HAYEK S JURISPRUDENCE: AND RATNAPALA S HAYEK

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1 311 HAYEK S JURISPRUDENCE: AND RATNAPALA S HAYEK TODD J. ZYWICKI * Professor Suri Ratnapala s prodigious, insightful, and influential scholarly output spans a range of topics in constitutional law, jurisprudence, and political theory. Such is the nature of his wide-ranging mind that as the variety of papers collected here demonstrates one could choose any topic that has met Suri s mind without implying any slight to the importance of the others. Such is the spirit in which I examine a topic in which Suri has not written extensively in terms of numbers of articles, but for which his insights are keen and penetrating the jurisprudence of F.A. Hayek. Professor Ratnapala has written two major articles on Hayek s jurisprudence: a book chapter entitled The Jurisprudence of Friedrich A. Hayek in The Multi-Layered Hayek 1 and a fascinating article, The Trident Case and the Evolutionary Theory of F.A. Hayek. 2 In addition, of course, Ratnapala has written extensively both directly and indirectly on the ideas of the Scottish Enlightenment and related topics. This essay, however, specifically addresses Ratnapala s two articles that directly address Hayek s jurisprudence. In these two articles, Ratnapala provides one of the best introductions and overviews of Hayek s legal thought that I have read. In particular, Ratnapala addresses the two key elements of Hayek s legal thought that have tended toward obscurity: first, Hayek s unique jurisprudential orientation (at least in the modern era) and second, a perceived lack of concreteness in Hayek s thought that makes it difficult to see how his ideas are reflected in particular cases, at least for those with only a passing familiarity with Hayek s view of law. As Ratnapala notes, unlike more narrowly-focused jurisprudential thinkers such as Ronald Dworkin or positivists of various stripes (such as Bentham or Hart), Hayek s theory of law cannot be separated from his larger worldview, including most importantly, Hayek s epistemology, economics, and even psychology, cognition, and theory of mind. As Ratnapala notes, Hayek s jurisprudence has been largely ignored by legal thinkers, especially his later and more-developed views as reflected in their most mature form in Law, Legislation, and Liberty. To the extent that jurisprudence scholars have taken note of Hayek, they have largely addressed themselves to his analysis of the rule of law, as formulated in The Road to Serfdom and The Constitution of Liberty although even then, in addressing Hayek s views on the rule of law those thinkers (most notably Joseph Raz) have failed to grasp the full complexity of Hayek s argument and instead have narrowed and distorted Hayek s arguments to try to fit them within preexisting jurisprudential thought. 3 As Ratnapala notes, however, Hayek s fully developed jurisprudential thought is found in Law, Legislation, and Liberty (hereinafter LLL), and most notably, in the first volume of that work, entitled Rules and Order. 4 In particular, LLL marks a dramatic * George Mason University Foundation Professor of Law, George Mason University School of Law and Senior Scholar, Mercatus Center. Suri Ratnapala, The Jurisprudence of Friedrich A. Hayek in Oliver Hartwich (ed), The Multi-Layered Hayek (CIS, 2010) Suri Ratnapala, The Trident Case and the Evolutionary Theory of F.A. Hayek (1993) 13(2) Oxford Journal of Legal Studies See Todd J. Zywicki, The Rule of Law, Freedom, and Prosperity (2003) 10 Supreme Court Economic Review Friedrich A. Hayek, Law, Legislation, and Liberty: Rules and Order, Volume 1 (University of Chicago Press, 1973). I have argued that Hayek s argument as developed in Law, Legislation, and Liberty can be seen as the working out of unresolved tensions implicit in his

2 312 University of Queensland Law Journal 2014 departure from Hayek s earlier writings on law and the rule of law, which had focused on the German Rechsstaat version of law, by organizing the legal and political order of a free society around the classical English common law, not just institutionally but also as an embodiment of the legal philosophy essential to a free constitutional order. 5 As Ratnapala suggests, and with which I agree, Hayek s view of law as it emerges in LLL is a natural extension of his views on epistemology, economics, and the nature of spontaneous orders, and reflects Hayek s most profound contribution to jurisprudence. I RATNAPALA ON HAYEK As noted, Ratnapala has two key articles on Hayek s jurisprudence, which overlap in substance but make distinct contributions. The first I will discuss is actually more recent (published in 2010), The Jurisprudence of Friedrich A. Hayek, which focuses on the larger ideas of Hayek s jurisprudence. The second I will discuss, The Trident Case and the Evolutionary Theory of F.A. Hayek, was published in 1993, but is notable for its effort to apply Hayek s insights as a positive theory to explain the outcome and actual process of judicial reasoning in a particular common law case. A The Jurisprudence of Friedrich A. Hayek Ratnapala notes at the outset of The Jurisprudence of Friedrich A. Hayek that Hayek s jurisprudence is inseparable from his political economy and they combine to form his overall social theory. 6 More pointedly, Ratnapala notes, [Hayek s views on law and justice arise from the same epistemology that informs his economic theory, namely, critical rationalism that recognises the irremediable limitations of human knowledge. According to this view, the rule of law is not simply a moral claim but a necessity for coping with the human condition in a world that is in permanent disequilibrium. 7 And, in particular, there is a deep relationship between Hayek s theory of evolutionary epistemology and the evolutionary logic of the English common law, which Hayek views as the model of law most conducive to human flourishing. Understanding Hayek s jurisprudence requires understanding the particular jurisprudential tradition in which Hayek situated himself, the historical school of jurisprudence. Indeed, one contributing factor to the neglect of Hayek s jurisprudential thought as developed in LLL is Hayek s affiliation on this point with the historical school of jurisprudence, a school that emerged in the 19 th Century as most notably reflected in the works of Karl von Savigny and Sir Henry Sumner Maine and that flourished into the mid-twentieth century through the work of thinkers such as Carlton Kemp Allen 8 and James Coolidge Carter, 9 but faced a rapid decline in the post-war earlier ideas about the rule of law. See Todd J. Zywicki, Reconciling Group Selection and Methodological Individualism (2004) 7 Advances in Austrian Economics and Todd J. Zywicki and Anthony B. Sanders, Posner, Hayek and the Economic Analysis of Law (2008) 93 Iowa Law Review This marked shift in Hayek s thought appears to be attributable to his encounter with the work of the great Italian classical liberal lawyer Bruno Leoni, and especially Leoni s Freedom and the Law, which Hayek encountered just as he was completing The Constitution of Liberty. See Todd J. Zywicki, Bruno Leoni s Legacy and Continuing Relevance (2015) Journal of Private Enterprise (forthcoming). Ratnapala, above n 1, 45. Ibid, see also Zywicki and Sanders, above n 4, Carleton Kemp Allen, Law in the Making (Clarendon Press, 2 nd ed, 1930) 143. James Coolidge Carter, Law: Its Origin, Growth, and Function (G. P. Putnam's Sons, 1907).

3 Vol 33(2) Hayek s Jurisprudence: And Ratnapala s Hayek 313 era. 10 Understanding Hayek therefore requires understanding the ideas of the historical school of jurisprudence and how they differ from the dominant modern schools of jurisprudential thought. Legal philosophy today is dominated by two schools of thought: legal positivism and natural law thinking. 11 Despite the appeal of natural law theory, Ratnapala notes that it has limited practical value in the daily lives of people as [i]t does not help us identify the law we must observe. 12 Natural law theory also is unhelpful to the scientific understanding of the way laws emerge and change over time. 13 Moreover, Ratnapala argues that natural law theory can create uncertainty about the content of law and the direction of legal change during a period of rapid social and economic change, such as England in the eighteenth century. Legal positivism is the other dominant modern school of legal philosophy, associating law with some sort of formal lawmaking by an authoritative body. But as Ratnapala notes, Hayek s critique of positivism is both positive and normative. It is positive in the sense the fundamental laws that make social life possible the laws that protect life, liberty and property and sanctify contracts were not made but arose spontaneously as the result of accumulated human experience. 14 For example, the practice of promise keeping arose long before there was any government to make law or enforce contracts. 15 In turn, this simple rule perform your promises enables strangers from all around the world to cooperate in the production of complex economic production and exchange. 16 More important, Hayek argues that legal positivism fails as a normative matter by implicitly identifying the law exclusively with state law, positivists gave a false account of law and banished from jurisprudence many rules on which the social and economic order, and hence, the authority of the state rests. In particular, Hayek argued that by obliterating the distinction between law as rules of conduct and legislation directed to the achievement of particular ends, legal positivism has undermined an important condition for the prevalence of the rule of law. 17 Ratnapala goes on to identify three critical elements to Hayek s epistemology: a rejection of Cartesian dualism (meaning that the mind is independent of its surrounding environment), the primacy of the abstract (our minds naturally organize the world into abstract categories, not random data points), and the complex and spontaneous order nature of human social systems and environments. 18 These factors, and especially the last, limit the ability to combine all information in one or a select few minds and to use it to construct from this knowledge of the particulars a desirable social order For an introduction to the emergence of the historical school of jurisprudence, see Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale (1994) 103 Yale Law Journal 1651, Ratnapala, above n 1, 46. Ibid; see also Todd J. Zywicki, Libertarianism, Law and Economics, and The Common Law (2013) 16 Chapman Law Review 309. Ratnapala, above n 1, 46. Ibid 48. Ibid. See also Charles J. Goetz and Robert E. Scott, Enforcing Promises: An Examination of the Basis of Contract (1980) 89 Yale Law Journal 1261 (noting that common law contract doctrine promotes coordination and exchange by not enforcing certain promises, such as intra-familial promises, but relying instead on informal norms of family relationships). Ratnapala, above n 1, Ibid 49. Ibid 51.

4 314 University of Queensland Law Journal 2014 With this background in mind, Ratnapala turns to Hayek s distinction between two types of law: thesis, being the rules of an organization designed to enable that organization to attain a particular outcome; and nomos, which consists of purposeindependent rules that operate in a spontaneous order and which enable individuals to pursue their own purposes within the overall spontaneous order. A spontaneous order, however, has no purpose or goal of its own it exists only to enable the individuals who participate within it to serve their own goals. Hayek sees the common law as a notable example of a spontaneous order: The law of contract has no purpose. Yet, all persons use that law for all kinds of private purposes from buying a bus ticket, to going to the cinema, getting medical treatment, going on vacation, effecting a corporate takeover, and satisfying innumerable individual needs and wants. 20 The role of the judge in such a system is the maintenance of the ongoing order, not to direct certain outcomes. Thus, contra legislators, common law judges do not seek to bring about specific outcomes, as does a legislature through bodies of law such as labor law, landlord-tenant law, or the like. A common law judge contrary to positivist theory, is not a deputy legislator with delegated legislative power to bring about particular social outcomes, such as wealth redistribution. Instead, common law judges should seek to uphold individuals legitimate expectations as to how they and others should act. Nor are the written decisions of common law judges the law in the sense that the text of a statute is an authoritative law; the cases are illustrations of general rules that guide the decision. 21 Ratnapala argues that the modern corruption of law stems from two key errors, according to Hayek. The first is the false identification of law with legislation. The second was a failure to appreciate the purpose of the separation of powers. In particular, the purpose of the separation of powers rests in how those powers are defined substantively, not how they are formally divided. According to Hayek, the proper understanding of the separation of powers is functional: separation of powers should be to guarantee that those laws that are made are general in their application to both rulers and the governed and that the laws do not make arbitrary distinctions, especially distinctions that result from rent-seeking or factional influence. 22 B The Trident Case and the Evolutionary Theory of F.A. Hayek In The Trident Case and the Evolutionary Theory of F.A. Hayek, Ratnapala explores one of the most important and most misunderstood elements of Hayek s thought his evolutionary model of jurisprudence. Ratnapala s task is somewhat ambitious to vindicate Hayek s theory of common law jurisprudence as both more predictive and more normatively appealing than rival approaches to law, such as legal positivism and natural law theory. As noted, a distinctive characteristic of Hayek s view of common law is its distinctive tie to the historical school of jurisprudence. In The Trident Case and the Evolutionary Theory of F.A. Hayek, Ratnapala seeks to crystallize Hayek s abstract theory into a workable model of jurisprudence and to understand what the applied implications of Hayek s theory would be for law. Although often referred to as the historical school of jurisprudence, Ratnapala describes Hayek s theory more broadly as an evolutionary theory of law which embraces the romantic, the historical and the anthropological schools. 23 Ratnapala Ibid. Ibid 54. Ibid Ratnapala, above n 2, 202.

5 Vol 33(2) Hayek s Jurisprudence: And Ratnapala s Hayek 315 identifies two key anthropological facts that underlie an evolutionary theory: The first is that there was always law. The second is that, until recently, deliberate lawmaking was not commonplace. 24 Moreover, it is misleading to think that law must be either positivist (entirely artificial) or natural. Much of law rests in a third category, often ignored or overlooked by modern thinkers, which is customary or evolutionary law. Evolutionary or customary law represent[s] a third and distinct category, which [is] neither natural nor artificial. It [is] the result of human action but not of human design. 25 While evolutionary law is conventional, in that it arises endogenously from the interactions of individuals not from nature, it is also not entirely artificial or arbitrary, in that it exists prior to and outside the rules laid down by the state. 26 As Hayek writes, In such an effort towards the development of a body of rules, most of which are accepted by the members of society, there will therefore also exist an objective (in the sense of being inter-personally valid, but not universal because it will be valid only for those other members of the society who accept most of its other rules) test of what is unjust. 27 This shared understanding of justice is the predicate for, not the result of, individuals living together in society. For Hayek, therefore, the role of the judge is to discover the law in the evolved set of individual expectations of the norms of just behaviour and in so doing to contribute to the ongoing evolution of that system of rules. 28 The role of the common law judge, therefore, is not to devise a rule that seeks some identifiable end-state model of justice, whether given by nature or a sovereign lawmaker. Instead, it is to discern the legitimate expectations of the parties to the dispute and to determine how the evolved set of rules gives rise to parties potentially conflicting expectations. In this sense, the role of the judge is to further the continued development of the spontaneous order of law, which is a bedrock foundation of the spontaneous orders of the market and peaceful society. Because this evolved law aims to serve the ends of the members of the community, by maintaining the institutions necessary for individuals to pursue their disparate ends, it is by nature abstract and endindependent, operating as an input into individuals decisions as they pursue their own goals, rather than seeing the purpose of law as being to direct individuals toward some social or political goal. 29 In Hayek s theory, the judge s duty is to serve and maintain the ongoing order. This order, itself, is spontaneously growing, hence the judge needs to recognise and uphold the new expectations generated by this process. 30 The task of the judge in a spontaneous order model of judging is to engage in a process of immanent criticism within the existing legal order, not critical analysis assessed by reference to some external standard. 31 One attraction of such a model of immanent criticism is that it provides a theory of law that is consistent with what was viewed as the traditional common law method of judging, which instructed judges to Ibid 205. Ibid 207. See Edward Peter Stringham and Todd J. Zywicki, Hayekian Anarchism (2011) 78 Journal of Economic Behavior and Organization 290. F. A. Hayek, Law, Legislation and Liberty, Volume 2: The Mirage of Social Justice (University of Chicago Press, 1976). Stringham and Zywicki, above n 26; see also Todd J. Zywicki, A Unanimity-Reinforcing Model of Efficiency in the Common Law: An Institutional Comparison of Common Law and Legislative Solutions to Large-Number Externality Problems (1996) 46 Case Western Reserve Law Review 961, Ratnapala, above n 2, Ibid 215. Ibid 217; see also Sanders and Zywicki, above n 4.

6 316 University of Queensland Law Journal 2014 seek to fit new cases and the rules that they spawn as tidily and consistently as possible with the ongoing system of rules and precedents. 32 Changes in common law are smooth, gradual, predictable, and occur at the margins of doctrine. 33 Moreover, the modesty of the task for judges to engage in immanent criticism rather than thoroughgoing reconstrution is consistent with Hayek s view of the radically limited nature of the amount of information that any judge can collect with respect to the implications of his decisions and the effects on individual welfare. 34 Whereas the strength of the common law is in its gradual evolutionary nature, this same attribute imposes common law s limits. Because of the nature of the judicial function within an evolutionary system, the common law judge is ill-suited for changing the law when it requires a large discrete break with the evolved rules or would require a sudden shift to a different path. Thus, Hayek argues that it may be necessary on occasion for the legislature to intervene to address dead ends in the evolutionary process, where it is necessary to redirect the law in a radically new direction going forward. Yet opening up law-making to the vagaries of the political process invites rent-seeking and factional behaviour. Given this danger, Ratnapala asks, why does Hayek nevertheless believe that judges should not themselves take steps to reform the law? The reasons are twofold. The first is that once the law develops down a certain path for a substantial length of time, it becomes inappropriate for judges to reverse course. The reason is that the community re-orders its behaviour in the expectation that the rule as developed will be observed. As judicial legislation is always retro-active, judges cannot reverse the law without defeating reasonably-held expectations. In these circumstances legislation (which is generally prospective in operation) is required to correct the grown law. 35 By contrast, there is nothing inappropriate with the ordinary gradual evolutionary process of judge-made law, which evolves in predictable directions and, in many cases, is simply articulating or clarifying underlying beliefs. Second, limiting the judge s role to immanent and gradual reform, rather than radical reform, reflects the limits in the training and knowledge confronting the judge. Given the dramatic limits on the judge s ability to anticipate all of the repercussions flowing from his decisions, even a judge committed to radical reform would have limited ability to anticipate all of the unintended consequences of his decision and to anticipate whether the decision would actually accomplish the desired goal. As Ratnapala writes, The incremental nature of [immanent] reform and the aim of maintaining the ongoing order minimizes the likelihood of unintended repercussions in the factual order of actions. 36 More radical reform, by contrast, can have widespread repercussions, which need to be anticipated and provided for. The judicial method simply does not permit the judge to work out these consequential changes. The judge can make law only with respect to the case before him. 37 As a result, even if a judge does advance a radical change in the law, he must still rely on future judges to develop the doctrine in future cases, a process that could take substantial time and throw reasonable expectations into flux. Finally, Ratnapala observes, when a judge abandons the goal of immanent criticism within an evolving order shaped by individual expectations in favour of radical reform, the judge is raising serious questions of democratic legitimacy as a result of the inherently political nature of such decisions Ibid. Ratnapala, above n 2, 217. Ibid 218; see also Sanders and Zywicki, above n 4. Ratnapala, above n 2, 217. Ibid 218. Ibid.

7 Vol 33(2) Hayek s Jurisprudence: And Ratnapala s Hayek 317 The distinctive element of Ratnapala s article on this point is to apply the Hayekian model to explain the evolution of legal doctrine in one particular area of legal doctrine, which he does through his analysis of the Trident Case, decided in the late-1980s. Ratnapala argues that the jurisprudential approach used by the judges in that case is consistent with Hayek s explanation of how judges actually make law. On this point I offer no expertise in Australian law to judge the accuracy of Ratnapala s analysis. II REFLECTIONS ON RATNAPALA AND HAYEK Ratnapala s reading of Hayek avoids many of the important errors that frequently plague those who try to understand and explain Hayek s legal theory. Most importantly, Ratnapala recognises that Hayek s theory of law is fundamentally rooted in Hayek s theory of epistemology. Thus, he avoids the errors of others who simply try to read Hayek s legal theory without understanding Hayek s fundamental theory of epistemology and how that theory of epistemology manifests itself in economic, social, and legal institutions. As a result of this superficial understanding of Hayek s epistemology, few other thinkers have the depth of understanding of Hayek to appreciate the relationship between common law and the spontaneous order of society and the economy, and instead fall back on Hayek s earlier, less-mature views of law and the rule of law. 38 To fully understand Hayek s legal philosophy requires recognizing that his development of his theory of the nature of law in LLL is consistent with and derived from his larger epistemology and understanding of the nature of spontaneous versus designed orders. But Ratnapala also avoids an error that is frequently committed by those who criticize Hayek from the opposite direction, arguing that Hayek is unduly faint-hearted when he qualifies his commitment to customary law and the common law by urging legislative intervention when common law runs into evolutionary dead ends. The criticism on this point is obvious: if it is the case that legislation is an inherently flawed technique for making law, why would Hayek nevertheless argue that legislation is suitable when it is perceived that common law evolution has reached a dead end? It appears that Hayek s argument on this score is internally inconsistent: in urging the use of legislation to correct evolutionary dead ends, he seemingly ignores all of the caveats and warnings that came before about the limited knowledge and propensity for rentseeking generated by the legislative process. But as Ratnapala suggests, this reading of Hayek is too narrow. While this criticism seems incisive when reading Volume 1 of LLL in isolation (which focuses on the common law and legislation), it ignores that Rules and Order is just one of the three volumes of LLL. In particular, in Volume 3 of LLL ( The Political Order of a Free People ) Hayek discuses his plan of how to tame the adverse effects of modern legislation run amuck. In Hayek s plan for an invigorated separation of powers, the legislature would be guided by a generality norm that would eliminate the most nefarious elements of modern legislation the tendency for legislatures to intervene at the behest of politically powerful interest groups to provide advantages at the expense of the general public. 39 By dividing power between the legislative assembly and the governmental assembly, with judicial review against the test of generality, it is believed that legislation can be made that will produce general and impersonal rules Zywicki, above n 3. Ratnapala, above n 1, 57.

8 318 University of Queensland Law Journal 2014 Leaving aside the somewhat fanciful details of Hayek s proposed Model Constitution and stepping back, there is a more general point here that needs to be stressed: 40 when Hayek criticizes legislation in comparison to common law, he has a particular type of legislation in mind, i.e., legislation that seeks to direct specific outcomes, usually enacted at the behest of power interest groups. And, to be sure, the overwhelming bulk of legislation is of this category. But this empirical observation about legislation should not be confounded with an a priori claim about the intrinsic nature of legislation. It is possible for legislation to be enacted that has the characteristics of common law: abstract, impersonal, purposeindependent rules designed to further and maintain the spontaneous order systems of law, society, and the economy. Thus, the fact that legislation frequently takes the form of thesis instead of nomos does not mean that legislation and thesis are necessarily synonyms. Thus, although Hayek is distressingly vague and careless about how he expresses himself on this point, when he argues for the possibility of legislative interventions to correct evolved dead ends in the common law, he implicitly is urging that such legislation take the form of nomos, or common law-like rules that are abstract, impersonal, and purpose-independent, not the traditional thesis form of legislation. Consider an example. Historically, the common law of tort recognised contributory negligence as an affirmative defence to the tort of negligence. Under the contributory negligence doctrine, a tortfeasor was discharged from liability for a victim s damages that resulted from the tortfeasor s actions if the victim was negligent as well, regardless of the degree to which the victim s negligence contributed to the accident. Beginning in the 1950s in the United States, however, it was argued that the regime of contributory negligence was unjust and that that long-standing rule should be replaced by a rule of comparative negligence, under which the relative contribution of the tortfeasor and victim would be weighed for the extent of their contribution to the accident. 41 Yet although a consensus rapidly formed in favour of replacing contributory negligence with comparative negligence, supporters of the new rule nevertheless ran into a potential problem: the rule of contributory negligence had been around for hundreds of years and had been repeatedly reaffirmed and elaborated during that time. Judges who take seriously the traditional approach to the common law that the common law is retrospective and embodies certain established principles designed to vindicate parties legitimate expectations could find themselves in a difficult predicament when it comes to recognizing a new and novel rule such as comparative negligence. In short, for the Hayekian judge seeking to vindicate the legitimate expectations of private parties the doctrine of contributory negligence had reached an evolutionary dead end, blocking the adoption of comparative negligence. This situation of the substitution of comparative negligence for contributory negligence illustrates Hayek s claim about the propriety of using legislation to rectify evolutionary dead ends in common law precedent. While it might be preferable to replace the doctrine of contributory negligence with comparative negligence, it also follows from Hayek s philosophy that the task of updating should not be that of judges, but rather legislatures acting prospectively. But importantly, the new legislative rule of comparative negligence has the same fundamental characteristics of the old common law rule of contributory negligence it is an abstract, impersonal, purpose-independent rule. But in the estimation of the legislature (and others) it is a new abstract, The following is my own reading of Hayek and should not be attributed to Professor Ratnapala, who may or may not agree with the following. This position was advocated most notably by William Prosser. See William L. Prosser, Comparative Negligence (1953) 51 Michigan Law Review 465.

9 Vol 33(2) Hayek s Jurisprudence: And Ratnapala s Hayek 319 impersonal, purpose-independent rule that will promote social coordination and harmony and, once established, will presumably be more consistent with individuals expectations than the old (and somewhat arbitrary) rule of contributory negligence. Hayek also argues that one notable characteristic of common law rules is that they reflect a set of intuitively-understood social rules that are understood to exist prior to and independently of the state, much less a sovereign legislature. Consider common law crimes. The doctrine of common law crimes has been criticized by modern scholars as violating norms of fair notice to those prosecuted, on the ground that the ambiguous definition of those crimes makes it difficult for the accused to know whether they have run afoul of the law. As a result, it is argued that crimes should be codified and defined in precise detail in a piece of legislation. Yet it is easy to overstate the ambiguity of common law crimes: common law crimes consisted of activities such as murder, assault, or arson, hardly difficult crimes to define and ones which most civilised defendants knew or should have known were illegal. As Ratnapala notes, the behaviours that the common law identified as crimes, such as murder, rape, theft, trespass all impose negative duties on individuals, and one might add, reflect bedrock principles of human social order that predate not only legislation, but the state itself. Compare these easily understood wrongful behaviours with modern statutory crimes, such as mail fraud or racketeering. It is possible to define the term mail fraud in extreme detail in a criminal code. Yet, after reading pages and pages of definitions and elaborations, few people will have any idea whether a particular behaviour qualifies as mail fraud or racketeering. Although the language is detailed, it is not precise. Moreover, common law obligations such as tort, contract, and criminal law can evolve gradually over time as social understanding evolves, thereby preserving congruence between individual intuitions and the law. Legislation, by contrast, evolves according to the whims of legislatures and the relative power of various interest groups. Therefore, even if legislation is more predictable in the short run because of its potential precision, there is no reason to expect that the law today will be the same tomorrow. 42 Moreover, evolution will not be gradual, but instead will be discrete and jumpy, as legislatures and regulators update law at periodic and unpredictable intervals. Finally, because of the public choice dynamics and shifting political coalitions, even when legislation does evolve, it does so in unpredictable directions and at unpredictable speeds, as winning legislative coalitions are formed and collapse. On the other hand, note that it is precisely this ability of legislatures to make evolutionary leaps in unpredictable directions that can provide the value of legislative responses to evolutionary dead ends. If legal doctrine can move from one principle to a related similar principle in a smooth and predictable manner, then no legislation is needed. It is because, for example, comparative negligence is a discrete and discontinuous break from the evolutionary path of contributory negligence, that legislation is appropriate. III CONCLUSION Suri Ratnapala s analysis of Hayek s legal theory stands as being among the most authoritative and insightful discussions of Hayek s jurisprudence. Ratnapala s comprehensive familiarity with Hayek and deep familiarity with Hayek s intellectual influences have enabled Ratnapala to shed insight into Hayek s thought. Thinkers of a more narrow scope, most notably standard legal philosophers ignorant in economics, epistemology, and the history of the common law, have simply failed to grasp and appreciate Hayek s contribution to jurisprudence. Hayek s range and depth of 42 See Zywicki, Bruno Leoni, above n 5.

10 320 University of Queensland Law Journal 2014 knowledge is formidable Suri Ratnapala is one of the few thinkers whose impressive intellect is a match for Hayek s.