In this episode of Arbitrary, Parv Tyagi (Managing Editor, LSPR) sits down with Prof. Suri Ratnapala to discuss the evolutionary school of thought in law. They discuss how the evolutionary school distinguishes itself from the Positivist and the Natural Law traditions that have dominated academic and judicial discourse for about a century now. They discuss the pioneering role of F.A. Hayek in the advancement of the evolutionary thought, in particular, they discuss how his economics informed his view of the law and what role does a Hayekian judge play in the process of law making. They also discuss the important differences between the methodological approaches of the evolutionary school and the Law & Economics school – something that has long confused students and scholars of law.
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Greetings to all our listeners. Today we have with us Professor Suri Ratnapala of the University of Queensland, Australia. Professor Ratnapala has been the Chair of Public Law at the University of Queensland. He has taught jurisprudence, constitutional law and political economy at universities in Australia, the UK, the US, Germany and Italy. Professor Ratnapala’s academic career spans over several books, including Welfare State or Constitutional State, Jurisprudence, and Jurisprudence of Liberty. Professor was also awarded the Centenary of Australian Federation Medal in 2003, for his contribution to law and economics. He’s also a fellow of the Australian Academy of Law for exceptional distinction in the discipline of law. Professor Ratnapala has written extensively on the evolutionary school of thought, the evolutionary school of thought in law, which will form the crux of our discussion with him today. We’ll also discuss with him Hayek, Friedman, the Law and Economics school, Burke and other thinkers and the implication of their thoughts on jurisprudence. Welcome to the show, sir.
Prof. Suri Ratnapala
Oh, thank you very much and good afternoon. Thank you very much for inviting me to this podcast. I found it very challenging and very, very interesting to work on.
Just to give our listeners background, there are broadly two schools of thought which are dominant in jurisprudence – the positivist school and the natural law school. The positivists posit that law is a matter of practice and observable social fact and so its value is derivative rather than intrinsic. That is to say that law is not an intrinsically moral idea and jurisprudential inquiry should reveal to us the law as it is, and not law as it ought to be. The other school of thought that is dominant is the natural law which posits that we can never grasp the nature of law by only carefully describing what the law is, but only by describing its relationship to the ideal. In other words, as Professor Ratnapala puts it in his book, the term “Law” is an honorific label that is to be applied only to just institutions. As opposed to these two dominant schools of thought, we have the evolutionary school of thought, which shall form the crux of our conversation today. So, to start off sir, our first question is: can you detail and explain the evolutionary school of thought for our listeners? How is it different from the positivist and natural law traditions? Its principal propositions? Its major thinkers etc.?
Prof. Suri Ratnapala
Before we get to the evolutionary tradition, in jurisprudence, I agree with what you said about the positivist school of thought. The positivists do offer some definitions of the “law”. If you take Austin, for example, he identified law with the ‘command of a sovereign,’ but obviously, the problem is that not every society has a sovereign of the type defined by Westerners. Then, if you look at the modern positivist, H.L.A Hart traces the law in the case of a developed legal system, to the rules of recognition that are established within a constitutional system. If we take Hans Kelson’s theory, which is quite similar actually except that it is based on a transcendental idealistic basis, a law is a law or valid if it can be validated by the norms which ultimately are all validated by the basic norm of the legal system, which provides the unity of all norms within the legal system. It’s called the Grundnorm, the basic norm. I want to make two points about legal positivism. I’m not condemning legal positivism from a utilitarian point of view. It is very valuable, particularly for people who want to practice law, you need to know what sorts of rules and arguments will be accepted and imposed by a court of law. So legal positivism actually is very helpful in that respect. What legal positivism actually does is provide a stipulative definition of the law. It tells you this is what we mean by the law. This is what a judge will consider to be the law. But law has a wider meaning as well, in different societies. And in the past, law meant law in a wider and broader understanding. Even now, in traditional societies, often people equate the law with the moral law, the traditional customary law. So, only some of these rules are recognized as state law.
Now, when it comes to natural law, I agree with what you described. Basically, the natural lawyers in the classical natural law or the traditional natural law consider that formal validity of a law itself is insufficient. Some people you know, the most orthodox, or the most theological theory of natural law would say that an unjust law is not a law. Others wouldn’t go so far but will say that the higher moral role whether it is derived from theological sources or other sources should provide guidance to the making of law and provide a basis for criticizing positive law. Now, I just want to mention that there is also another school of thought, a modern school of thought that arose out of the Enlightenment, which is natural rights theory. Now, it’s important, I think, to make a distinction between the traditional natural law and natural rights theory, which arose out of the work of people like Thomas Hobbes, John Locke and Hugo Grotius. What they say basically, is that human beings, by the fact that they live, have to have certain rights in order to survive. As social beings, they also have to have certain rights of association and freedoms to live their social life. So, derived from that empirical fact, they say that there are certain rights that the state should not violate and which the state should protect.
What does the evolutionary approach say? Basically, the evolutionary theory does not offer a definition of the law. What it tries to do is to explain the way in which the law of human societies emerge and how that law changes. This clearly includes the dynamics of legislation, includes the dynamics of positive law, but it is a general theory about where we get these normative principles that become law and how they change? Now, I think an evolutionary account of law provides three important insights.
The first is that there was law before there were lawmakers. It’s very important to understand that even most natural law theories presuppose the existence of a lawmaker. The idea here is it is a law that creates law giving institutions. I think Hart comes close to this and I think he does agree basically that the sovereign could not have existed unless there was law before the sovereign that brought about sovereignty. The second insight is that the social order results from many more rules than formal enactments. They exist in the form of custom or social practices, and some of them become transformed into state law by legislative or judicial action. It’s quite obvious when we look around generally in a civilized cultured society. You will find people going to a sales point at a shop or the railway station or whatever, will naturally have a tendency to form a queue or a line and allow first come to be served first. Now, there is no legislation that requires this, except the general law, that you must not push and shove other people and cause a nuisance or an assault. But people do that without compulsion, maybe there will be some compulsory rules in the establishment itself, but often there is none. In a society like yours in India, you can come up with thousands of social rules which make your society work. They are ranging from the rules of etiquette, customary rules, even superstitions, and taboos. They all give structure to society. That’s the second insight. The third is that the spontaneous order of society does not cease to generate rules of conduct. In one sense, the state law is always catching up with the norms that emerge in society, by technological and cultural changes. Now, where you are in Bangalore, you’re in the middle of what’s known as the technological revolution. So, there’s a great deal of law that arose out of this technological revolution in electronic commerce, domain properties, all kinds of things. Probably you know much more than I do. In the field of commercial transactions, generally, trade usage reflects things that actually happened. Mercantile law was never enacted. Mercantile law arose out of the traditions of the merchants in the Mediterranean ports, who wanted to avoid going into the national courts. State law actually very often follows what happens in society in the way of rule formation. More insights, more and more explanations of this tradition will follow from the answers to your further questions. So those are the important differences.
Who are the principal thinkers of this of this tradition? What is the proposition that they have advanced? If you could enlighten our listeners on that?
Prof. Suri Ratnapala
The first ideas of law as an evolutionary process is to be found in the common law of England. I’ve got a quotation here from Chief Justice Matthew Hale where he says that the law is to accommodate the people and that when conditions change, the law will also change. And he understood that the common law is actually an evolutionary system, a spontaneous order. It provided a shining example to the Scottish Enlightenment philosophers, David Hume, Adam Smith, and Adam Ferguson. They were empiricists. They were studying how people’s normative understandings or rules form in their minds. They came to the conclusion that we form rules for ourselves, by the experience of certain encounters – certain punishing encounters and certain rewarding encounters. The rules of justice are formed insensibly by our experience of doing certain things, and the consequences of certain actions that we take. I think the best example would be, promises. Now, nobody sat down initially to write down the law of contract. Keeping promises was a necessity. Through experience, people realized that if we keep our promises, then then it’s likely that both parties will benefit. By the coincidence of expectations, the institution of the promise came about. There was a time I suppose, in the primordial existence of human race, that we might not have had this – this tradition of promise keeping – where we lived in very small tribal groups or family groups, and it made more sense to capture something or to take by force what other people had or the next group had. But soon enough, they would realize that you can you be better off if you trade rather than kill each other or plunder each other.
The basic idea that the Scottish moral philosophers came to was that there was no one who actually sat and wrote down the laws. The laws and the society co-evolved. It is the formation of rules that brought about social order. Hume made the argument that it is not the state that gave laws to the society. but it is the need to enforce the law that brought about law-enforcing authorities, which resulted in government. There was another school, which is related and somewhat complementary, but with important differences from the evolutionary thinkers, known as the historical school. Savigny, Maine and some of the German scholars also looked at the law as a historical phenomenon, but they had a different outlook about it. Savigny, for example, said that law resided in the conscience of society and that legal experts drew principles of law from that common consciousness. Now the big difference was that Savigny thought that there was a society first which gave itself law, whereas evolutionist argued that you can’t have a society first without having rules [or] law that ordered that society. That was the main difference between the historical school and evolutionary school. Another big difference is that the historical school sought to derive from history, laws that determine the trajectory of history. It’s also called historicism, and that led to unfortunate results. Hegel, for example, thought that the end condition of social development is the state. It was inevitable. That’s where the development of the law will take you. And then of course, Marx thought that the history’s conclusion will be the end of the state and law altogether, which actually results in some sort of utopian communist society.
Now, I think that the main modern exponent or the person who brought it into the 20th century was FA Hayek. He derives his thinking directly from Matthew Hale, Mandeville, Hume, Smith and Ferguson. You also have a question here, asking me, how his contribution is different from the previous thinkers. So, before I address that, we got to understand that the 18th century thinkers were working and theorizing before a number of later scientific developments. They were thinkers before the discovery of genetics by Gregor Mendel. Secondly, Darwin and Alfred Wallace proposed the theory of evolution by natural selection, about a century later. Modern neuroscience developed only in the 20th century. Science of emergent complexity of spontaneous order theory arrived even later. Now, these writers wrote before the Industrial Revolution, mass democracy and commercial society. So, what was Hayek’s contribution? What did Hayek add to this corpus of knowledge that his work widened evolutionary theory or its application to social science in a number of different ways? I mentioned some of them.
First of all, he made a very important contribution. I’m not sure whether you are aware of his work in cognitive psychology. He wrote a book called The Sensory Order. The central nervous system, he argued, of an individual species has evolved through adaptation. It assigns different kinds of attributes to different kinds of sensory experiences that the individual organism receives. In other words, it puts certain kinds of sensory stimuli into certain kinds of classes in the brain, and this is the process of abstraction. Without an abstraction, there is no sensory order but only random impulses. The order created by the abstraction is what we know as the mind. Some of the postmodernist theorists object to the idea of abstraction. The simple point about it is that that we speak by abstraction. When we refer to a man or a woman, it’s an abstraction. We can’t specify every living man or every living woman. So, we have to abstract. Everything that we do is a process of abstraction. If there is no abstraction, we will actually literally lose our minds.
The second important contribution, I think, is to the science of emergent complexity and spontaneous social order. Now science of emergent complexity is an essential part of the theory of evolution. That was intuitively understood by Hume and Ferguson and Adam Smith. Now, there’s a modern science of self-organization, and emergent complexity, to which Hayek contributed important ideas. It is now a very well-established scientific discipline. Hayek’s specific contribution in this field is the application of its insights to large modern societies. He demonstrated with others of the Austrian school like Karl Menger and Ludwig von Mises the futility of micromanagement of complex orders like society to conform to centrally determined plans. Now, the other another area in which Hayek’s work has contributed massively is in the philosophy of science and growth of knowledge. Hayek exposed the evolutionary approach and paved the way to the fallibilist theory of scientific knowledge. Karl Popper and other philosophers of science demonstrated that science grows, knowledge grows, not by proving things, but by the presentation of hypotheses that can be falsified. If you cannot falsify a proposition, factual claim or a theoretical claim, then it is not scientific. You have to accept it on faith. The idea, the fallibilistic idea is that anything that counts as knowledge, is refutable. That it should be refutable is something that came directly out of the evolutionary thinking. Popper argued in a memorable statement where he pointed out that animals also survive and evolve by adaptation and some animals that don’t adapt die away. Now, the difference is that the human race, with its cognitive abilities and language and culture, are able to construct theories and abandon them when they don’t work. So, as Popper said, we can let our theories die in our standard. You may be familiar with Hayek’s essay, The Use of Knowledge in Society. The central problem of economic calculation is that the knowledge is necessary to make overall calculations and plans are actually scattered among the individuals in society. The challenge of economic calculation is to make use of this scattered knowledge, dispersed knowledge. Hayek argued that it is only by allowing individuals to use the knowledge that they alone have of time, place and preference, that you can harness all this knowledge, because no one central authority or one human mind, can collate all of this knowledge. That was the fatal mistake of central planning, systems of government like those of Stalin’s Soviet Union, and even some other systems of economic management, that assumes that the central authority has all the information necessary to make the plans that will work. He wrote this very important essay called The Use of Knowledge in Society. Then, of course, there is his contribution to constitutional political economy and constitutional design. He wrote a very important book on this subject called The Constitution of Liberty and he finessed this work in the third volume of his book, The Law, Legislation and Liberty titled The Constitutional Order of Free People. Basically, he integrated evolutionary epistemology and Austrian political economy to build his powerful case for the rule of law in the classical sense.
Right. So, since you mentioned Hayek and his criticism of central planning, the question I have is, do you see an anti-rationalist streak in Hayek because his is essentially a critique of political reason, right? He wants the sovereign not to intervene in society or in markets, for that matter, because the sovereign does not know, right? The assumption that the sovereign or the state has or can obtain the relevant knowledge to execute its stated goals is illusionary and his explanation of a social order where the blind actions of individuals convert spontaneously without the need for deliberate planning – of course, bears resemblance with Smith’s Invisible Hand concept, but also perhaps with the famous conservative Burke, right, who is also an anti-rationalist in that sense. So, do you see that anti-rationalist streak in Hayek and if yes, do you think it’s inspired from political conservatism in particular, Edmund Burke?
Prof. Suri Ratnapala
I think there’s a connection. Hayek was a great admirer of Edmund Burke who was also critical of the idea that society can be micromanaged and re-engineered according to the plans of a central authority. His ideas are very influential on modern conservatism and many people think that he is one of the creators of modern conservatism. But Hayek argues that Burke remained to the end of his life as a Whig, that is a classical liberal in the sense that we know. So you do have that similarity between the thinking of Edmund Burke and Hayek’s theory of knowledge. Now, I think it is a mistake to think that Hayek is as anti-rationalistic because he was very clear about this. He distinguished between two types of rationalism – constructivist rationalism and critical rationalism. What he criticized was constructivist rationalism. The idea that all social problems, all issues, can be resolved by some logistical method, some Cartesian rationalism, like using a syllogistic method of reasoning. Hayek pointed out that you don’t have the information necessary to construct the premises from which you can deduce the solutions to many problems that we face. That is a fatal mistake that was made by social planners and socialist governments through the ages. Lenin thought that could be done through organizational methods. But what Hayek said was that rationalism should recognize the permanent limitations of human knowledge. It is rational to know the limits of rationality. So, there are there are institutions that we rely on, which we cannot prove to be right simply by using some logical method of reasoning. By selectively and prudently relying on those institutions, we can advance and extend the knowledge that we have, far beyond what we actually can command ourselves. We rely on institutions like I mentioned – contract, the evolution of money, language itself, customary moral rules, and I would personally include the institution of marriage. You would be familiar with Plato’s The Republic where he proposes a system of government in which the state dispenses with family. Basically, the bringing up of children becomes a state function. It has been tried here and there, but with disastrous consequences that you could see. You can logically argue that you don’t really need a husband and a wife and a mother and a father. But we know that it works as thousands of years of experience tells us. So, there are institutions like that, that we rely on, to extend our knowledge. This idea I found in Hayek: in primitive conditions, a savage needs to know much more, then we would have to know. The savage living in a jungle in very primitive conditions would need to know how to treat himself if there are any illnesses, or wounds or whatever, that afflict them. He would have to know a lot about the weather, he would have to know a lot about ecology. He has to be an expert on a lot of different things. But today, we don’t have to know a lot about medicine to survive. What do we do? We go to a doctor, and what’s the institution that we use? We use the institution of the contract. The institution of the contract allows us to harness the expert knowledge of all manner of people. You use the expert knowledge of some of your teachers and at every turn, we extend our knowledge by obtaining services and goods from other people, which in primitive society, did not happen. So, in that sense, I was trying to say that if you want to be rational, you need to know the limits of your rationality and you must learn to expect that our knowledge of the world is irremediably limited. For that purpose, we had to rely on knowledge of institutions which encapsulate much more knowledge than any individual can have. So, it is in that sense that Hayek would reject rationalism of the Cartesian type.
Now, Sir if you could sort of contextualize this discussion, in the particular context of law and lawmaking, what role would Hayek assign to a judge? If knowledge is dispersed, no single actor can have knowledge, all relevant bits of knowledge required for decision making, how should the judge then make decisions and what would the process of rulemaking look like if this abstract, theorized idea of evolutionary thought were to be applied?
Prof. Suri Ratnapala
We have to understand that before codification of the law in Europe, it was a combination of Roman statutes and customary law of the different places that made up the law. So Napoleon started codifying the law. Previously, of course, Gaius and Justinian did it in the Roman Empire. But there was always customary law that was evolving in societies that had to be adjudicated upon in order to resolve disputes. Now, in England, the codifications never happened. So, common law was the dominant way in which law was made until, say, 100 years ago, when legislation became the primary way of making new laws. So, let’s see how common law produces the rules upon which society is organized. And it’s important to note that much of what you will find in the Universal Declaration of Human Rights, and the various human rights treaties and instruments is actually common law, or common law inventions so to speak. They were presumptions in the common law developed through the process of common law adjudication, but leave aside those basic rights and liberties. How did the common law arise? Initially, in a society, people get by, according to their understanding of the rules that order their particular society, and when there is a conflict, you have to go to some sort of arbitration. In the beginning there were in primitive ages, in medieval times, trials by fire and tribulations of various sorts, which was based on a religious understanding that if you subject yourself to fire or torture, the person who survives is a person that has, in God’s wisdom, done the right thing. So once that’s out of the way, how do you resolve disputes?
So the theory behind the common law is that people come to the court making claims based on what their expectations were, according to their understanding of the rules that were relevant to the activity concerned. And the judge’s duty was to determine whose claim was better justified or better legitimated by the rules that people have come to rely on. So, basically, what the judge was asking was, what is the rule here, that reasonable people, that most people relied on, and that is the rule that resolves the dispute and so, that provided the basis of an established rule.
Hayek said that a spontaneous order, such as the common law will always have a need for the reparation of ruptures. For example, you know, two rules can collide because of different expectations, that arise in the activities of the community, and those can actually conflict. I remember doing a study of insurance law: a recent case, which turned out to be a very Hayekian type of judicial resolution.
The rule about the privity of contract and the giving of consideration was considered in the common law to be absolutely necessary. But in insurance contracts, a party would take out an insurance policy, which not only covers that party, let’s say the builder of a construction site, but also that builder’s subcontractors, servants and agents. Now the question is, those people can’t come directly to the Court, because they don’t have standing. They are not privy to the contract, they haven’t given any consideration to the other party, that is, the insurance company. So, here was an expectation built up in the insurance industry, which is contrary to the general rule that had been established in the society as a whole. How do you resolve this? The Court then resolved the problem by establishing an exception in the case of that industry, because in that industry, the expectations were different.
And they gave expression to that industry’s expectations. So there can be ruptures, because two differently evolved rules clash. And then of course, you have the other situations where, because of the rapid changes in social and economic and technological conditions, there would not be a rule, an evolved rule or an established precedent, that would clearly answer the issue at hand that has arisen.
It happened in contract law, where, you know, letter writing was replaced by the telegraph and the telegraph was replaced by the telephones and, and the telephones by electronic communication. So when does the contract take place? The courts had to evolve the law, develop the law, to meet this new situation. So that’s another instance in which the role of a judge comes into play. Now, of course, sometimes it’s not enough. The pace of the evolution of the common law through the process of litigation is actually quite slow. Then you need unique legislative solutions.
So now to sort of take a leap from here. There are Hayek’s contemporaries, like Friedman, and others from the Chicago School. I think during the same time that Hayek is writing his Constitution of Liberty, there’s a revolution happening in the Chicago school, with the law and economics thought emerging very prominently.
Do you see any similarities and differences between the two theoretical approaches, that is, between the evolutionary school and the law and economics school because they reach very similar normative conclusions? Richard Posner very famously argued that common law was efficient. That proposition was more grounded in economic logic. But that’s also a claim that Hayek made: That by enforcing the reasonably held expectations of parties over the years, this body of law that has emerged, which we call common law, is more suited over, and more efficient than legislation.
Yeah, I think there is definitely a similarity. Ronald Coase’s work in relation to damage caused by pollution, and those kinds of things, do actually point to the efficiency of the common law thesis. But, of course, he himself didn’t want to go into that broader area of theorizing.
Whereas what Posner did, was to look at not only at the efficiency of rules, but also how the rule came about, and even beyond. Now, law and economics is basically a transaction costs analysis. It takes particular, specific rules and laws, looks at it and evaluates whether that is efficient or not, from the point of view of transaction costs. It has a very profound connection to evolutionary theory of law because it determines what law can do to increase or decrease transaction costs. And determine what transactions will actually take place. So it’s basically an analysis that explains how the economy grows. But there are differences [between Evolutionary School & Law and Economics].
Well, the first difference, of course, I think, is that the L&E, apart from people like Posner, concentrated very much on particular rules of law. What evolutionary theories did- and I include the offshoots of evolutionary theory like new institutional economics and public choice theory – What they did was that they used evolutionary insights, to ask the questions: why are the bad rules made? Why are good rules made? What’s the [larger] dynamic that leads to the making of bad rules?
So that, of course, depends on the institutions, what influences the institutions that are more democratic processes. What we talked about the judicial methodology and so forth. So that’s, one big difference in the sense that, in fact, the evolutionary theories go beyond simply what we would consider it to be pure economics, and then they would stretch the economic reasoning to society in general, to what they call the catallaxy.
Catallaxy is all the sorts of decisions, choices that people make in society, that is not necessarily recognized as an economic transaction. So in the broad sense, the evolution that we’re talking and thinking about is what is needed by economic progress. And they, particularly the Austrian School of Economics, thought that the L&E people by concentrating on just the transaction costs aspect of the law, have missed the underlying basic rules of the game, so to speak.
So, their opposition is that instead of looking at particular rules and trying to work out what is the efficient outcome, and asking the courts to play a role in determining what the efficient rule should be, which they say is not possible, the Austrians argue that the best way to ensure economic progress and prosperity is to maintain stable property rules and liability rules. It’s a debate that I think in some respects has gone array, because I think people like Calabresi looked at property rules and liability rules, quite specifically and generally the principles behind them. So some of the accusations that Austrians make to me seem a little bit over the top. But the point is that in economics, I guess you need both sides. You need institutional economics, economists to evaluate what’s wrong with our institutions? What’s wrong with the political processes? How do we make our collective choices? What do we do to make genuine collective elective choices in the democracy the way it is ordered at the moment? So I think both branches actually contribute to the understanding of market economies.
So if I understand you correctly, sir. The emphasis of the Austrians or the evolutionary School is on coordination, whereas the emphasis of the neoclassical approach or the Law and economics approach is perhaps on optimality. Right? Is that broadly correct?
I think, yes. Yeah, I mean, that’s what Pareto optimality is all about. What is the most efficient rule? So that is the reason why I think that it is important to have both sides, it’s important to consider particular rules and what is the optimal solution? What is the rule in which both sides can win or one side can win without the other side actually losing? In practice, the Kaldor Hicks approach is what is used in public policy. So yes, I think property rights are important, property rights have to be protected. And, that aspect that Austrians emphasize is important. But economic analysis about efficiency analysis also is important. And, optimality analysis is a pragmatic approach.
The Constitution of Liberty, first edition 1960.
So my next question is: empirically speaking, and there have been studies by some legal scholars on this, the effect of evolutionary school has been limited, both in the academic literature of law and also judicial application. Why do you think that is? Is it because perhaps the evolutionary school is understood to have some descriptive power, but not necessarily analytical power?
Prof Suri Ratnapala
I think we need to test the underlying premises of the two questions that you posed. One is, yes, we have to admit that in very few law schools, do they teach evolutionary approaches to jurisprudence. I retired a few years ago, and I still teach from time to time and but I confine myself, mostly to research as an emeritus. But in the 30 years that I was teaching jurisprudence in Australia, I was the only person who was offering a course that included evolutionary ideas, I was the only person who even mentioned Hayek or Hume or any of those people. That’s in Australia and in New Zealand – there was no one else. And I don’t know whether there’s anyone, now that I have retired, who teaches that subdiscipline.
So it’s true. But are law schools that do teach this field. I think George Mason University’s law school is one, maybe I think Chicago does have some offerings in that direction. And then NYU, probably also has, but not many. At postgraduate level, there are research programs and so forth. But when we think about evolutionary approaches to understanding law, we have to understand that a lot is happening not in the law schools, but in schools of economics, mainly in political economy and in political science. Because there is a huge amount of academic literature coming out of graduate schools, in Europe, in the United States and in Britain. So there’s a lot being done, lots being advanced, particularly, say in game theory where there’s a lot of evolutionary thinking going on, there’s also evolutionary computation. In many fields, such as emergent complexity, groundbreaking work is being done.
But it hasn’t penetrated Law School jurisprudence. Now, I don’t know the reason why, but I can guess it is, perhaps, that that law teachers feel that it’s not something that is useful for legal practice. And their job is to educate law students to become good lawyers in the first instance, and everything else comes later on.
That may be one reason. And the other reason could be a question of path dependency. If you have not been taught, or introduced to this corpus of knowledge, then you’re not going to teach it to your students. And I think that situation is very much present in law schools. So, I was surprised when you (Parv) approached me to talk about this subject. And I was pleasantly surprised.
But let’s get to the other aspect of your question. Why isn’t it being applied or used in the judiciary? Now, well, that may be the case in civil law jurisdictions, but in the common law, what are the judges actually doing? The judges are playing a role in the spontaneous order of common law development.
You ask any judge, are you making law? Or are you discovering the law and applying the law to the dispute before? You know the answer is: oh, no, I have no authority to make law. Whatever Herbert Hart might tell me, if the law is clear, I have to apply it. And when is the law clear? When the parliament has spoken clearly or if there are judicial precedents, I got to apply them. Otherwise, I’m not doing my duty. People will lose confidence in the institution of the judiciary, and the whole system will collapse. So, that is what they’re actually doing, though they may not ever have heard of Hayek, they may never have heard of Hume or Hale, although they should know Matthew Hale because he’s a legal historian. But when they’re doing their job properly, they’re behaving in the manner of a Hayekian judge. You know, Ronald Dworkin came close to this when he talked about Hercules and the ideal judge. If you don’t have rules, you derive a principle from the non-recanted established rules. Dworkin comes very close to what Hayek is saying. That’s the judge’s role. Judges are practicing evolutionary methodology, even though they don’t know that they’re doing it.
It’s not a conscious application of Hayek’s theory. But it’s implicit in their judgments, that is what you are suggesting. So what is the relevance of evolutionary law in this era of pervasive legislation? You mentioned that the common law saw the evolutionary school and the insights of evolutionary school being applied in adjudication. But that was before legislation was in vogue. Now would it be a stretch to say that because legislation has started providing rights, that were not previously being envisioned, that may have perhaps rendered that thought process (the evolutionary thought process) or that approach redundant? Or do you see that there is a way that it (the evolutionary method) can possibly subsume parliamentary lawmaking within it?
Prof Suri Ratnapala
I think what’s happening is that legislation naturally had to play a bigger role, as the complexity of society increased. But I don’t know whether you have read a book called Simple Rules for a Complex Order by Richard Epstein, a Chicago academic. He argues in this book, a very fascinating book, and this argument Hayek himself made, complexity does not arise by the legislature writing down complex laws. Complexity arises by the result of the freedom of people to pursue their activities, pursue their life ends and pursue their ambitions within a set of simple rules. Complex orders are created as a result of this interaction of free agents, whose autonomy increases with the generality principle of the law. So, Epstein argues that there are seven rules, simple rules, that take care of pretty much every problem that the legal system has to face. I think he oversimplifies the thesis a little bit too much. But he basically talks about the rule of contract, the rule of liability, the rule of tort, and the other basic principles such as unjust enrichment. And he includes within those the rule of take and pay. For example, if there’s one source of water for a community that finds themselves without water, and that source of water is owned by one person then that principle: take and pay will kick in. So you take your share, but the owner should be compensated. And so he comes up with seven rules, which I can’t recall right on top of my head but should have. Anyhow, the problem, however, as Hayek explains very well in Law, Legislation and Liberty is the misconceiving of the role of legislation. The book mounts a case for the generality principle in the legal system, the rule of law in the classical sense, the predominance of law, in the sense of normative rules, that are capable of guiding conduct. But law has now taken on an extended meaning to include every enactment, whether it is meant to transfer property from you to me or from one community to another in specific rules that are enacted, most of the time by the modern legislature. So Hayek is arguing against this. And he argues that if you have an elected assembly with unlimited power, a vast amount of power, unrestrained by the principle of separation of powers, and unrestrained by the requirement of producing rules of a general nature, you will create problems. And you cannot avoid it, given the omnipotence of parliament that modern constitutional arrangements give. You have to satisfy the electoral demands that are made in the distributive marketplace. You have to satisfy various lobby groups, interest groups, constituencies in order to win the next election.
And this creates this mad scramble, distributional scramble, which distorts the idea of the law. Now, what Hayek does not concentrate very much on is how the legislature actually achieves this. Because it’s not easy for the legislature to make discriminatory laws on the face, what it does is it creates authorities, delegated authorities, with the power to make arbitrary rules and the power to make quasi-judicial decisions. So basically, what happens in the case of quasi-judicial decisions is, if the Tribunal is not properly constrained by principles, what it does is make law for the individual case by the power to decide the individual case unguided by, unfettered by normative principles. And most of those decisions that the tribunals make, and the delegated legislator makes are unreviewable. I mean, administrative law does help, you can go to courts, and to some extent get judicial review. But how many people can afford how many people can in your country afford to go to the courts? If they’re unjustifiably deprived of their rights at that level, then you can do nothing really unless you’re a very, very rich company or some entity like that. So, that is the arbitrariness created by the proliferation of legislation driven by this marketplace of distributional politics.
Now, there is a role for the legislature. Hayek is not arguing for the abandonment altogether of the idea of legislation. The grown law, the evolved law needs rectification. It can get miscarried, or it can get outdated because of rapid changes in society, or the errors of judges. Once a judge makes an error, it’s hard to overturn that. Then the only way you can change the misdirected law without retrospective effect is by legislation. So, there are very important roles for the legislature. And, of course, you know, democracy is important. But what he says is when the legislature enacts a law, it should do so by replacing the grown law, replacing the established law with another generalized principle of law. So, if you want to get rid of the requirement of consideration in contract, don’t give the discretion to the judge, to the court, to determine what is unconscionable and what is not. Just write down a rule that in this kind of cases, you don’t need to give consideration.
And in the cases of accidents and things like that, have a rule of liability, if you want to change the rule of liability do so. If you want strict liability, have a rule of strict liability, but don’t give a tribunal the power to make the law for the specific case, which is what happens often in this kind of administrative situation. Now, I don’t want to reflect on your country in a bad way. But you do remember or would have heard of the License Raj. Now, India was stuck in one place until they brought back the rule of law principle, not discretionary governance, but freedom under law. You know, no country is perfect in that respect. But India did make that change and see what has happened, India is the only country that is not likely to have a recession. So, I think if you go back in, in recent history of India, the reforms that came about from hanging that policy of over-regulating the economy, micromanaging the economy through a license system, and other regulations, brought about the rapid transformation of the Indian economy. And you could say the same thing about China that transitioned from a command-and-control economy. China made some reforms, they selectively did that – they established property rights, contractual rights, stabilized markets and so forth, introduced markets and see what it did to that country’s economy. But of course, being what its political system is, it won’t allow the relaxation of state controls of the economy to the extent that India can, and India will. So, Hayek’s point was, if you want to, certainly there’s a role for legislation. But when you want to intervene in intergrown law, do it by general principles, rules rather than by ad hoc projections of authority or the grant of arbitrary discretions.
Right, so sir my last question to you, as the conversation comes to an end. What are you reading these days? What are you working on, these days? Do you get the time to watch any movies, any recent movies or TV shows that you might have watched?
Haha. I should be watching more, but I haven’t. Whenever I get the chance, I go back to the classics. But I really admire most Satyajit Ray. And I’ve seen most of his movies, and I never tire of seeing them again. So, I don’t know the new Indian movies, no movie makers, I have seen one or two of them, but then I don’t see too many actually, these days. I do watch a bit of sport. I’m a cricket fan. So I watch as much cricket as possible. So, and right now when Australians are touring India, it’s going to be very exciting. While I try, I don’t, have too much time for that sort of distraction, if we can call it distraction. But I think it’s a worthwhile distraction. I’m actually writing a book and writing a book in defense of the classical notion of the rule of law, and liberal democracy, which I consider to be inextricable from each other. And as you probably know that both those ideas are under serious threat in the world, from within liberal democratic societies and from outside. So I’m writing a fairly lengthy book, I’m on my 11th Chapter, and maybe I’ve got another couple of chapters to go. So that’s my main task, my ambition. So until that’s finished, I think I’ll try to limit my distractions. Anyway, that’s a confession I need to make.
I very much look forward to reading your book, sir. Best wishes for the book. And thank you very much for this conversation. It was absolutely delightful. Thank you so much.
Prof Suri Ratnapala
Thank you very much for giving me the opportunity to express all these ideas and I must say that your questions made me go back and rethink some of the ideas that I’ve been in been working with. So thank you. Thank you so much for that. And wish you all the best for your future careers.
Smriti Jaiswal and Rohan Mehta provided technical and scripting assistance for the interview.
Categories: Jurisprudence, Legal History, Podcast, Political Philosophy, Recommended Reads