David B. Shemano <[email protected]> wrote: > Hayek was big defender of the common law, meaning judge made law decided on a > case by basis, building on prior cases through precedent, developing over > generations, as opposed to code law (e.g., the Napoleonic Code), meaning the > legislative branch creating statutory law intended to address in absract all > circumstances. Hayek would argue that the common law is preferable, because > law is created in a dispersed manner from below (i.e., law is created based > upon specific circumstance at almost an invididualized level with ability to > evolve over time), as opposed in a centralized manner from above (i.e., law > is created based upon abstraction and then with little ability to evolve > because of codification). So Hayek would say the common law is an example of > spontaneous order because there is no centrailized authority directing it > (spontaneous), but it is quite efficient (orderly).<
Does that mean that Hayek would throw away the US constitution, since it is a centralized system of law imposed on the country from above by a small minority of society (i.e., rich property-owning white men who had chosen the winning side of the war with Britain)? In any event, the actual source of the details of the law (centralized vs. decentralized) is not relevant to the issue of spontaneous order. Whether a law is written into a Code book or is based on precedent, it has to be enforced. Unless the law is totally consistent with the individual incentives prevailing in the actually-existing society, this involves coercion -- and thus cannot be "spontaneous." In a capitalist society, the dominant motivation is greed, so that state coercion is required to keep people from taking each others' property by force, fraud, etc. (Of course, in practice, those with the most property often _get away with_ taking others' property because of their economic and political power. But that's a different issue.) -- Jim Devine / "Segui il tuo corso, e lascia dir le genti." (Go your own way and let people talk.) -- Karl, paraphrasing Dante. _______________________________________________ pen-l mailing list [email protected] https://lists.csuchico.edu/mailman/listinfo/pen-l
