Posted by Todd Zywicki:
Posner, Hayek and the Economic Analysis of Law:
http://volokh.com/archives/archive_2007_01_14-2007_01_20.shtml#1168903460
My new working paper (with Anthony Sanders) on "Posner, Hayek and the
Economic Analysis of Law" has just been posted on SSRN [1]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.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957177
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