Boudreaux on Hayek
By David Henderson
One of the distinctions that Boudreaux and Hayek both stress is the one between law and legislation. Boudreaux illustrates this with three nice examples, two of law and one of legislation. On the law side, he tells a story that anyone who has ever parked at a shopping mall is probably familiar with. You are looking for a parking spot and see a car pulling out, so you turn on your blinker to signal that you are in line for that spot. Another driver, seeing that you are waiting, drives on to find a different parking spot. “In this everyday example,” he writes, “you and the other driver are governed by law.” You are widely recognized as having established for yourself “a temporary property right to that space.” But that right is not written down anywhere and did not come about because of some committee. Rather, it “emerged, unplanned and unintended, in the course of human interactions.”
His second example of law is the lex mercatoria, or the “Law Merchant.” This evolved among merchants as international trade developed. When conflicts arose–usually because of differences in expectations–courts, staffed by merchants themselves, ruled on the conflicts. Moreover, no government enforced the courts’ rulings. Concern about one’s reputation was the “enforcer.”
An example of legislation that Boudreaux gives is a provision in Massachusetts’ criminal code that makes it a “criminal offense for two unmarried adults to have consensual sex with each other.” Boudreaux writes that no police officer would arrest people who violated this legislation. Moreover, he writes, if some out-of-touch policeman and court did attempt to punish an unmarried couple for their “crime,” the public “would regard the police officer and the court–not the couple–as having broken the law.”
On his blog, Café Hayek, Boudreaux often emphasizes the distinction between law and legislation. The above examples crystallize the distinction well. (italics in original)
This is excerpted from my recently published review of Don Boudreaux’s The Essential Hayek. Read the whole thing here. (Scroll down.)
I do have one criticism, not of Boudreaux’s exposition, which is spot on, but of what he exposits: Hayek’s view of the business cycle.