Lately, I have been listening to Russ Roberts's podcast interviews of a variety of economists. I am quite enjoying them.
In an interesting podcast, Roberts intereviews Don Boudreaux about Hayek’s Law, Legislation and Liberty. The two of them expound on Hayek’s conception of the role of the common law judge. They argue that the judge enforces the reasonable expectations of the parties that exist in their society, even if those expectations are not based on laws that are written down.
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.
The saving seats example can also be used to explicate the role of the judge when deciding close cases. Suppose that someone saves a seat while he goes outside of the school for 30 minutes to buy lunch. Or suppose that he attempts to save seats for his 2 friends who have not arrived yet. In these cases, the judge must decide what may not be an entirely clear result. The judge's first job here is not to figure out what he thinks the rule should be but what people believe the rule to be. What would people say about saving a seat for 30 minutes? If they would regard it as improper, then he should treat it that way as well. If the practice is not clear on this matter – if people who understand the practice disagree in about equal numbers as to the proper answer – then the judge will have decide what is reasonable. In doing so, he may consider what is more desirable, but this analysis of desirability will be limited in the sense that he will consider what is more desirable assuming the existence and desirability of the practice at issue as well as the remainder of the existing law. Thus, if he argued that the practice of saving seats was undesirable generally and therefore should be minimized and not applied to the 30 minute situation, that would be inappropriate. Instead, he would have to accept the value choices of the law – that saving seats makes sense in at least the core circumstances – and then to reason out a desirable solution.