This is a guest post by Paul Mueller, a Program Assistant with the MBM Team. Check out his bio here.

Hayek is addressing the movement towards judicial activism or social justice—which is the idea that judges should determine whether to uphold the law based upon particular outcomes they hope to achieve or their own personal values, rather than following the letter and original intent of the law. I think Schwartz’s arguments and examples point to the need for reforming certain laws—not promoting greater judicial activism.

There are a couple problems with judicial activism. First, it substitutes the knowledge and preferences of one person for the choices of an elected body of individuals or the knowledge of previous generations (through historical precedent). In nearly every case this will lead to less knowledge being used, not more.

Second, the arbitrariness of court rulings destroys the stability, predictability, and order of society. If people don’t know how they will be treated in a court room or what the consequences of their behavior are, they will be less likely to take risks or innovate and in other cases they will abuse the system by trying to get away with pushing the boundaries. This arbitrariness also makes it much easier for judges to be bribed—since their personal opinion and good will are more important than the law.

There will be a forthcoming post about the tension between rules and discretion in organizations. I think it is fitting, however, to end with another quote from Hayek:

[When] the elements of…order are intelligent human beings whom we wish to use their individual capacities as successfully as possible in the pursuit of their own ends, the chief requirement for its establishment is that each know which of the circumstances in his environment he can count on…. [This is] the essential condition of individual freedom, and to secure it is the main function of law (Hayek 161).

Hayek, TED