One of the most significant insights into the history of Anglo-American law offered by F. A. Hayek concerns the superiority of common over statute law in framing a free society.
Hayek's Legal Theory
English common law, like much medieval law, Hayek maintained, reflected the underlying notion that law was not so much created as uncovered and that its principles were identical to the fundamental canons of justice upon which all free societies rest. (1) 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. (2) As Hayek maintains (1973: 83):
Until the discovery of Aristotle's Politics in the thirteenth century and the reception of Justinian's code in the fifteenth ... Western Europe passed through ... [an] epoch of nearly a thousand years when law was ... regarded as something given independently of human will, something to be discovered, not made, and when the conception that law could be deliberately made or altered seemed almost sacrilegious. (3) The reason why England, unlike the continental countries, did not develop a highly centralized absolute monarchy in the 16th and 17th centuries, he argues, was its distinctive system of legal rules and procedures. "What prevented such development," writes Hayek (1973: 84-85), "was the deeply entrenched tradition of a common 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 Coke 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 seventeenth century in opposition to Thomas Hobbes."
Indeed, according to Hayek, all early conceptions of law took this form, that 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. Thus, the great early lawgivers, those semimythic figures of which early civilizations boasted, among them Ur-Nammu, Hammurabi, Solon, Lykurgus, and the authors of the Roman Twelve Tables, did not set down new law but rather codified what the law was and had always been (Hayek 1973: 81). 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 governed social interaction in the community was particularly true of England, where, Hayek contends, the ordinances of the Norman and Angevin 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 preexisting rules and practices that were common to the community.
As cases were brought before the common law courts, judges sought precedents for their decisions in the principles that had been laid down in earlier cases. This doctrine of stare decisis bound judges to apply similar principles in analogous cases. However, this development of the common law, Hayek noted, did not entail that it remained static and unchanging. The law did indeed change, through its application to new circumstances and through variations in interpretation that emerged in specific legal decisions. Common law thus evolved over time as judge-made law, the product of countless judicial decisions each having a specific end in view but the whole body of 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 (Hayek 1973: 81).
The reason why England was the object of such great admiration by Europeans in the 18th century, according to Hayek (1973: 85), 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." While this division of powers was erroneously attributed by Montesquieu to the separation of the executive from the legislature, it would be more correct to claim, Hayek concludes, 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.'"
Hayek's characterization of the common law as an institutional bulwark against the depredations of the Stuart monarchs is not dissimilar to that offered by J. G. A. Pocock in his The Ancient Constitution and the Feudal Law, where he argues that the legal rules under which Englishmen operated had their origins in ancient custom, not statute, and took their form through a process of evolution over many centuries. Pocock (1987: 46) maintains that it is this aspect of English political history that provided the parliamentarians the legal principles with which they armed themselves in their struggles with the Crown:
What occurred was that belief in the antiquity of the common law encouraged belief in the existence of the ancient constitution, reference to which was constantly made, precedents, maxims and principles from which were constantly 'alleged, and which was constantly asserted to be in some way immune from the king's prerogative action; and discussion in these terms formed one of the century's chief modes of political argument. Parliamentary debates and pamphlet controversies involving the law or the constitution were almost invariably carried on either wholly or partially in terms of an appeal to the past made in this way. All the leading 17th-century British lawyers sympathetic to the parliamentary cause embraced the view that the common law stood as the great protector of prescriptive rights and of parliamentary government. As the fundamental law of England whose roots lay in ancient custom and whose social value was attested to by its having survived over time, the common law, it was claimed, constituted a body of rules that took precedence even over the commands of the sovereign. Perhaps the best 17th-century summary of the common law--which comports with the way Hayek was later to interpret it--was put forward in 1612 by Sir John Davies. Davies was then attorney general for Ireland and had introduced British common law to Ireland after the Tudor Conquest. He maintained that
the Common Law of England is nothing else but the Common Custome of the Realm: and a Custome which hath obtained the force of a Law is always said to be jus non scripture; for it cannot be made or created either by Charter, or by Parliament, which are Acts reduced to writing, and are alwaies matter of Record; but being onely matter of fact, and consisting in use and practice, it can be recorded and registered no-where but in the memory of the people. For a Custome taketh beginning and groweth to perfection in this matter: When a reasonable act once done is found to be good and beneficiall to the people, and agreeable to their nature and disposition, then do they use it and practise it again and again, and so by often interation and multiplication of the act it becometh a Custome; and being continued without interruption time out of mind, it obtaineth the force of a Law. And this Customary Law is the most perfect and most excellent, and without comparison the best, to make and preserve a Commonwealth. For the written Laws which are made either by the Edicts of Princes, or by Councils of Estates, are imposed upon the Subject before any Triall or Probation made, whether the same be fit and agreeable to the nature and disposition of the people, or whether they will breed any inconvenience or no. But a Custome doth never become a Law to bind the people, untill it hath been tried and approved time out of mind, during all which time there did thereby arise no inconvenience: for if it had been found inconvenient at any time, it had been used no longer, but had been interrupted, and consequently it had lost the virtue and force of a Law. (4) It is interesting that Davies' account of the development of the common law relies on a species of evolutionary theory close to that later put forward by Edmund Burke and given systematic expression by Hayek. Davies appears to he suggesting that legal rules are of an order of complexity such that only an evolutionary test through trial and error could determine their ultimate social value. "The edicts of princes" and the "councils of estates," when they attempt to contrive fundamental legal rules whose justification is rationally demonstrated, will fail because the process of coordination with existing rules will fail. The strength of the common law, indeed of all law based on precedent, is that its rules are compatible with ancient custom and therefore irreconcilable with a sovereign who seeks to issue arbitrary commands. As Hayek (1973: 94) notes, "The ideal of individual liberty seems to have flourished chiefly among people where, at least for long periods, judge-made law predominated."
What I should like to suggest in this essay is that while this characterization has some merit it fails as an accurate description of the genesis and development of the common law. 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 other systems of substantive and procedural rules, particularly the law of equity, that it was able to survive its early history. At the outset I should make clear that in dealing with the early history of English law we are dealing with a subject of truly immense complexity. The historical description that follows therefore is...