I was re-reading F.A. Hayek’s discussion of the common law in Chapters 4 and 5 of Rules and Order, the first volume of his Law, Legislation and Liberty, and was struck by something I had missed when I first read it four years ago while working on a thesis on common-law constitutionalism. When deciding a case in which the applicable rule of law is not readily supplied by prior judicial decisions (or by a statute), says Hayek,
The judge may err, he may not succeed in discovering what is required by the rationale of the existing order, or he may be misled by his preference for a particular outcome of the case in hand; but all this does not alter the fact that he has a problem to solve for which in most instances there will be only one right solution and that this is a task in which his will or his emotional response has no place. (119-20)
This is strongly reminiscent, of course, of the (more familiar to most legal philosophers) “right answer thesis” defended by Ronald Dworkin, according to which there is a right answer to every legal question, no matter how difficult, which a proper interpretation of the law should yield.
There are minor differences in the qualifications Hayek and Dworkin make for their right-answer claims: the former concedes, it seems, that there are at least some cases in which it does not hold―though he does not say what these are. The latter is willing to allow that the right answer cannot “be proved right to the satisfaction of everyone” (Law’s Empire, ix, emphasis in the original). Still, the two clearly believe in the essential truth of the one right answer claim.
They also come to it in roughly similar ways, arguing that, while the sources of law recognized by legal positivists (statutes and judicial decisions) do not provide all the answers to all legal questions, more general principles do. They differ somewhat on where these general principles come from and how they are to be found. For Dworkin, one gets at them by interpreting and making sense of prior political decisions of the community, notably the constitution, statutes, and judicial decisions. For Hayek, they are rules of conduct observed unconsciously by members of the community, unbeknownst perhaps to its rulers. But the first place to look for them is in prior judicial decisions (and perhaps also in legislation, though Hayek does not say so, because he recognizes that some legislation corrects aberrant judicial decisions). So these positions are not actually all that different.
In addition to the right answer thesis, Hayek and Dworkin draw another common conclusion from their view that the law’s “seamless web” (to use Dworkin’s expression) or “going order” (to use Hayek’s) is complete and ready to supply a sufficiently skilled and conscientious judge with right answers to all his questions. Both claim that judges do not “make law” in the way legal positivists think they do. Dworkin says that while
judges unquestionably ‘make new law’ every time they decide an important case. They announce a rule or principle or qualification or elaboration … that has never been officially declared before,
this can really be said to be law-making “in a trivial sense.” (6) They do not really make new law―they actually say what the law, properly understood, already was. Hayek makes a greater allowance for the judge’s creative role, but he is adamant that
even when in the performance of [his] function [the judge] creates new rules, he is not a creator of a new order but a servant endeavouring to maintain and improve the functioning of an existing order. (119)
And there, I suspect, is the key to this at first sight unlikely unison between the classical liberal Hayek and the New Dealer Dworkin. They are both trying very hard to legitimize the judges’ work, because they mistrust legislatures. They do so for opposite reasons: Hayek thinks they are over-eager to ride roughshod over the economic liberty and property rights of people; Dworkin, that they are likely not to respect individual rights, the chief of which is equality (not liberty). Their legal utopias are very different: Hayek’s ideal law a morally neutral framework in which each person is free to pursue his own ends, and in which the state’s values have no place at all; Dworkin’s is a legal system thoroughly permeated by a single, coherent set of values. But the upshot is the same. Legislatures are likely to impede the attainment of utopia. Judges, on the contrary, hold the values that can bring it about. (Of course Dworkin and Hayek can’t be both right about this, and perhaps neither of them is, but each thinks that he is.) So both idealized the judges’ law, and join in an almost indistinguishable common law romanticism.