--- begin forwarded text Date: Thu, 15 Oct 1998 11:43:25 EDT Reply-To: Hayek Related Research <HAYEK-L@MAELSTROM.STJOHNS.EDU> Sender: Hayek Related Research <HAYEK-L@MAELSTROM.STJOHNS.EDU> From: Stephen Carson <SWCarson@AOL.COM> 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 --- end forwarded text ----------------- Robert A. Hettinga <mailto: rah@philodox.com> 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'