Where a real change in the law is required, the new law can properly fulfill the proper function of all law, namely that of guiding expectations, only if it becomes known before it is applied.
The necessity of such radical changes of particular rules may be due to various causes. It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust. But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice. There can be no doubt that in such fields as the law on the relations between master and servant,36 landlord and tenant, creditor and debtor, and in modern times between organized business and its customers, the rules have been shaped largely by the views of one of the parties and their particular interests—especially where, as used to be true in the first two of the instances given, it was one of the groups concerned which almost exclusively supplied the judges. This, as we shall see, does not mean that, as has been asserted, ‘justice is an irrational ideal’ and that ‘from the point of rational cognition there are only interests of human beings and hence conflicts of interests’,37 at least when by interests we do not mean only particular aims but long-term chances which different rules offer to the different members of society. It is even less true that, as would follow from those assertions, a recognized bias of some rule in favour of a particular group can be corrected only by biasing it instead in favour of another. But such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law. This is more than can be accomplished by decisions of particular cases in the light of existing precedents.--Hayek (1973) Law, Legislation and Liberty, 88-89 (emphasis added).
I have a tendency to read Hayek's political theory, especially the parts that treat the rule of law as a spontaneous order, as flirting with a variety of potentially troubling forms of status quo bias. So, it was good to be reminded of the quoted passage above.* Hayek explicitly notes three sources in which an evolved common law can have reached a kind of cul-de-sac such that it requires "radical change" (a term Hayek does not use frequently): (i) an erroneous application of legal principles or a judgment based on errors of fact; (ii) or that some legal principles generate unjust consequences over time; (iii) perversions of judgment -- a failure to be properly impartial -- due to class bias. On the previous page, Hayek also recognizes (iv) that circumstances may change faster than the law does--here he echoes Lippmann's focus on technology generating a spirit of legal adaptation.
And, in fact, (i-ii-iii) are often connected; these can endure a very long time. These facts are clear from Hayek's own footnote 36, where Hayek cites, without qualification, the nineteenth century economist, Jevons (one of the co-inventors of marginalism), as follows,‘The great lesson we learn [from 650 years of legislation of English Parliaments] is that legislation with regard to labour has almost always been class-legislation. It is the effort of some dominant body to keep down a lower class, which had begun to show inconvenient aspirations.’ (from The State in Relation to Labour (London, 1882), p. 33. Not to put too fine point on it, but Hayek explicitly recognizes that in some areas the vaunted rule of law, which has generated reliable expectations, has entrenched class warfare for much of its existence.+
Because of Hayek's focus on possible solutions that won't work, and the intriguing thought that a spontaneous order can require "radical change," it is easy to miss, and so especially worth noting that Hayek also explicitly recognizes that it is difficult for judges to become truly impartial when they are surrounded by like-minded with sympathy for their own. (They become effectively what used to be known as a 'faction.') That is to say, I read Hayek as suggesting that class bias isn't noticed as class bias in homogenous population of judges and legislators. That is to say, Hayek recognizes that, at least momentarily, class diversity may be constitutive, epistemically, for the discovery of more general, and more impartial principles of justice.
My own view (see pp. 202-208) is that Adam Smith was inclined to support one of the measures rejected by Hayek: "a recognized bias of some rule in favour of a particular group can be corrected only by biasing it instead in favour of another." But Hayek prefers that in practice impartiality is aimed at. So, how can this be generated on his account?
It seems to me that when it comes to the selection of judges (and legislators) some kind of carefully announced and cautiously implemented temporary affirmative action or extra effort to recruit for especially salient forms of diversity can be derived from Hayek. Obviously this is not required on Hayek's account if society has other means of discovering 'more general principles of justice' and making this discovery felt on the legislative process and case law decisions.
Undoubtedly there are Hayekian arguments against more general use of affirmative action. But if the class of legislators/judges has the character of a faction, that is, it systematically serves the group interests from which judges are appointed, then this can be a useful remedy that does not seem ruled out by Hayek.
I recognize that the previous paragraphs will be met with disbelief. But notice that Hayek recognizes that the existing rule of law is not sacrosanct and can require quite serious remedy, including the abandonment and overturning of well established common law. That is itself very costly. So, from the perspective of preventing such radical, destabilizing change, preventing a homogeneous judiciary may well be welcome.**
*HT: Scott Scheall (2020) F.A. Hayek and the Epistemology of Politics, 102 note 5, which emphasizes that Hayek recognizes that existing rules of conduct may well require revision. More about this important book some other time.
+This requires us to distinguish between the idea of the common law as a spontaneous order, which provides Hayek with a kind of existence proof, and really existing common law.
**I am unfamiliar with Hayek's views on judicial appointments.
Comments