Hayek and norms

by Russ Roberts on September 1, 2009

in Complexity & Emergence, Law, Podcast, Uncategorized

The latest episode of EconTalk is Mike Munger on cultural norms.

Toward the end of the podcast, I mentioned that I wanted to bring up two more points. I talked about the first point. Forgot to mention the second. Here it is.

In Law, Legislation, and Liberty, Volume 1, Hayek outlines a particular view of what judges should do–they should discover the law. Hayek was making a profound distinction between law and legislation. Law is what emerges from our behavior interacting with each other and it evolves. Legislation overlays that and effects it. But what judges should do when deciding a case is to discover what our expectations were of the behavior of the people we interact with.

To use the example from the podcast, suppose I buy a house from you and you promise in the contract to deliver it in “good condition.” What does that mean exactly? Each of us has an expectation of what that means in America in 2009 and it’s probably different from what it would be in Argentina in 1875. In America, if I buy a house from you and find a lot of your stuff still here because you didn’t have time or didn’t want to bother with clearing it out, you probably have not fulfilled the contract. In another time and place, that might be a feature not a bug.

But the way I understand Hayek is that if I take you to court because I don’t think you lived up to the contract, then the goal of the judge isn’t to figure out what the legislature meant if it mandated a house being turned over in “good condition” but rather what you and I would expect from each other in such a situation.

Expectations are crucial because they allow me to plan with some measure of certainty, using hte information that I have (and that others may or may not). So for Hayek, norms are crucial in helping us to interact and are essentially what he calls law.

Here is the EconTalk episode with Don Boudreaux on the Hayekian distinction between law and legislation.

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MWG September 1, 2009 at 5:36 pm

Your discussion with Munger are always the most interesting regardless of the topic.

James September 1, 2009 at 5:48 pm

And yet “discovery” of the law (read: making law) is why so many people have a problem with the bench.

I fully agree that norms change, and now change more quickly than ever before. But, do we want these changes evaluated and imposed on us by those we don’t elect?

Anonymous September 1, 2009 at 7:33 pm

Discovering the law and making the law are different things entirely.

And, would you want “these changes” evaluated and imposed on us by those we DO elect?

James September 2, 2009 at 3:40 am

Discovering law is not entirely different from making law. In fact, they are identical.

How do judges know what “our” expectations were of the behavior of the people we interact with? Do they conduct straw polls? Are they omniscient? Of course not. They end up ruling based on what they think our expectations were, or more likely, should be.

And, while I would rather not have “these changes” imposed on us by those we elect, that’s how democracy works: it’s majority rule. I’d sure as hell rather have the laws imposed by someone I have a chance of electing or persuading, rather than someone I didn’t elect who has life tenure…

Thrasymachus September 1, 2009 at 6:34 pm

But are some laws/norms or statutes better than others? If so, on what basis do you distinguish them?

Anonymous September 1, 2009 at 6:58 pm

Not to mention, the norms recognized and given legal value by the courts, especially appeal courts that cover vast areas of a nation the size of the United States, can vary widely from area to area. A supreme court decision can (and frequently will) violate the norms of our individual states with regards to: privacy, sexual conduct, abortion, firearms, etc. So legislation is important, because it forces national standards to be subjected to public scrutiny.

And the amendment process is much more accountable than a court of life appointed judges.

Anonymous September 1, 2009 at 7:40 pm

Interesting – I’ll make sure to listen to it. I’m not sure entirely what I think about this, but insofar as a court is “activist” or “loose constructivist” I’ve even heard, I think it needs to be along these lines – taking a discovery/identifying expectations/relevant norms approach to an unambiguously original, constructed document – whether that is the Constitution or legislation. I think that’s very different from the type of judicial activism that is rightly derided in the media.

Greg_Ransom September 1, 2009 at 7:52 pm

The learning of “cultural norms” changes not only our ability to produce linguistic sounds, it changes our ability to _hear_ different sounds, people from different linguistic groups cannot hear all of the same diphthongs, and the acquisition of these different hearing abilities begins in the womb.

Greg Ransom September 1, 2009 at 8:01 pm

Note that Hayek was a close student of the work of his second cousin Ludwig Wittgenstein, and that Hayek’s “rule governed behavior” turn came via Hayek’s reading of the work of the Wittgensteinian philosopher RS Peters.

Anyone interested in the “cultural norm” problem is advised to become familiar with Wittgenstein’s later work — which was inspired in part by the Italian gesture of a Cambridge economist which Wittgenstein did not understand.

And recent research on the biological differences between innate universal gestures and expressions and culturally acquired meaningful gestures and expressions is also highly recommended — much of Wittgenstein’s work in on the relation between what is natural and innate to us and who this is linked to arbitrary cultural shared patterns/signs which have their significance in deeply structure “ways of going on together” and commonly shared natural mental structures. Hayek has several very important papers in this area, especially on the limits of explicit articulated rules to fully capture these deep and shared structured patterns of “going on together”. Hayek links this up to the unfolding of the development of the articulated rules of law in ways suggested by Russ in his posting

Greg Ransom September 1, 2009 at 8:11 pm

Russ, this is sort of incoherent. What the legislature would have meant can only be understood in terms of the linguistic and cultural norms of the community in which they are writing laws — their act of legislation is essentially meaningless and absurd without this wider context of meaning. The judge is doing nothing else but figuring out what the words of the legislature mean when he looks at the whole social context of their use of language in order to understand its meaning. And if an elite understand the meaning of the words differently and they have different practices, then most likely they will impose that cultural practice in the use of words on the subject communities. This happens all the time.

Russ writes:

“the goal of the judge isn’t to figure out what the legislature meant if it mandated a house being turned over in “good condition” but rather what you and I would expect from each other in such a situation.”

Anonymous September 2, 2009 at 3:24 pm

Greg is exactly right. Hayek applied to law doesn’t work. Hayek made the point that we can’t engineer predicted outcomes in free markets. Exactly right. But the law isn’t a free market. The law is the welcomed shutting down of the free market of behavior. To say otherwise is to eliminate the concept of blind justice. First justice has to have a peak at each person to decide what the law means to them.

Anonymous September 1, 2009 at 8:17 pm

… the goal of the judge isn’t to figure out what the legislature meant if it mandated a house being turned over in “good condition” but rather what you and I would expect from each other in such a situation.

If you and I agree on what we expect from each other in this situation, we aren’t in court in the first place.The law/legislation distinction is reasonable enough, but most people mean “legislation” when they use either term. What Hayek calls “law” here is what I ordinarily call “custom”. Common law can codify custom, but in practice, common law is the repeated will of judges, customary or otherwise.After one of the proprietarians here accused me of kulakicidal mania, I read a little Russian history and discovered that a local administrative unit that we might confuse with “communism” preceded the short-lived Kulak system that followed nineteenth century agrarian reforms of the feudal system.Local organizations called Obshchina governed land use, and in particular, a local Obshchina could redistribute land among families as family composition changed, so if a family had many sons, it might gain property in the Obshchina’s arable land, because the family with more sons was more able to tend the land. I don’t know exactly how it worked, but some council of elders presumably decided in practice.In this system, land didn’t belong strictly to anyone, but labor belonged to the family, and a family’s capacity to farm land with its labor determined land ownership. I doubt that any central authority ever dictated this system. I suppose it arose naturally, far more naturally than the Kulak system.The Kulak system extended credit to property holders who gained title by repaying the credit, regardless of family ties, family size and other customary factors. The more customary Obshchina system existed for ages before the Kulak system began to displace it, not by any evolutionary process but after agrarian reforms decreed by central authorities in the Russian monarchy, namely the Stolypin reforms under Nicholas II.The Kulak system was the “capitalist ownership” that Bolsheviks tried to uproot and replace with collective farming, but Kulaks had existed only for a few decades at this time. The much older Obshchina system, which Bolsheviks also sought to replace, was actually the customary land governance that evolved over centuries, not the more “capitalist” and short-lived Kulak system.But in the proprietarian subculture often exemplified in this forum, something like the Kulak system is the “right” system, and the more traditional Obshchina system is confiscatory communism depriving private property holders of their natural rights, which are actually more like Hayek’s legislated rights as a matter of historical fact.

Current September 2, 2009 at 9:40 am

In the UK before enclosure there was something similar to the Obshchina system you describe. There was a document called a custumal that described the local by-laws and an organization for enforcing them, the manor court. Within a village there would be a certain amount of cooperation, work would often be carried out by a group of farmer together on the land rather than separately. There were procedures for paying those who worked and a portion for the owner though, so it wasn’t so communist. Even after enclosure farmers didn’t only work on the land that they owned, certain tasks, such as bringing in crops a village would do as a group.

However, this doesn’t lead to the conclusions you wish it to. Stalin did not intend to resurrect the Obshchinas, which were essentially local cooperative. Rather he put in place by force a centrally directed system different to both of the systems that had come before.

Anonymous September 2, 2009 at 2:29 pm

Rather he put in place by force a centrally directed system different to both of the systems that had come before.

I say just that above, so you missed the conclusion I wish.Again, the bolsheviks wanted to replace the Obschinas as well as the Kulaks with collective farms. The collective farms were supposed to be “modernization”, not the traditional, feudal, family oriented (“paternalistic”) practice. The ideal for the central planners was more like the large, corporate farms now common in the U.S. but with party apparatchiks in charge rather than corporate proprietors accumulating and holding the land to profit by repaying credit. The New Socialist Order opposed both.”The man now being actually supreme in the house, the last barrier to his absolute supremacy had fallen. This autocracy was confirmed and perpetuated by the overthrow of mother-right, the introduction of father-right, and the gradual transition of the pairing marriage into monogamy. But this tore a breach in the old gentile order; the single family became a power, and its rise was a menace to the gens.”Engels, Origins of the Family, Private Property, and the StateBy contrast, I favor reforms in a direction I sometimes call “parentalism”, a more gender neutral form of traditional paternalism. These reforms entitle supportive parents to a portion of their children’s income (as opposed to a Social Security check) for example, this income clearly being a yield of parental investments.The new Russian constitution includes a similar obligation. Article 38 states:

1. Motherhood and childhood, and the family shall be under state protection.2. Care for children and their upbringing shall be the equal right and duty of the parents.3. Employable children who have reached 18 years old shall care for their non-employable parents.

The creeping corporatism of U.S. state capitalism (including systems like Social Security) is not moving in this direction at all. U.S. law is as hostile to the family as Soviet Socialism ever was.

Justin P September 2, 2009 at 12:24 am

Your podcast with Mike are the absolute best.

I loved the talk about the Old woman and the shopping cart, it was hilarious.

Anonymous September 2, 2009 at 7:28 am

If all cops were clones of this one, the state might be more tolerable.

The woman in line at the theater was also a riot, but Munger didn’t tell us why he chose to get mad rather that get even. Why didn’t he let her call the cops? Why didn’t he step in front of the woman and tell the next (wo)man behind her, “She’s your problem now.”? Did he really fear the feminine wiles, or was he only caught off guard? Would the woman’s gambit have paid off? Would she have won the cop’s sympathies? Are feminine wiles really so valuable?

Don’t answer that. I need some sleep myself.

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