Custom, Reason, and the Common Law: A Reply to Hasnas
The first and chief design of every system of government is to maintain justice; to prevent the members of society from encroaching on one another’s property, or seizing what is not their own. The design here is to give each one the secure and peaceable possession of his own property.
–Adam Smith
Introduction In a recent article in this journal, John Hasnas takes Friedrich Hayek to task for allegedly failing to appreciate the basic distinction between the common law enforcement of local customary practices, of which Hasnas approves, and interstitial judicial law-making grounded in the interpretation of precedent and normative considerations of public policy, to which he objects as being akin to legislation. Professor Hasnas accuses Hayek not only of confusing customary and judge-made law, but also of compounding the error by anachronistically projecting the modern conception of judge-made law on to the older common law, the substance of which, he claims, consisted exclusively of the enforcement of organic social customs. In particular, Hasnas makes the striking assertion that, prior to the advent of the nineteenth century, the substantive content of the British common law was not judge-made at all, but instead reflected nothing other than “the community’s sense of fairness as expressed by the jury” and could thus be “accurately described as case-generated customary law.”
