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Aquinas and Hayek on the Limits of Law: a Convergence of David Vandrunen Westminster Theological Ethical Traditions Seminary in California

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Aquinas and Hayek on the Limits of Law: a Convergence of David Vandrunen Westminster Theological Ethical Traditions Seminary in California Journal of Markets & Morality Volume 5, Number 2 (Fall 2002): 315–337 Copyright © 2002 Aquinas and Hayek on the Limits of Law: A Convergence of David VanDrunen Westminster Theological Ethical Traditions Seminary in California The ethical and legal thought of Thomas Aquinas and F. A. Hayek emerged out of distinct philosophical traditions. Aquinas, following the Aristotelian tradition, emphasized the inexact character of ethics and hence the mutability of law due to the contingency of particular circumstances. Hayek, relying on Kant, advo- cated a view of law as universal and general rules of conduct not intended to achieve particular, substantive social goals. Despite these differences in philo- sophical orientation, the legal theories of Aquinas and Hayek converge in their mutual recognition of the limits of law and legislation. Both believed that the legislator’s ability to address and solve social problems through the statutory enactment of rules is severely limited. In light of these limits, both Aquinas and Hayek appealed to custom as an effective source of law and thus as an alterna- tive to legislation. Surely one of the most remarkable developments in Anglo-American law in the twentieth century was the burgeoning of legislative statutes and adminis- trative regulations and the corresponding decline of the prominence of the common law. Legal scholars have documented and pondered this history. As one observer, Ellen Ash Peters, has noted, at the beginning of the past century, statutes were to be found “here and there” and common law cases constituted the principal, if not exclusive, source of law. Peters, writing in the early 1980s, estimated that a “scant” ten percent of the suits coming before her bench on the Supreme Court of Connecticut were pure common law cases, and she concluded that there had been a virtual 180-degree turn in the relationship between common law and statutes during the century.1 When one considers 315 Aquinas and Hayek on the Limits of Law: A Convergence David VanDrunen of Ethical Traditions the confidence of the verdict of Sir William Blackstone just two centuries achieve and what other forms of law-generation, particularly the free develop- before, that the common law was “the first ground and chief cornerstone of ment of custom, can achieve. In unfolding this perhaps surprising conver- the laws of England,”2 especially in light of the influence of Blackstone upon gence of the thought of Aquinas and Hayek, one also finds, I believe, an inter- the training of lawyers through the nineteenth century, this development in the esting as well as compelling convergence of the Aristotelian and Kantian century just past is all the more striking. To be sure, a number of scholars in ethical traditions, in the interests of the development of a rational, moral, legal recent years have recognized what a significant mutation has occurred in system. In this article, I attempt to trace this divergence and convergence of Anglo-American law. Some have wrestled with the negative effects of the these ethical traditions in Aquinas and Hayek as well as to suggest its rele- new predominance of statutes and sought in one aspect or another of the com- vance for the current state of American law. mon law tradition a way to see through these new challenges and bolster the integrity of the legal system.3 Nevertheless, from another vantage point, the The Legal-Ethical Traditions reaction to twentieth-century developments has been quite muted. Statutes are generally assumed to be the new “cornerstone” of our law, and any interest in of Aristotle and Kant other ways of legal ordering tends to be confined to the gaps and margins. The First, I call attention to the differences between the Aristotelian and Kantian chief questions usually revolve around the content of the laws to be created, traditions on the subjects of ethics and law. These differences are not subtle, not whether the enterprise upon which we have embarked—that of mass pro- and given the fact that Aristotle and Kant are undoubtedly two of the most duction of written laws—is a wise course. influential moral thinkers in Western history, many of these observations have In this article, I call attention to two perspectives relevant to the course of been discussed by other scholars. The present treatment is, of course, not com- modern law, those of Thomas Aquinas and F. A. Hayek.4 Though both thinkers prehensive. It focuses chiefly upon the divergent perspectives of Aristotle and offer reasons to question the prevailing confidence in law-making, there are Kant on the extent to which law and morality are universal and necessary, the numerous reasons to be skeptical about the prospects of such an attempt to role of empirical considerations in ethical and legal reasoning, and the role of group the thought of Aquinas and Hayek together, especially on the subject of experience in the moral and legal enterprises. Each of these points is inti- law. Many of the differences between the thirteenth-century monk and the mately related to the overarching matter of the contingent (or noncontingent) twentieth-century Nobel prize-winning economist are obvious and revolve nature of ethics and law. precisely around the wide disparity of their cultural and intellectual contexts. To begin with Aristotle, one notes his distinctive approach immediately at One sought the metaphysical and theological foundations of law; the other the beginning of his best-known treatment of the moral life, the Nicomachean defended a version of classical liberalism, a creed meant to flourish among Ethics. From the outset, he defines the study of ethics as an inexact science. adherents subscribing to multiple creeds. As philosophical ethicists of law, He explains that one must gauge expectations of the results of one’s study Aquinas undoubtedly owed his greatest debt to Aristotle, and Hayek appealed according to the nature of the study matter. Given the nature of the study of to many of the key insights of Immanuel Kant. Not only is there wide diver- the moral and the just, one must be content with a “rough outline” of the truth gence between the ethical traditions of Aristotle and Kant, as I consider ongo- and with “broad conclusions.”6 About details, one cannot be precise.7 ing, but Aquinas’s Aristotelianism is a Christianized version of the pagan Furthermore, Aristotle claims, the inexactness of the study matter implies that philosopher’s thought while Hayek’s Kantianism is an agnosticized version of ethical knowledge is not gained all at once, but that it takes time to develop a the Lutheran philosopher’s thought. Indeed, in many ways, Aquinas and Hayek full picture of what is right and wrong.8 The consequences of this for law are lived in different worlds. Scholars have capitalized on their differences to significant: One ought not to view laws in their particularity as universal or drive a wedge between their jurisprudential theories5 and, in some ways, this necessary but as contingent and changeable. Aristotle, while acknowledging can prompt no argument. the existence of a natural (and hence universal) justice, cautions that the rules However, the legal thought of Aquinas and Hayek, in fact, converges in under which justice is administered in this world are constantly being modi- very significant ways on the matter of the limits of law and law-making. Both, fied, so that it becomes very difficult to determine which rules of justice are from their respective standpoints, call attention to what legislation cannot natural and which are legal or conventional.9 Laws, says Aristotle, can do no 316 317 Aquinas and Hayek on the Limits of Law: A Convergence David VanDrunen of Ethical Traditions the confidence of the verdict of Sir William Blackstone just two centuries achieve and what other forms of law-generation, particularly the free develop- before, that the common law was “the first ground and chief cornerstone of ment of custom, can achieve. In unfolding this perhaps surprising conver- the laws of England,”2 especially in light of the influence of Blackstone upon gence of the thought of Aquinas and Hayek, one also finds, I believe, an inter- the training of lawyers through the nineteenth century, this development in the esting as well as compelling convergence of the Aristotelian and Kantian century just past is all the more striking. To be sure, a number of scholars in ethical traditions, in the interests of the development of a rational, moral, legal recent years have recognized what a significant mutation has occurred in system. In this article, I attempt to trace this divergence and convergence of Anglo-American law. Some have wrestled with the negative effects of the these ethical traditions in Aquinas and Hayek as well as to suggest its rele- new predominance of statutes and sought in one aspect or another of the com- vance for the current state of American law. mon law tradition a way to see through these new challenges and bolster the integrity of the legal system.3 Nevertheless, from another vantage point, the The Legal-Ethical Traditions reaction to twentieth-century developments has been quite muted. Statutes are generally assumed to be the new “cornerstone” of our law, and any interest in of Aristotle and Kant other ways of legal ordering tends to be confined to the gaps and margins. The First, I call attention to the differences between the Aristotelian and Kantian chief questions usually revolve around the content of the laws to be created, traditions on the subjects of ethics and law. These differences are not subtle, not whether the enterprise upon which we have embarked—that of mass pro- and given the fact that Aristotle and Kant are undoubtedly two of the most duction of written laws—is a wise course.
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