Rejoinder to Hasnas
In this brief rejoinder, there is relatively little to say further about Hayek, since Professor Hasnas and I largely agree, I think, on the issue in dispute. In his response, Hasnas reiterates his position that “Hayek’s purpose in Volume I of Law, Legislation and Liberty is to offer the law produced by evolutionary forces as an alternative to legislation.” If this is indeed the last word, then Hayek’s reliance on the conscious law-making activities common law judges is arguably misplaced, as Hasnas contends, since “there is no reason to believe that [judge-made] law is morally superior to legislation,” given that “it simply imposes the normative preferences” of judges rather than legislators on the members of the public.
In my reply, I did not deny that there is some textual support for this reading of Hayek’s jurisprudence. Nevertheless, Hasnas’ professed concern about the imposition of values is quite beside the point, since the validation of rights claims, in litigation or otherwise, invariably involves the imposition of a normative standard of some sort. This is no less true of the enforcement of persons’ expectations arising from customary social and economic practices, which, as I pointed out, may embody deeply illiberal values. Suppose, for example, that the settled custom in a particular community relegates women to a subordinate legal status. A dispute then arises over the validity of a contract entered into by a woman without her husband’s permission, as required by the community’s entrenched social norms. Though he presumably would resist the conclusion, Hasnas seems to imply that, on Hayekian grounds, the promotion of liberty would require the parties’ rights to be determined by a jury, in the absence of any substantive guidance from a court or the legislature, according to its view of the parties’ “custom-derived expectations.” Under these circumstances, the prospects for a liberal outcome would not be promising, to say the least.
