Update at the bottom of the post
Here's an interesting quote from Hayek's essay, "The Results of Human Action but not of Human Design," from his book, Studies in Philosophy, Politics and Economics:
"...the
natural law concept against which modern jurisprudence reacted was the
perverted rationalist conception which interpreted the law of nature as
the deductive constructions of 'natural reason' rather than as the
undesigned outcome of a process of growth in which the test of what is
justice was not anybody's arbitrary will but compatibility with a whole
system of inherited but partly inarticulated rules" (101).
This
does seem like a relatively accurate positive assessment of how law has
evolved over time. But it does beg the question, then, of whether or
not a centralized attempt to administer justice, which would rely on
some understanding of what people will accept as just, would be akin to
trying to plan an economy. The idea, in other words, is that if our
recognition of justice relies on a partly inarticulated set of
internalized rules, and those rules change over time and are sometimes
contradictory, then the acceptability of any legal judgment will be in
some some sense bound to the circumstances in which that attribution
was made, and will necessarily
fail to reflect the unanimous will of the people. If that's true, then
it would seem almost impossible to determine what would be the proper
standard of justice within a society at any given time, and so would be
impossible to administer justice "properly" in much the same way as
it's impossible to allocate resources "properly" through a centralized
method of planning.
To make my case, I'll draw on a number of
different quotes which I think paint a better picture of the issue than
I might be able to do myself (especially given the "reason as I go"
approach that generally characterizes these posts). First, from the
beginning of David Schmidtz's book, Elements of Justice:
"I
have become a pluralist, but there are many pluralisms. I focus not on
concentric "spheres" of local, national, and international justice nor
on how different cultures foster different intuitions, but on the
variety of contexts we experience every day, calling in turn for
principles of desert, reciprocity, equality, and need. I try to some
extent to knit these four elements together, showing how they make room
for each other and define each other's limits, but not at the cost of
twisting them to make them appear to fit together better than they
really do. Would a more elegant theory reduce the multiplicity of
elements to one?" (4).
I jump over to the beginning of Rawls' Justice as Fairness: A Restatement:
"...I
believe that a democratic society is not and cannot be a community,
where by a community I mean a body of persons united in affirming the
same comprehensive, or partly comprehensive doctrine. The fact of
reasonable pluralism which characterizes a society with free
institutions makes this impossible. This is the fact of profound and
irreconcilable differences in citizens' reasonable comprehensive
religious and philosophical conceptions of the world, and in their
views of the moral and aesthetic values to be sought in human life" (3).
And with that, I jump back to Schmidtz, a few pages later:
"In
effect, there are two ways to agree: We agree on what is correct, or on
who has jurisdiction - who gets to decide. Freedom of religion took the
latter form; we learned to be liberals in matters of religion, reaching
consensus not on what to believe but on who gets to decide. So too with
freedom of speech. Isn't it odd that our greatest successes in learning
how to live together stem from agreeing on what is correct but from
agreeing to let people decide for themselves?" (6).
And back to Hayek, this time in his essay, "The Use of Knowledge in Society":
"The
peculiar character of the problem of a rational economic order is
determined precisely by the fact that the knowledge of the
circumstances of which we must make use never exists in concentrated or
integrated form, but solely as the dispersed bits of incomplete and
frequently contradictory knowledge which all the separate individuals
possess" (519).
He continues:
"In
ordinary language we describe by the word "planning the complex of
interrelated decisions about the allocation of our available resources.
All economic activity is in this sense planning; and in any society in
which many people collaborate, this planning, whoever does it, will in
some measure have to be based on knowledge which, in the first
instance, is not given to the planner but to somebody else, which
somehow will have to be conveyed to the planner. The various ways in
which the knowledge on which people base their plans is communicated to
them is the crucial problem for any theory explaining the economic
process. And the problem of what is the best way of utilizing knowledge
initially dispersed among all the people is at least one of the main
problems of economic policy--or of designing an efficient economic
system" (520).
And more:
"Today it is
almost heresy to suggest that scientific knowledge is not the sum of
all knowledge. But a little reflection will show that there is beyond
question a body of very important but unorganized knowledge which
cannot possibly be called scientific in the sense of knowledge of
general rules: the knowledge of particular circumstances of time and
place" (521).
Just like how attributions of justice are
contingent on a set of partly inarticulated rules, economic actors make
their decisions according to their personal interpretations of
circumstances, in light of their own value systems. And as they are
inarticulated and often contradictory, they cannot be aggregated to
form a "social" standard. Hayek writes:
"...the sort of
knowledge with which I have been concerned is knowledge of the kind
which by its nature cannot enter into statistics and therefore cannot
be conveyed to any central authority in statistical form" (524).
So
we've sort of gotten to the point I'm trying to make. Basically, if
society's acceptance of certain things as just is, as Hayek says, based
on compatibility with an internalized, partly inarticulated set of
rules, and if these sets of rules are subject to reasonable pluralism
and continuous flux, then it's as impossible to get law perfectly right
through central planning as it is to get an economy perfectly right
through central planning. But then the question becomes, so what? In
looking at the economy, Hayek writes:
"We cannot expect
that this problem will be solved by first communicating all this
knowledge to a central board which, after integrating all knowledge, issues its orders. We must solve it by some form of decentralization" (524).
But is this the right answer for law? That's something I'll have to leave for another day.
Update:
Hahahahahahahaha! So this post was written in a sort of "Ah hah!"
moment while reading Hayek's "The Results of Human Action but not of
Human Design," causing me to jump up from the book and hammer out the
above. Turns out that if I had kept reading, I would have discovered
Hayek making a nearly identical point in the essay itself. So I'd
almost say to forget about this post and go pick up the book.