Tuesday, February 27, 2007

The negative character of law II.

Friedrich von Hayek likewise emphasized the negative character of law as one of its chief characteristics. This is because law does not command specific actions in the service of specific goals, but rather serves as a framework of boundaries and parameters within which action can take place. "The action, or the act of will, is always a particular, concrete, and individual event, while the common rules which guide it are social, general, and abstract" (Law, Legislation, and Liberty, II, 12). The distinction between command and rule is important here. "A command regularly aims at a particular result or particular foreseen results, and together with the particular circumstances known to him who issues or receives the command will determine a particular action. By contrast, a rule refers to an unknown number of future instances and to the acts of an unknown number of persons, and merely states certain attributes which any such action ought to possess" (LLL, II, 14). Such rules are therefore abstract and negative. "What is meant by the term abstract is expressed in a classical juridical formula that states that the rule must apply to an unknown number of future instances.... Such reference to an unknown number of future instances is closely connected with certain other properties of those rules which have passed through the process of generalization, namely that these rules are almost all negative in the sense that they prohibit rather than enjoin particular kinds of actions, and that they do so in order to protect ascertainable domains within which each individual is free to act as he chooses and that the possession of this character by a particular rule can be ascertained by applying to it a test of generalization or universalization" (LLL, II, 35-36).

Hayek thus shows himself to subscribe to the same basic legal philosophy as Stahl. His view of law corresponds closely with Stahl's, as does his emphasis on tradition and custom, with legislation serving a corrective role. What is interesting in Hayek is the labor he puts into fitting this philosophy into an evolutionary framework while trying to avoid the pitfalls of positivism and utilitarianism. I don't imagine that he has convinced very many proponents of those approaches. Stahl's theistic framework makes much more sense.