Friedrich Hayek’s Law, Legislation, and Liberty noted a problem in the common law system: Sometimes, following judicial precedent would lead to unforeseen bad outcomes over time. No judge can anticipate all possible implications of a precedent-setting decision, and sometimes later judges, bound by precedent, will be forced despite themselves to elaborate the law in ever more inefficient or unjust ways. Hayek proposed that one role of the legislator was to correct such “dead ends” in the common law. This paper proposes that judges working within the constraints of the common law and given only the tools Hayek himself allowed them are capable of escaping such binds on their own. It uses historical examples from the era of coverture to support this claim. Not only were judges willing to identify exceptions to coverture, these exceptions helped pave the way for coverture’s eventual abolition. This process is examined and found to be otherwise consonant with Hayek’s larger theory of the common law as a rule-finding process.
The Review of Austrian Economics – Springer Journals
Published: Dec 18, 2010
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