Hayek and Comparative Constitutional Law

Steven G. Calabresi 

Northwestern University - School of Law

Bradley Silverman 

Columbia Law School
June 18, 2013

Northwestern Law & Econ Research Paper No. 13-23
Northwestern Public Law Research Paper No. 13-23 
Abstract:      
In this paper, we set out to identify and articulate a Hayekian justification for Professor Jeremy Waldron’s proposed “ius gentium,” which he characterizes as an emerging global common law of legal norms, with a particular emphasis on human rights. Drawing on the writings of Friedrich A. Hayek in “Law, Legislation and Liberty,” we will explain how Hayek’s distinction between systems of spontaneous and planned order may apply to what Waldron calls the ius gentium and provides a better theoretical justification for it than that which Waldron puts forward. After reviewing some of the criticisms that can be levied against Waldron’s theory, we explore Hayek’s writings and how they apply to the ius gentium. We also explain why the ius gentium may be said to possess the characteristics that are present for “crowd wisdom,” or savvy and intelligent decision-making by large groups. Finally, we will examine five major criticisms that might be made against reliance on the ius gentium, and we will then attempt to offer some partial arguments in response.

Number of Pages in PDF File: 192

Keywords: United States Constitution, Empirical, Foreign Legal System, Natural Law, Common Law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2281383