Murray N. Rothbard vs. the Philosophers - Ludwig von Mises Institute

MURRAY N. ROTHBARD VS. THE PHILOSOPHERS: UNPUBLISHED WRITINGS
36 ON HAYEK, MISES, STRAUSS, AND POLYANI
The fact that all law arising out of the necessity
to articulate rules of conduct will of necessity possess
some desirable properties not necessarily
possessed by the commands of a legislator does
not mean that in other respects such law may not
develop in very undesirable directions, and that
when this happens correction by deliberate legislation
may not be the only practicable way out.
For a variety of reasons the spontaneous process
of growth may lead into an impasse from which it
cannot extricate itself by its own forces or which
it will at least not correct quickly enough. . . . But
such occasions when it is recognized that some
hereto accepted rules are unjust in the light of
more general principles of justice may well
require the revision not only of single rules but
whole sections of the established system of case
law. 64
Therefore, even if reason does not have a planning and
creative role in the field of the establishment of institutions,
it is able and indeed has to play a corrective role. Covell
underlines the fact that Hayek is not really barrenly
anchored to tradition; rather he recognizes the fact that, “a
system of predominantly judge-made law—such as English
law—always stood in need of correction and amendment
through an institutional procedure of statutory legislation.”
65
Moreover, it is perhaps worth noting that the concept of
evolution is not completely foreign to Rothbardian ideas,
even if it is not one of his characteristic lines of thought. In
For a New Liberty, Rothbard makes reference to the development
of the common law when he considers the possibility
of a libertarian legal code. In doing so, Rothbard uses the
same theoretical instruments as Bruno Leoni, who, as Raimondo
Cubeddu notes, assimilates the rule of law to “the
64 Hayek, Law, Legislation, and Liberty, vol. 1, pp. 88–89
65 Covell, The Defense of Natural Law, p. 132.