Hayek and the Common Law: An Assessment

0:00Thank you very much for your generous comments and I also want to thank Lew Rockwell for having done me the honor. 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. Conference. I'm really quite overwhelmed. This is my first visit to the Mises Institute and I'm quite overwhelmed by the physical layout, by the turnout. I hope that my paper does justice to it. My topic is Hayek and the Common Law. One of the most significant insights into the history of Anglo-American law offered by Hayek concerns the superiority of common law over statute law in framing a free society.

1:01English common law, like much medieval law Hayek maintained, reflects the underlying notion that law was not so much created as uncovered and that its principles were identical was one of the fundamental canons of justice upon which all free societies rest. It was this view of law that predominated in England until the 15th and 16th centuries when for the first time the European nation states sought to use legislation to effect specific policies. The reason why England, unlike the continental countries, did not develop a highly centralized absolute monarchy in the sixteenth and seventeenth centuries, Hayek argues, was its distinctive system of legal rules and procedures.

1:57What prevented such development, says Hayek, was the deeply entrenched tradition of a common 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. Indeed, according to Hayek, all early conceptions of law took this form. Law was unalterably given, and that while legislation might attempt to purify the law of its accumulated corruptions, it could not go beyond this to make completely new law.

2:54Thus, the great early lawgivers, those semi-mythic figures of which early civilization boasted. set down new law, but did not set down new law, but rather codified what the law was and had always been. The law, as originally understood, stood above and separate from the will of the civil magistrate and bound both ruler and ruled. This notion of law as residing in the unwritten rules that govern social interaction in the community was particularly true of England. Where Hayek contends, the ordinances of the Norman and Anglican monarchs played a more muted role in shaping social regulation, and where the law administered by the King's courts had its origins in the judicial articulation of pre-existing rules and practices that were common to the community. As cases were brought before the common law courts, judges sought precedence for their decisions. Thank you. In the principles that had been laid laid down in earlier cases. This doctrine called stare decisis bound judges to apply similar principles in analogous cases.

4:26However, this development of the common law, Hayek noted, did not entail that the law remained static and unchanging. The law did indeed change through its application to new circumstances, through variations in interpretation that emerged in specific legal decisions. Common law thus, over time, developed as judge-made law, the product of countless judicial decisions, each having a specific ended view, but the whole body in which reflected no deliberate intention or plan. Like language, common law formed a spontaneously generated arrangement, the product of human action but not of human design.

5:19Excuse me. That essentially is Hayek's view of what the common law is. It is a natural outgrowth, one of the social institutions and their form through evolution, over time, from countless discrete actions of individuals, none of which aimed at the final arrangement. Hayek goes on, The reason why England was the object of such great admiration by Europeans in the 18th century was because the law administered in its courts was the common law, which existed, he argues, independently of anyone's will and at the same time binding upon and developed by the independent courts, 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.

6:20While this division of powers was erroneously attributed by Montesquieu to the separation of the executive and the legislative, it would be more correct to claim, Hayek concludes, that it was not because the legislature alone made law, but because it did not, because the law was determined by courts, independent of the power which organized and directed government, The power, namely, of what was misleadingly called the Legislature. Now, what I should like to suggest in these comments is that while this characterization of the common law has some merit, that in fact it fails as an accurate description of the genesis and development of law in England, 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.

7:37At the outset, I should make clear that in dealing with the early history of English law, we are dealing with the subject of truly immense complexity, about which I pretend to know expertise. The historical description that follows, therefore, although in the main, I think accurate, is of necessity somewhat oversimplified. German law was the law administered by the royal courts, and as such was enforced throughout the whole of England. But prior to the 14th century, they were by no means the only courts to which an Englishman could have access.

8:23With the exception of cases in which a freehold was an issue, plaintiffs were free to have have their cases heard in a variety of different courts, each enforcing a distinct set of rules. Local county courts, which dated back to the period before the Norman conquest and which administered the customary rules of the region, the borough courts, which administered commercial Law, and the rules that prevailed in towns, and menorial and other seniorial courts which enforced feudal law. In addition, there were ecclesiastical courts which administered canon law, which included jurisdiction over issues of marriage and divorce, wills and testaments, and contracts sealed by a pledge.

9:21Now, even in the face of these choices, however, the king's courts and the common law gained steadily in popularity, especially during the 12th and 13th centuries, when these courts actively expanded their authority. By the mid-13th century, the great English jurist Henry Bracton noted that the king was the proper judge of all temporal causes. This shift away from those courts competing with the courts of common law was due in large measure to the fact that the royal courts offered far more efficient protection than did the other courts. Not only did the king's courts have professional judges a good deal earlier than the local courts, but the method of determining guilt was different.

10:13In the local courts, judgment, amazing as it might seem, preceded proof. A group of freeholders of the region were called to sit as judges. They were called suitors. They sat before the plaintiff and defendant and determined which of the litigants should present proof of their claim. 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.

11:07True. 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, which at about the same time was also extended from private cases to questions of criminal guilt. 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. 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 since it provided a valuable source of revenue through the fines collected and through forfeiture of land.

12:12Indeed, private actions for dispossession was probably one of the most common civil complaints during the period that you were dispossessed of your land, often brought with them a criminal complaint against the defendant against whom judgment was given, who was required not only to pay damages to the plaintiff, but also a fine to the king. As one legal historian has pointed out, the old courts were not deprived of their competence to hear cases. Rather, the alternative of bringing suit in the royal courts, unhampered by the antiquated and sluggish processes 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.

13:09The King's Courts charged for their services by requiring the plaintiff to purchase a writ which would provide him access to the court. 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 by the fact that more and more people, despite the fact that you had to pay, made use of them. The plaintiff's complaint had to fit one of the existing forms of action to bring a case in a royal court. The specific writ was addressed to the sheriff. It was directed to demand of the named defendant that he remedy the wrongful act complained of.

13:56Or should the defendant not remedy this act to appear in a royal court and answer why he had not done so? And one of the answers, of course, could be that he had not committed a wrong. 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. 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.

14:42This court, the Court of King's Bench, originally accompanied a perambulating king as he circuited throughout his kingdom. And in fact, the king himself would occasionally sit on this court, although very rarely. The other supreme courts of common law were the Common Bench or the Court of Common Pleas, 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. The Court of Common Pleas was situated permanently in Westminster by one of the provisions of Magna Carta, because Englishmen who wanted to bring a case against somebody would otherwise have to run down where the king was at that moment in order to get a writ to bring the case.

15:45So they said, all right, we'll leave this court permanently here, and so we'll know where we can go to get a writ. The third of these great courts was the court of Exchequer, whose jurisdiction largely concerned issues having to do with the royal finances. While each of these courts originally tended to specialize in some specific area of law, by the reign of Edward III they all judged cases of common law, and the Court of King's Bench and Common Pleas exercised what amounted to concurrent jurisdiction over civil actions. And all, by virtue of being common law courts, relied on one form of writ or another before a case could be initiated.

16:38In order to have a case in a royal court, you had to buy a writ. Rits were issued through the chancellery and the royal secretariat over whom the Lord Chancellor sat. 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. For example, to secure enforcement of an agreement, the plaintiff would obtain a writ of covenant. To collect a certain sum of money earlier lent to the defendant, the plaintiff would bring an action of debt.

17:29To recover personal property or channels illegally taken, the plaintiff would apply for a writ of repleven, and so on. By the end of Henry II's reign, in 1189, there were approximately 39 writs. And by the end of the reign of Edward II in 1307, there were 470 writs. During the 12th and 13th centuries, the chancery appears to have been prepared to create appropriate writs to address any new instance where they felt any private right had been violated.

18:15However, by the end of the 13th century, and this is the point at which common law really begins to break down, by the end of the 13th century this process slowed considerably, and by the 14th century had stopped altogether. By that time, the writ system in use in the common law courts had hardened to the point where no new forms of writ were devised, because the common law judges opposed the issuance of writ that had no precedent. Therefore, if your complaint against somebody did not fall within the existing categories to which wits could be issued, you could not buy a writ, and you could not take your case to court.

19:08While 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. 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. 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, All of them concerning recovering the possession of land wrongfully held through a flaw in title.

19:56However, there were a large number of possible causes of a flaw in title. The wrongful transfer could be the result of a wrong committed by any one of a number of different officials, and each writ had to address that specific official. While the earlier writs referred in the main to landed property, Personal actions made their appearance toward the end of the 12th century in the form of actions for debt and debtanew. Action for debtanew is the inverse of an action for debt.

20:41An action for debt ordered that a specific sum of money be returned to the plaintiff, while an action for debtanew ordered the defendant to surrender certain chattels or their value. 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. 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. 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, the law's ability to provide remedies for the complaints brought before the common law courts was in fact quite limited.

21:44Despite the proliferation of rifts, there was insufficient expansion of the court's competence to redress injuries, not only because of the actions of the Chancery, but because of strong objections from the common lawyers themselves. The common lawyers were fearful that with the authority to invent new remedies came an authority to create new rights and duties, thus placing too much power in the hands of the chancery. Placing in the hands of the chancery, of course, meant placing in the hands of the monarch, of the sovereign. Indeed, the early common lawyers appeared to have suffered such a strong and Prejudice.