WEBVTT NOTE Hayek and the Common Law: An Assessment 1 00:00:00.000 --> 00:00:10.000 Thank you very much for your generous comments and I also want to thank Lew Rockwell for having done me the honor. 2 00:00:10.000 --> 00:00:21.000 Can you hear me by the way? For having done me the honor of inviting me to present the Hayek lecture at this Austrian Scholars Conference. 3 00:00:21.000 --> 00:00:28.080 Conference. I'm really quite overwhelmed. This is my first visit to the Mises Institute 4 00:00:28.080 --> 00:00:35.440 and I'm quite overwhelmed by the physical layout, by the turnout. I hope that my paper 5 00:00:35.440 --> 00:00:47.200 does justice to it. My topic is Hayek and the Common Law. One of the most significant 6 00:00:47.200 --> 00:00:54.840 insights into the history of Anglo-American law offered by Hayek concerns the superiority 7 00:00:54.840 --> 00:01:01.080 of common law over statute law in framing a free society. 8 00:01:01.080 --> 00:01:07.920 English common law, like much medieval law Hayek maintained, reflects the underlying 9 00:01:07.920 --> 00:01:16.300 notion that law was not so much created as uncovered and that its principles were identical 10 00:01:16.300 --> 00:01:23.500 was one of the fundamental canons of justice upon which all free societies rest. 11 00:01:23.500 --> 00:01:31.780 It was this view of law that predominated in England until the 15th and 16th centuries 12 00:01:31.780 --> 00:01:37.140 when for the first time the European nation states sought to use legislation to effect 13 00:01:37.140 --> 00:01:40.220 specific policies. 14 00:01:40.220 --> 00:01:46.620 The reason why England, unlike the continental countries, did not develop a highly centralized 15 00:01:46.620 --> 00:01:53.620 absolute monarchy in the sixteenth and seventeenth centuries, Hayek argues, was its distinctive 16 00:01:53.620 --> 00:01:57.900 system of legal rules and procedures. 17 00:01:57.900 --> 00:02:04.340 What prevented such development, says Hayek, was the deeply entrenched tradition of a common 18 00:02:04.340 --> 00:02:31.340 is one law that was not conceived as the product of anyone's will, but rather as a barrier to all power, including that of the king, a tradition which Sir Edward Cook was to defend against King James I and his chancellor, Sir Francis Bacon, and which Sir Matthew Hale brilliantly restated at the end of the 17th century in opposition to Thomas Hobbes. 19 00:02:34.340 --> 00:02:40.340 Indeed, according to Hayek, all early conceptions of law took this form. 20 00:02:40.340 --> 00:02:50.340 Law was unalterably given, and that while legislation might attempt to purify the law of its accumulated corruptions, 21 00:02:50.340 --> 00:02:54.340 it could not go beyond this to make completely new law. 22 00:02:54.340 --> 00:03:02.340 Thus, the great early lawgivers, those semi-mythic figures of which early civilization boasted. 23 00:03:02.340 --> 00:03:14.340 set down new law, but did not set down new law, but rather codified what the law was and had always been. 24 00:03:14.340 --> 00:03:23.340 The law, as originally understood, stood above and separate from the will of the civil magistrate and bound both ruler and ruled. 25 00:03:23.340 --> 00:03:33.340 This notion of law as residing in the unwritten rules that govern social interaction in the community was particularly true of England. 26 00:03:33.340 --> 00:03:43.340 Where Hayek contends, the ordinances of the Norman and Anglican monarchs played a more muted role in shaping social regulation, 27 00:03:43.340 --> 00:03:49.380 and where the law administered by the King's courts had its origins in the 28 00:03:49.380 --> 00:03:56.380 judicial articulation of pre-existing rules and practices that were common to 29 00:03:56.380 --> 00:04:06.300 the community. As cases were brought before the common law courts, judges sought 30 00:04:06.300 --> 00:04:13.180 precedence for their decisions. Thank you. In the principles that had been laid 31 00:04:13.180 --> 00:04:26.180 laid down in earlier cases. This doctrine called stare decisis bound judges to apply similar principles in analogous cases. 32 00:04:26.180 --> 00:04:35.180 However, this development of the common law, Hayek noted, did not entail that the law remained static and unchanging. 33 00:04:35.180 --> 00:04:41.580 The law did indeed change through its application to new circumstances, 34 00:04:41.580 --> 00:04:49.580 through variations in interpretation that emerged in specific legal decisions. 35 00:04:49.580 --> 00:04:55.480 Common law thus, over time, developed as judge-made law, 36 00:04:55.480 --> 00:05:01.880 the product of countless judicial decisions, each having a specific ended view, 37 00:05:01.880 --> 00:05:06.880 but the whole body in which reflected no deliberate intention or plan. 38 00:05:08.880 --> 00:05:13.880 Like language, common law formed a spontaneously generated arrangement, 39 00:05:14.880 --> 00:05:17.880 the product of human action but not of human design. 40 00:05:19.880 --> 00:05:20.880 Excuse me. 41 00:05:21.880 --> 00:05:24.880 That essentially is Hayek's view of what the common law is. 42 00:05:25.880 --> 00:05:30.880 It is a natural outgrowth, one of the social institutions 43 00:05:31.880 --> 00:05:39.880 and their form through evolution, over time, from countless discrete actions of individuals, 44 00:05:39.880 --> 00:05:44.880 none of which aimed at the final arrangement. 45 00:05:44.880 --> 00:05:46.880 Hayek goes on, 46 00:05:46.880 --> 00:05:53.880 The reason why England was the object of such great admiration by Europeans in the 18th century 47 00:05:53.880 --> 00:05:58.880 was because the law administered in its courts was the common law, 48 00:05:58.880 --> 00:06:09.880 which existed, he argues, independently of anyone's will and at the same time binding upon and developed by the independent courts, 49 00:06:09.880 --> 00:06:20.880 a law with which parliament only rarely interfered and when it did, mainly only to clear up doubtful points within a given body of law. 50 00:06:20.880 --> 00:06:30.880 While this division of powers was erroneously attributed by Montesquieu to the separation of the executive and the legislative, 51 00:06:30.880 --> 00:06:38.880 it would be more correct to claim, Hayek concludes, that it was not because the legislature alone made law, 52 00:06:38.880 --> 00:06:48.880 but because it did not, because the law was determined by courts, independent of the power which organized and directed government, 53 00:06:48.880 --> 00:06:54.880 The power, namely, of what was misleadingly called the Legislature. 54 00:06:54.880 --> 00:07:08.880 Now, what I should like to suggest in these comments is that while this characterization of the common law has some merit, 55 00:07:08.880 --> 00:07:16.880 that in fact it fails as an accurate description of the genesis and development of law in England, 56 00:07:16.880 --> 00:07:37.880 More important, it does not address the common law's weaknesses and inadequacies, which were so extensive that it was only by supplementing it with a second system of substantive and procedural rules, known as equity, that it was able to survive its early history. 57 00:07:37.880 --> 00:07:43.400 At the outset, I should make clear that in dealing with the early history of English 58 00:07:43.400 --> 00:07:50.400 law, we are dealing with the subject of truly immense complexity, about which I pretend 59 00:07:50.400 --> 00:07:52.800 to know expertise. 60 00:07:52.800 --> 00:07:59.440 The historical description that follows, therefore, although in the main, I think accurate, is 61 00:07:59.440 --> 00:08:04.440 of necessity somewhat oversimplified. 62 00:08:04.440 --> 00:08:10.840 German law was the law administered by the royal courts, and as such was enforced throughout 63 00:08:10.840 --> 00:08:13.760 the whole of England. 64 00:08:13.760 --> 00:08:19.160 But prior to the 14th century, they were by no means the only courts to which an Englishman 65 00:08:19.160 --> 00:08:23.360 could have access. 66 00:08:23.360 --> 00:08:29.680 With the exception of cases in which a freehold was an issue, plaintiffs were free to have 67 00:08:29.680 --> 00:08:38.000 have their cases heard in a variety of different courts, each enforcing a distinct set of rules. 68 00:08:38.000 --> 00:08:45.000 Local county courts, which dated back to the period before the Norman conquest and which 69 00:08:45.000 --> 00:08:51.880 administered the customary rules of the region, the borough courts, which administered commercial 70 00:08:51.880 --> 00:09:00.040 Law, and the rules that prevailed in towns, and menorial and other seniorial courts which 71 00:09:00.040 --> 00:09:02.920 enforced feudal law. 72 00:09:02.920 --> 00:09:10.200 In addition, there were ecclesiastical courts which administered canon law, which included 73 00:09:10.200 --> 00:09:19.120 jurisdiction over issues of marriage and divorce, wills and testaments, and contracts sealed 74 00:09:19.120 --> 00:09:21.560 by a pledge. 75 00:09:21.560 --> 00:09:26.560 Now, even in the face of these choices, however, the king's courts and the common law gained 76 00:09:26.560 --> 00:09:32.800 steadily in popularity, especially during the 12th and 13th centuries, when these courts 77 00:09:32.800 --> 00:09:36.560 actively expanded their authority. 78 00:09:36.560 --> 00:09:43.200 By the mid-13th century, the great English jurist Henry Bracton noted that the king was 79 00:09:43.200 --> 00:09:48.160 the proper judge of all temporal causes. 80 00:09:48.160 --> 00:09:53.520 This shift away from those courts competing with the courts of common law was due in large 81 00:09:53.520 --> 00:09:59.480 measure to the fact that the royal courts offered far more efficient protection than 82 00:09:59.480 --> 00:10:03.080 did the other courts. 83 00:10:03.080 --> 00:10:08.800 Not only did the king's courts have professional judges a good deal earlier than the local 84 00:10:08.800 --> 00:10:13.980 courts, but the method of determining guilt was different. 85 00:10:13.980 --> 00:10:21.820 In the local courts, judgment, amazing as it might seem, preceded proof. 86 00:10:21.820 --> 00:10:27.220 A group of freeholders of the region were called to sit as judges. 87 00:10:27.220 --> 00:10:29.740 They were called suitors. 88 00:10:29.740 --> 00:10:35.500 They sat before the plaintiff and defendant and determined which of the litigants should 89 00:10:35.500 --> 00:10:38.380 present proof of their claim. 90 00:10:38.380 --> 00:11:07.380 And proof was not what we now understand as proof, but rather an appeal to the supernatural through ordeal or battle, or what was called wager of law, that is, swearing to the truth of one's claim and rounding up a sufficient number of what were called oath helpers, who would testify that one's claim was true. 91 00:11:07.380 --> 00:11:23.380 True. While ordeal, battle, and wager of law were all at one time used in the royal courts, by 1215 they were replaced by trial by jury, 92 00:11:23.380 --> 00:11:33.380 which at about the same time was also extended from private cases to questions of criminal guilt. 93 00:11:33.380 --> 00:11:50.380 Indeed, plaintiffs were compelled to take their cases to the king's courts in order to avoid trial by battle or wager of law inasmuch as only the king could grant the privilege of a jury trial. 94 00:11:50.380 --> 00:12:02.380 Finally, the increased activity of the royal courts was greatly accelerated by the virtue of the fact that the king claimed a virtual monopoly over criminal justice 95 00:12:02.380 --> 00:12:11.380 since it provided a valuable source of revenue through the fines collected and through forfeiture of land. 96 00:12:12.380 --> 00:12:20.380 Indeed, private actions for dispossession was probably one of the most common civil complaints during the period 97 00:12:20.380 --> 00:12:27.380 that you were dispossessed of your land, often brought with them a criminal complaint against the defendant 98 00:12:27.380 --> 00:12:36.380 against whom judgment was given, who was required not only to pay damages to the plaintiff, but also a fine to the king. 99 00:12:36.380 --> 00:12:44.380 As one legal historian has pointed out, the old courts were not deprived of their competence to hear cases. 100 00:12:44.380 --> 00:12:52.380 Rather, the alternative of bringing suit in the royal courts, unhampered by the antiquated and sluggish processes 101 00:12:52.380 --> 00:13:09.380 There can be little doubt that the King's courts indeed reflected the genuine preferences of litigants, since unlike the older courts, the King's courts charged for their services by requiring the plaintiff to purchase a writ, which would provide him access to the court. 102 00:13:09.380 --> 00:13:19.380 The King's Courts charged for their services by requiring the plaintiff to purchase a writ which would provide him access to the court. 103 00:13:19.380 --> 00:13:26.380 And since you had to pay to get to the King's Court, it clearly was indicative of the fact that it gained in popularity 104 00:13:26.380 --> 00:13:32.380 by the fact that more and more people, despite the fact that you had to pay, made use of them. 105 00:13:32.380 --> 00:13:44.380 The plaintiff's complaint had to fit one of the existing forms of action to bring a case in a royal court. 106 00:13:44.380 --> 00:13:48.380 The specific writ was addressed to the sheriff. 107 00:13:48.380 --> 00:13:56.380 It was directed to demand of the named defendant that he remedy the wrongful act complained of. 108 00:13:56.380 --> 00:14:04.380 Or should the defendant not remedy this act to appear in a royal court and answer why he had not done so? 109 00:14:04.380 --> 00:14:09.380 And one of the answers, of course, could be that he had not committed a wrong. 110 00:14:09.380 --> 00:14:21.380 By the end of the 13th century, three great royal courts had emerged, all functioning in much the same way and all administering the same rules. 111 00:14:21.380 --> 00:14:42.380 They were the Court of King's Bench, whose authority originated in the royal right to preserve the peace, and which as a result had unlimited criminal jurisdiction, that is authority to try all cases involving appeals of felony and breaches of the peace. 112 00:14:42.380 --> 00:14:53.380 This court, the Court of King's Bench, originally accompanied a perambulating king as he circuited throughout his kingdom. 113 00:14:53.380 --> 00:15:00.380 And in fact, the king himself would occasionally sit on this court, although very rarely. 114 00:15:00.380 --> 00:15:08.380 The other supreme courts of common law were the Common Bench or the Court of Common Pleas, 115 00:15:08.380 --> 00:15:21.380 The Court of Common Pleas, which sat as a permanent court in Westminster and which had exclusive jurisdiction over suits in which the king had no interest, that is non-criminal suits. 116 00:15:21.380 --> 00:15:31.380 The Court of Common Pleas was situated permanently in Westminster by one of the provisions of Magna Carta, 117 00:15:31.380 --> 00:15:37.380 because Englishmen who wanted to bring a case against somebody 118 00:15:37.380 --> 00:15:42.380 would otherwise have to run down where the king was at that moment 119 00:15:42.380 --> 00:15:45.380 in order to get a writ to bring the case. 120 00:15:45.380 --> 00:15:49.380 So they said, all right, we'll leave this court permanently here, 121 00:15:49.380 --> 00:15:53.380 and so we'll know where we can go to get a writ. 122 00:15:53.380 --> 00:15:59.380 The third of these great courts was the court of Exchequer, 123 00:15:59.380 --> 00:16:05.380 whose jurisdiction largely concerned issues having to do with the royal finances. 124 00:16:05.380 --> 00:16:13.380 While each of these courts originally tended to specialize in some specific area of law, 125 00:16:13.380 --> 00:16:18.380 by the reign of Edward III they all judged cases of common law, 126 00:16:18.380 --> 00:16:27.380 and the Court of King's Bench and Common Pleas exercised what amounted to concurrent jurisdiction over civil actions. 127 00:16:27.380 --> 00:16:38.380 And all, by virtue of being common law courts, relied on one form of writ or another before a case could be initiated. 128 00:16:38.380 --> 00:16:44.380 In order to have a case in a royal court, you had to buy a writ. 129 00:16:44.380 --> 00:16:54.380 Rits were issued through the chancellery and the royal secretariat over whom the Lord Chancellor sat. 130 00:16:54.380 --> 00:17:11.380 As the disputes before the King's courts raised new and recurring issues, the Chancery would frame new forms of writ, ordering the sheriffs to call juries to deal with specific complaints. 131 00:17:11.380 --> 00:17:20.380 For example, to secure enforcement of an agreement, the plaintiff would obtain a writ of covenant. 132 00:17:20.380 --> 00:17:26.160 To collect a certain sum of money earlier lent to the defendant, the plaintiff would 133 00:17:26.160 --> 00:17:29.460 bring an action of debt. 134 00:17:29.460 --> 00:17:36.940 To recover personal property or channels illegally taken, the plaintiff would apply for a writ 135 00:17:36.940 --> 00:17:40.240 of repleven, and so on. 136 00:17:40.240 --> 00:17:48.640 By the end of Henry II's reign, in 1189, there were approximately 39 writs. 137 00:17:48.640 --> 00:17:59.760 And by the end of the reign of Edward II in 1307, there were 470 writs. 138 00:17:59.760 --> 00:18:07.240 During the 12th and 13th centuries, the chancery appears to have been prepared to create appropriate 139 00:18:07.240 --> 00:18:15.840 writs to address any new instance where they felt any private right had been violated. 140 00:18:15.840 --> 00:18:22.960 However, by the end of the 13th century, and this is the point at which common law really 141 00:18:22.960 --> 00:18:31.000 begins to break down, by the end of the 13th century this process slowed considerably, 142 00:18:31.000 --> 00:18:34.880 and by the 14th century had stopped altogether. 143 00:18:34.880 --> 00:18:41.640 By that time, the writ system in use in the common law courts had hardened to the point 144 00:18:41.640 --> 00:18:49.960 where no new forms of writ were devised, because the common law judges opposed the issuance 145 00:18:49.960 --> 00:18:53.360 of writ that had no precedent. 146 00:18:53.360 --> 00:19:00.920 Therefore, if your complaint against somebody did not fall within the existing categories 147 00:19:00.920 --> 00:19:08.920 to which wits could be issued, you could not buy a writ, and you could not take your case to court. 148 00:19:08.920 --> 00:19:20.420 While some 470 wits might suggest that the common law was able to address an almost unlimited spectrum of private wrongs, this was not in fact the case. 149 00:19:20.420 --> 00:19:35.420 Many of the original writs fell into groups or families with similar formulas, grounded on a single principle, which varied only slightly from writ to writ. 150 00:19:35.420 --> 00:19:44.420 The writ of entry, which was invented during the reign of Richard I, there were a number of writs of entry, different writs of entry, 151 00:19:44.420 --> 00:19:56.160 All of them concerning recovering the possession of land wrongfully held through a flaw in title. 152 00:19:56.160 --> 00:20:02.820 However, there were a large number of possible causes of a flaw in title. 153 00:20:02.820 --> 00:20:15.820 The wrongful transfer could be the result of a wrong committed by any one of a number of different officials, 154 00:20:15.820 --> 00:20:20.820 and each writ had to address that specific official. 155 00:20:23.820 --> 00:20:28.820 While the earlier writs referred in the main to landed property, 156 00:20:28.820 --> 00:20:37.820 Personal actions made their appearance toward the end of the 12th century in the form of actions for debt and debtanew. 157 00:20:37.820 --> 00:20:41.820 Action for debtanew is the inverse of an action for debt. 158 00:20:41.820 --> 00:20:48.820 An action for debt ordered that a specific sum of money be returned to the plaintiff, 159 00:20:48.820 --> 00:20:56.820 while an action for debtanew ordered the defendant to surrender certain chattels or their value. 160 00:20:56.820 --> 00:21:09.820 If I buy a loaf of bread from you and don't pay you, you may bring an action for debt from me, I may bring an action for debt new to you. 161 00:21:09.820 --> 00:21:22.820 Thus, should one of the parties in the transaction refuse to fulfill his obligation, the seller could sue for debt, or the briar could bring an action for debt new. 162 00:21:22.820 --> 00:21:35.820 Despite the fact that the common law had by the end of the 13th century extended its reach to address what appears to have been a large number of offenses, 163 00:21:35.820 --> 00:21:44.820 the law's ability to provide remedies for the complaints brought before the common law courts was in fact quite limited. 164 00:21:44.820 --> 00:21:53.220 Despite the proliferation of rifts, there was insufficient expansion of the court's 165 00:21:53.220 --> 00:21:59.300 competence to redress injuries, not only because of the actions of the Chancery, but because 166 00:21:59.300 --> 00:22:05.420 of strong objections from the common lawyers themselves. 167 00:22:05.420 --> 00:22:11.300 The common lawyers were fearful that with the authority to invent new remedies came an authority 168 00:22:11.300 --> 00:22:19.220 to create new rights and duties, thus placing too much power in the hands of the chancery. 169 00:22:19.220 --> 00:22:22.900 Placing in the hands of the chancery, of course, meant placing in the hands of the monarch, 170 00:22:22.900 --> 00:22:28.580 of the sovereign. Indeed, the early common lawyers appeared to have suffered such a strong 171 00:22:28.580 --> 00:22:28.980 and Prejudice.