Freedom, Society, and State - Ludwig von Mises Institute

ficiency of the common law as the sole method of lawrna
kin g . A c cordin g toth i.s ·c r i tic ism, the ve r yina b i 1fty
of the judge to alter the law is not only the
strength but also the weakness of the common law. "The
development of case law," says Hayek,
is in some respects a sort of one-way street:
when it has already moved a considerable
distance in one direction, it often cannot
ret rae e its s t e p s whensom e impliea t ions 0 f
earlier decisions are seen to be clearly
undesirable.
Fur ther, the gradual development inherent in common
law "may prove to be too slow to bring about the
desirable rapid adaptation of the law to wholly new
circumstances." In such situations, not only is the
judge, as we> have see, unable to alter the law but it
would be undesirable even if he could, for it would be
unjust to apply the new law
to transactions which had taken place when a
different rule was regarded as valid. In
such situations it is desirable that the new
rule should become known before it is enforced;
and this can be effected only by
pro m u I gat in g anew r u I e wh i chi s t 0 be
applied only in the future.
Consequently, concludes Hayek, while the overwhelming
b u I k 0 f I a w 0 ugh t t 0 bethe s pon taneously emerg i ng and
evolving common law, one cannot dispense with positive
legislation entirely. Legislation is required to remedy
the occasional shortcomings of the common law.(23)
This raises a very serious question for the individualist
anarchists for, if they are unable to find
some way around this problem, it would appear that
there would be no alternative to at least occasional
legislation and therefore to some form of government.
Yet, surprisingly, I have been unable to uncover any
·direct attempt by any individualist anarchist to deal
with this question.
However, the wr it i ngs of some non-anarchist authorities
on the common law do place the validity of
t his c r i tic ism i n t 0 que s t ion. Wo r mserac know1e d ge s
that theoretically the principle of stare decisi$
should make the common law static or fixed law that
could be changed only by legislation. But, he contln-
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