Freedom, Society, and State - Ludwig von Mises Institute

is also far greater long run stability.(31)
There is one final procedural problem that must be
dealt with. Assuming that a judge in our previous example
does hand down a decision declaring pollution to
be a viola t i on of proper ty rights, how can the poll uter
be held responsible for actions that were not in violation
of the law when they were performed? This is a
technical problem that would arise only during the occasional
adaptations of the common law to novel situations,
but its importance should not be ignored. There
would appear to be no reason why a situation like this
could not be handled in much the same way that legislation
would handle it: do not hold the individual responsible
for his past actions but enjoin him not to
pollute in the future. Then, if after a stipulated
period of time the pollution had not ceased, he could
be held responsible for his actions and ordered to make
restitution to those he subjected to the pollution,
i.e., the victims. After the injunction against pollution
became incorporated into the law and it became
clear to everyone that pollution constituted an invasion
of property rights, the original proviso would be
meaningless and pollution would then be treated as a
violation of property rights on a par with any other
violation.
The above remarks are not meant as a conclusive
rebuttal to Hayek, but rather one possible avenue by
which the individualist anarchist might respond to the
Hayek ian c r i t i que 0 f the pur e c omm 0 n I a w a pproa c h . At
any rate, the anarchist believes that a system of spontaneously
emerging common law not only has many advantages
over legislation but also that it is the social
c 0 u n t e r par t, 0 r "twin," 0 f the i r I a iss e z fa ire e con om i c
program. "If legislation is replaced by such judgemade
law," argues Rothbard,
fixity and certainty (one of the basic
requirements of the 'rule of law') will
replace the capriciously changing edicts of
statutory legislation. The body of judgemad
e 1awe han g e s ve r y s I ow 1y; fur the r rna r e ,
sin c e j u d i cia Idecis ion s can 0 n I y be rna d e
when parties bring cases before the courts,
and since decisions properly apply only to
the particular case, judge-made law -- in
contrast to legislation -- permits a vast
body of voluntary, freely-adopted rules, bargains,
and arbitrations to proliferate as
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