Hayek and Textualism
When Professor Richard Epstein asked me to deliver the Hayek lecture, I knew immediately that I wanted to explore Friedrich August von Hayek’s views on law and judging from the perspective of a textualist. Although Hayek is best remembered as an Austrian economist who exposed the fallacy of central planning, 1 Hayek studied law before he studied economics, and he wrote extensively about law, legislation, and the judicial role during his career. I wanted to review those writings—especially Hayek’s The Constitution of Liberty2 and his three volumes of Law, Legislation and Liberty 3 —and consider whether Hayek would have endorsed textualism as a methodology for a federal judge in the United States.
As an admirer of Hayek’s genius, I approached this occasion as more of an opportunity to honor and learn from him than to critique him. In 2005, Richard Posner critiqued what he called Hayek’s “passive” view of the judicial role in matters of law and economics. 4 Not surprisingly, Judge Posner did not endorse, in his words, “Hayek’s position that the only thing a judge should do is enforce custom without consequences . . . [which] extinguishes any role for economic or other social-scientific analysis in adjudication.” 5 Ironically, the same Judge Posner that same year derided the Supreme Court as “a political court,” 6 endorsed the view that a federal judge should be a “timid politician,”7 and lamented, “Judicial modesty is not the order of the day in the Supreme Court,”8 all of which would suggest that Judge Posner supported a passive judicial role, at least for the Supreme Court, if not for Judge Posner. I also wanted to avoid trying something as ambitious and provocative as Professor Epstein did in his lecture, “Hayekian Socialism,”9 which drew “into public light one strand of Hayek’s thought that [Epstein argued] is inconsistent with his overall orientation.”10 Only Professor Epstein could pull that off. My modest goal was to gain insights and draw lessons from Hayek’s several writings about the common law, judging, legislation, a written constitution, and the separation of powers.
