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Date: Thu, 15 Oct 1998 11:43:25 EDT
Reply-To: Hayek Related Research
Sender: Hayek Related Research
From: Stephen Carson
Subject: Evans on tradition, common law & Hayek
To: HAYEK-L@MAELSTROM.STJOHNS.EDU
M. Stanton Evans has an excellent discussion of tradition & common
law as it relates to liberty & consent in his _The Theme is Freedom:
Religion, Politics, and the American Tradition_, (1994, Regnery).
Chapter 5 of that book, "The Uses of Tradition", is particularly helpful.
From that chapter... [emphases his]
"The reason for this libertarian effect is that the common law created a
tremendous obstacle to the *workings of unchecked power in the state*.
For if the law grew up by way of custom and tradition, over great
intervals of time, then it was not the work of any individual and could
not be changed at anyone's discretion. It was outside the ordinary
workings of the process, pre-existed the powers of the day, and would
survive them. This made it superior to the will of any king, or group of
legislators, and gave it independent status."
-p. 80
"...the common law cannot be made over by the decree of any given
individual, group, or even generation. It consists instead of the
accretion, over time, of ways of thinking and acting that many
generations have accepted. When you think about it - and the common
lawyers did - this is a *species of consent*. It means that people are
*voluntarily choosing to do things in a certain way, without any central
direction or design*. Another common lawyer of the Stuart era, John
Davies, put it as follows:
'The common law of England is nothing else but the common law and
custom of the realm... A custom taketh beginning and groweth to
perfection in this manner; when a reasonable act once done is found to be
good and beneficial to the people, and agreeable to their nature and
disposition, then they do use and practice it again and again, and so by
often iteration and multiplication of the act it becometh a custom...
customary law is the most perfect and most excellent, and without
comparison the best, to make and preserve a commonwealth. For the
written laws that are made by either the edict of princes, or by council
of estates [i.e., Parliament] are imposed on the subject before any trial
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 custom doth never become a law to bind the
people, until it had been tried time out of mind...'"
-p. 88
"This notion of *custom as consent*, in contrast to top-down command, is
among the key ideas of the free society. With the statements of Davies
and Wilson, in fact, we approach the modern exposition of this point by
Hayek, who devotes a series of penetrating essays to the subject. The
distinctive features of a libertarian regime, Hayek argues, is that it
permits the organization of society by free decision, and that this
results in an ordered system that no single person or even group of
people has designed, and that could not have been created by top-down
methods. An obvious example is the development of language - a structure
that has grown up over a considerable course of time, invented by nobody
in particular, but used conveniently by many."
-p. 89-90
I had never quite connected this aspect of consent in with the
common law. This makes the connection between spontaneous order, custom,
time & consent much clearer to me.
Stephen W. Carson mailto:SWCarson@aol.com
"Premature optimization is the root of all evil" -Donald Knuth
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-----------------
Robert A. Hettinga
Philodox Financial Technology Evangelism http://www.philodox.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
