over on the Right Coast, Mike Rappaport has a nice post on Hayek's description of common law judging. This is from the middle of his post:
. . . [Don] Boudreaux gives the example of a high school cafeteria, where individuals save their seats by putting their books down on a seat before they get in line for food. When they come back to their books, they reasonably expect that their seat will be "saved." If someone had taken their seat, pushing their books aside, it would be the job of the common law judge to enforce their reasonable expectation that seats could be saved.

This is a good example to illustrate Hayek's conception of the common law, and it can be developed further than Boudreaux and Roberts do on the podcast to illustrate some other aspects of Hayek's theory. First, Hayek claims that judges are limited to enforcing rules which can be known in advance, but this might be thought to be in tension with enforcing an unwritten law. This example shows that there need not be a tension. If judges are enforcing existing customs, they can enforce unwritten rules, without "making up" the law. Second, Hayek also says that judges are not making policy. Here, judges are simply enforcing the customs that have developed. Third, even though judge are not making policy, Hayek imagines common law judges as enforcing rules of conduct that should promote desirable outcomes. Because Hayek believes that the customs that emerge tend to be desirable within an order, the enforcement of those customs and expectations will result in desirable rules, even though judges do not directly aim at developing a desirable rule. . . .
Hayek's account from Law, Legislation and Liberty is important to appreciate the difference between common law judging and policy making.
Ron Hardin (mail) (www):
Sociologist Erving Goffman, surely one of the best, worked hard to uncover exactly what the customs are. His talent was in getting it right pretty much most of the time, and it is not easy to do. (As I recall, his example for reserving seats was some personal article like a pen or eyeglasses on the table.)

But the idea of somebody less of a poet than Goffman trying to do it isn't going to work out, even if he's trying to get it right.
3.7.2007 3:32am
logicnazi (mail) (www):
I don't buy that one could be a common law judge in this sense without creating policy. Certainly it will be the usual role of such a judge to reach judgements without policy considerations but that is also true in any reasonable judicial theory. Most cases simply do not raise unaddressed legal issues. The question as to whether a judge should consider policy is only really at issue in cases without an obvious clear cut answer. So what does this conception of a common law judge do when custom provides no clear cut answer?

Consider the lunch room example again. Suppose Johnny has a favorite seat in the lunchroom so he comes in at 9am and leaves some (non-valuable) books at his seat so it will be saved when he comes back at lunch. Should the common law judge enforce his reservation? What about the student who leaves his books at the table for 15 minutes while he goes to the restroom?

What happens when customs conflict? Maybe another custom says that people who are dating get to sit together. If the only way they can sit together is moving someone's books can they do so? If there is a customary table the jocks sit at whenever they come into lunch may they move the books someone has left there? What if the jocks came to lunch at a different time than usual?

The very reason we need judges is to handle these fairly common conflicts between customs. Customary rules are designed for the usual case and when unusual cases come up different rules often demand different results or it isn't clear if rules apply. The question is should judges resolve these disputes using policy analysis.

Also what if some of the understood and accepted customs include customs about how judges behave. For instance most cultures have a custom saying that judges should refuse to enforce customary rules if the result would be abhorrent to justice. Should the judge behave as tradition dictates he behave or should the judge apply the tradition that applies to the actual situation? Since I tend to think that most common law traditions have a cultural expectation/tradition of judges engaging in limited policy analysis it is an important question.
3.7.2007 3:45am
American Psikhushka (mail) (www):
Aah, the old "it isn't on the books, but its an 'unwritten law' because we want to do it".
3.7.2007 7:14am

Aah, the old "it isn't on the books, but its an 'unwritten law' because we want to do it".

Quite a few written laws exist because "we want to do it." Legislatures only formalize the inherent power of 'the People' to establish laws; the legislative product is more neatly packaged but it is neither more nor less authentic than 'unwritten law'.
3.7.2007 7:47am
frankcross (mail):
It's pretty implausible that this isn't policymaking.

It is certainly a policymaking decision to decide when a given "custom" becomes sufficiently customary to merit enforcement

It is also certainly a policymaking decision to decide the precise content of that "custom" once it is sufficiently customary

Not to mention the fact that lots of customs and "unwritten rules" are not enforced by the law (keeping gratuitous promises), and that's a policymaking decision too

We know from centuries of experience that judges will disagree about these decisions. It's not a formula, it's judgment and that's policymaking.
3.7.2007 10:04am
Some customs are kinda repugnant and don't deserve the force of law behind them, and some customs are best enforced through the same mechanisms that created them (habitual practice) rather than by law.
3.7.2007 10:14am
frankcross (mail):
How could I have forgotten the TJ Hooper, Learned Hand's famous common law decision about negligence defenses, where he held that custom was not necessarily a good defense to claims of negligence.
3.7.2007 10:44am
andy (mail) (www):
Would he (or anyone else) argue that federal judges should engage in this type of adjudicating (or policymaking) or whatever you call it?
3.7.2007 12:06pm
Michael Rappaport (mail):
Some of these points, such as those by LogicNazi and Frank Cross, are addressed at least in part in my original post at the Right Coast. For example, I address how Hayek would deal with close cases,disagreements about customs, and the limited extent to which judges might decide based on policy.
3.7.2007 3:19pm
frankcross (mail):
Should have clicked through. I don't really disagree that this is a constrained discretion, but there's plenty of empirical studies of judges to show that the common law is policymaking -- judges are human and will pour their own preferences into their assessment of custom.
3.7.2007 3:44pm
Michael Rappaport (mail):

My understanding of Hayek's theory is that it is primarily normative. That is, judges should behave this way (and they did so to a significant extent during the formative period of the common law period). So the empirical showing that judges today follow their own preferences would not be a problem for him. I would guess that he would claim that today, the common law does not function as well, due to the different role of judges.
3.8.2007 1:46am
markm (mail):
Logicnazi's post is an object lesson in why unwritten law wasn't good enough, but yet judges still have to fiddle with written laws, too. I guess there's a human tendency to challenge the limits. Lawyers are sometimes enablers of that tendency, but they didn't create it.

I think you'll find the same things happening in ancient Athens, which didn't have judges (instead, trials were held in an open forum, with all citizens who showed up to watch voting on the verdict, to the effect that the jury and the legislature were the same body, and probably that the only limitation on passing an ex-post-facto law just to convict one person was the sense of decency of the voters). Lawyers were banned (everyone had to represent himself), but yet the equivalent of law-schools appeared: the Sophists, who collected fees for teaching men how to argue their case in front of this oversized jury/legislature. And "sophistry" was never a compliment.
3.8.2007 12:13pm