In my article, Hayek, the Common Law, and Fluid Drive, I criticize the argument Friedrich Hayek presents for the “law of liberty” in the first volume of Law, Legislation and Liberty. I suggest that Hayek confuses customary law, which he refers to as “grown” law, with modern common law, which he refers to as “judge-made” law, and writes as though these distinct types of law were identical. In Custom, Reason and the Common Law: A Reply to Hasnas, Samuel Morison takes issue with my thesis on two grounds: that I fail to recognize that Hayek is making a normative argument for an ideal liberal social order rather than a historical claim, and that my historical claims are false.
Mr. Morison seems to be arguing that I am confused about whether Hayek is confused. I do not believe that I am. Rather, I suspect that Mr. Morison may himself be a bit confused about both the forces that drove the development of the common law and the nature of customary law. Mr. Morison’s article contains much that is of value. He provides a useful and admirably lucid description of Hayek’s arguments in Law, Legislation and Liberty and an interesting account of the role of custom in the pre-modern common law. Nevertheless, in what follows, I will suggest that Mr. Morison is confused about whether I am confused about Hayek’s confusion.