One of the arguments made by Theodore Burczak, in Socialism after Hayek, is that Hayek’s faith in judges’ adherence to the rule of law overlooks the “legal realist” perspective of precedent.
Burczak’s claim is quite persuasive until he adduces some historical evidence that common law reflected agrarian interests prior to the turn of the 19th century. According to Burczak (2006: 65), “judges came to identify with the industrial and merchant classes and began to decide cases in order to promote industrialization and economic growth.”
Burczak, here, it seems to me, mistakes effect for cause.
- Shouldn’t Burczak, a trained and well-read economist, be hyperaware that the new industrial processes burst the bonds of obsolete laws, which fettered economic growth, not vice-versa?
- Or, is this just another case of how empirical arguments, whether pro or anti, sustain the critique capitalism?
Brian A. Pitt
3 responses so far ↓
Dain // November 9, 2009 at 2:17 pm |
Or, is this just another case of how empirical arguments, whether pro or anti, sustain the critique capitalism?
No more than non-empirical arguments do.
In this case it would seem Burczak is unaware of – or disagrees with – the empirical arguments found in, for example, How The West Grew Rich.
K McNeel // November 23, 2009 at 6:22 pm |
This is pretty interesting. There’s been some work on whether legal realism (and other views of judicial decision-making) are adequate models of how judges make decisions. Here’s the link to a paper by Giacomo Ponzetto and Patricio Fernandez, for example: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1116784
Brian Pitt // November 25, 2009 at 8:20 am |
Thanks for the plug KMcNeel!