Here's an interesting quote from Hayek's essay, "The Results of Human Action but not of Human Design," from his book, Studies in Philosophy, Politics and Economics:
"...the natural law concept against which modern jurisprudence reacted was the perverted rationalist conception which interpreted the law of nature as the deductive constructions of 'natural reason' rather than as the undesigned outcome of a process of growth in which the test of what is justice was not anybody's arbitrary will but compatibility with a whole system of inherited but partly inarticulated rules" (101).
This does seem like a relatively accurate positive assessment of how law has evolved over time. But it does beg the question, then, of whether or not a centralized attempt to administer justice, which would rely on some understanding of what people will accept as just, would be akin to trying to plan an economy. The idea, in other words, is that if our recognition of justice relies on a partly inarticulated set of internalized rules, and those rules change over time and are sometimes contradictory, then the acceptability of any legal judgment will be in some some sense bound to the circumstances in which that attribution was made, and will necessarily fail to reflect the unanimous will of the people. If that's true, then it would seem almost impossible to determine what would be the proper standard of justice within a society at any given time, and so would be impossible to administer justice "properly" in much the same way as it's impossible to allocate resources "properly" through a centralized method of planning.
To make my case, I'll draw on a number of different quotes which I think paint a better picture of the issue than I might be able to do myself (especially given the "reason as I go" approach that generally characterizes these posts). First, from the beginning of David Schmidtz's book, Elements of Justice:
"I have become a pluralist, but there are many pluralisms. I focus not on concentric "spheres" of local, national, and international justice nor on how different cultures foster different intuitions, but on the variety of contexts we experience every day, calling in turn for principles of desert, reciprocity, equality, and need. I try to some extent to knit these four elements together, showing how they make room for each other and define each other's limits, but not at the cost of twisting them to make them appear to fit together better than they really do. Would a more elegant theory reduce the multiplicity of elements to one?" (4).
I jump over to the beginning of Rawls' Justice as Fairness: A Restatement:
"...I believe that a democratic society is not and cannot be a community, where by a community I mean a body of persons united in affirming the same comprehensive, or partly comprehensive doctrine. The fact of reasonable pluralism which characterizes a society with free institutions makes this impossible. This is the fact of profound and irreconcilable differences in citizens' reasonable comprehensive religious and philosophical conceptions of the world, and in their views of the moral and aesthetic values to be sought in human life" (3).
And with that, I jump back to Schmidtz, a few pages later:
"In effect, there are two ways to agree: We agree on what is correct, or on who has jurisdiction - who gets to decide. Freedom of religion took the latter form; we learned to be liberals in matters of religion, reaching consensus not on what to believe but on who gets to decide. So too with freedom of speech. Isn't it odd that our greatest successes in learning how to live together stem from agreeing on what is correct but from agreeing to let people decide for themselves?" (6).And back to Hayek, this time in his essay, "The Use of Knowledge in Society":
"The peculiar character of the problem of a rational economic order is determined precisely by the fact that the knowledge of the circumstances of which we must make use never exists in concentrated or integrated form, but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess" (519).
"In ordinary language we describe by the word "planning the complex of interrelated decisions about the allocation of our available resources. All economic activity is in this sense planning; and in any society in which many people collaborate, this planning, whoever does it, will in some measure have to be based on knowledge which, in the first instance, is not given to the planner but to somebody else, which somehow will have to be conveyed to the planner. The various ways in which the knowledge on which people base their plans is communicated to them is the crucial problem for any theory explaining the economic process. And the problem of what is the best way of utilizing knowledge initially dispersed among all the people is at least one of the main problems of economic policy--or of designing an efficient economic system" (520).
"Today it is almost heresy to suggest that scientific knowledge is not the sum of all knowledge. But a little reflection will show that there is beyond question a body of very important but unorganized knowledge which cannot possibly be called scientific in the sense of knowledge of general rules: the knowledge of particular circumstances of time and place" (521).
Just like how attributions of justice are contingent on a set of partly inarticulated rules, economic actors make their decisions according to their personal interpretations of circumstances, in light of their own value systems. And as they are inarticulated and often contradictory, they cannot be aggregated to form a "social" standard. Hayek writes:
"...the sort of knowledge with which I have been concerned is knowledge of the kind which by its nature cannot enter into statistics and therefore cannot be conveyed to any central authority in statistical form" (524).
So we've sort of gotten to the point I'm trying to make. Basically, if society's acceptance of certain things as just is, as Hayek says, based on compatibility with an internalized, partly inarticulated set of rules, and if these sets of rules are subject to reasonable pluralism and continuous flux, then it's as impossible to get law perfectly right through central planning as it is to get an economy perfectly right through central planning. But then the question becomes, so what? In looking at the economy, Hayek writes:
"We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders. We must solve it by some form of decentralization" (524).
But is this the right answer for law? That's something I'll have to leave for another day.
Hahahahahahahaha! So this post was written in a sort of "Ah hah!" moment while reading Hayek's "The Results of Human Action but not of Human Design," causing me to jump up from the book and hammer out the above. Turns out that if I had kept reading, I would have discovered Hayek making a nearly identical point in the essay itself. So I'd almost say to forget about this post and go pick up the book.