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September 16, 2004

Hayek and the common law, reconsidered

Due largely to the influence of the late Friedrich Hayek, a couple of generations' worth of libertarians and classical liberals have venerated the historic English common law as the most admirable of governmental institutions: evolved with glacial slowness from customary rules, free from influence by kings and legislators, infinitely flexible and sensitive to the facts of cases, a restraint on centralized state power, and so forth and so on. But, argues Ronald Hamowy in Cato Journal, this portrait is at best over-idealized: "Not only is Hayek’s account defective in that it does not reflect the severe limitations of the early common law, but his conclusions regarding the origin of its rules are questionable." A useful corrective to the "common law good, other forms of law bad" mode of pop-Hayekian argumentation (table of contents/article in PDF form).

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.