On November 2, the Classical Liberal Institute and the NYU Journal of Law and Liberty presented the 13th annual Friedrich A. von Hayek Lecture, “Hayek and Textualism,” by Judge William H. Pryor Jr. of the US Court of Appeals for the 11th Circuit. In his lecture, Pryor explored Hayek’s views on law and the role of judges from the perspective of a textualist and considered whether Hayek would have endorsed textualism as a methodology for a federal judge in the United States.

“When Hayek wrote about the errors of socialism and about legal history, he made arguments that would appear to favor textualism, but when he later wrote about an ideal legal system, Hayek made arguments that would appear to reject textualism. Each of those arguments has to be considered in context,” noted Pryor. He argued that whether Hayek would have been a textualist depends on whether Hayek would have viewed a federal judge’s use of the methodology of textualism from a historical context or as a question about an ideal legal system.

“In the real world, judges do not know what would be the socially optimal way to decide every case,” Pryor said. “but they can interpret written law, especially written public law. The early Hayek—if not the later Hayek—would agree with Justice Scalia that in our system, the judicial ‘mindset that asks “what is the most desirable resolution,”’ instead of how the average person would understand the words, ‘frustrates the whole purpose of [our] written [C]onstitution.’ For that reason, Hayek would probably hope that federal judges would interpret written laws in a manner consistent with his early vision of the Rule of Law: as fixed rules announced beforehand that allow a free people to organize their affairs accordingly.”

Posted December 14, 2017