We often think of “law” and “legislation” as being synonyms, but F.A. Hayek famously argued that there are important differences. If we start with individual habits, or patterns of behavior that have become so commonplace that we act almost without thinking, we can understand much of the daily lives of individuals.
Habits that are shared might be called “customs,” informal rules that might be written down nowhere. These are agreements, in the sense that we all agree that is the way we do things, even though we never actually sat down and signed anything.
A while back I wrote about the Pittsburgh left turn as an example of such a custom. It is important that the habit of waiting for someone to turn left in front of you be “agreed” on, in the sense that the expectation is widely shared — and met — because otherwise it wouldn’t be effective in making traffic move faster. These customs can come to govern behavior, however, precisely because they shape expectations, and violating expectations may be expensive or dangerous.
Those customs, if they consistently lead to useful outcomes, are “laws.” They are discoverable by experience and emerge in the form of traditions. But it is useful to write them down so that they can be enforced more effectively and can be easily learned by new generations. Laws that are written down are rules, commands, and prohibitions we call “legislation.”
The problem is that legislation need not arise from law at all. Legislation is any procedures that a set of political actors use to command citizens or restrict their actions. The idea of a speed limit (although see Germany’s autobahns!) is probably both a law and legislation. A rule that protects a company from the scolding winds of competition just because government actors own stock in that company is legislation, but it violates the obvious law against artificial privileges in capitalism.
The “rule of law,” for Hayek at least, is a situation where all legislation simply codifies and illuminates the law. There may be many laws that are not legislation (some are just “manners,” and needn’t be legislated), but in an ideal rule-of-law system there is no legislation that is not also a law.
The reason this is important is that Hayek was rightly concerned about the conceit common in “experts” and legislators that they know what is best for everyone else.
I often illustrate this with what I call the Hayek Sidewalk Plan. Imagine that a new university has been built, and you are on the committee charged with laying out the sidewalks. What would you do?
You might walk around, look at aerial maps of the campus, and draw lines to try to guess where people will want to walk. Or you might want to have a purely aesthetic conception of the problem, and put the sidewalks in places or in patterns that are pleasing to the eye as you look out the windows of the administration building.
But all of that is legislation. No individual, or small committee of individuals, could possibly have enough information or foresight to be able to know in advance where people are going to want to walk. After all, universities are peopled by broadly diverse groups, with heterogeneous plans and purposes. People are often willing to walk on the sidewalks, if that serves their purpose at that point. But you probably don’t want to build a sidewalk from every doorway to every other doorway on the campus.
What would a law look like, in this setting? No one person, after all, has any effect walking on the grass, and all the different plans and purposes, taken one at a time, contain no information that you can use. But there is a physical manifestation of the aggregation of all these plans and purposes working themselves out over time. I don’t intend to make a path, and neither do you. But if enough of us, over time, find it useful to walk in the same place to accomplish our own idiosyncratic purposes, a visible record of the shared pattern emerges: a muddy path.
So, the law for the Hayek Sidewalk Plan committee will be discoverable if we adjourn for six months or so and then have a drone take some overhead photographs. It is clear now where people, acting as individuals but observable together in the shared result called a muddy path, want the sidewalks to be placed. And the task of the committee is simply to “legislate” by paving the muddy paths.
If we think of the process of discovering law as “looking for the muddy paths,” and legislation as “paving the muddy paths,” we have a simple but quite powerful way of thinking about the rule of law.