Hayek, The Common Law, and Fluid Drive
In the first volume of Law, Legislation and Liberty, Friedrich Hayek distinguishes two types of law: the law that is consciously created through the political process, which he calls the law of legislation, and the unplanned law that evolves out of the settlement of interpersonal disputes, which he calls the law of liberty. In drawing this distinction, Hayek paints a portrait of the law of liberty that is simultaneously brilliant and inspiring, and utterly confused. How can it possibly be both?
The purpose of this essay is to answer this question and to resolve Hayek’s confusion. To do so, I intend to employ an extended analogy between law and automobiles. Accordingly, I would like you to consider the following account of how I gained a modicum of automotive wisdom.
