This post by Randy Barnett contains a few lines that hint at a problem I’ve long had with the concept of “spontaneous order,” or rather, with many of the people who use that concept regularly. “The problem is a contradiction built into the concept of a ‘Restatement,’” he writes. “It is supposed to be ‘restating’ (and systematizing) the law as it has evolved in the common law system—which presupposes that the evolutionary common law process is an important source of wisdom. Yet once promulgated, a Restatement tends to freeze that common law evolution in amber at the moment of its creation.” The problem, according to Barnett, is that the system’s genius is its dynamism, and a restatement is going to interrupt that dynamism. In a similar vein, some weeks ago, Prof. Bell complained about standardized spelling rules, because spelling itself evolves over time, and teaching kids that spelling one way is “correct” interrupts the dynamic process of spelling evolution.
The problem, as I see it, is that you’ve got to pour the sidewalks sometime.
What I mean is this: my college economics professor, Gary Wolfram, explained to us that the concept of spontaneous order teaches us that we should wait to see the order that arises from people’s choices before we make policy, rather than trying to impose policy on people from the top down, on the basis of pure theory. He used to explain it by reference to sidewalks: suppose you want to lay out a college campus, and you want to put in sidewalks that the students will use to go from building to building. The best way, he said, is to wait a few years to see what pathways the students wear into the lawn, and put the sidewalks there, because those are the pathways the students use. Otherwise you’ll have sidewalks, and then you’ll have these pathways across the lawn where the students actually walk.
But you have to pour out the cement and make those sidewalks at some point. And at any time that you finally decide to pour the sidewalks, there’s Randy Barnett saying “wait a second, this is a dynamic process, and if you pour cement here, you’re freezing that dynamic process in place, and interfering with spontaneous order.” You see my point. Barnett’s complaint about the Restatement could be made, with equal validity, of any case that decides any issue in, say, contract law. The judge could say “I’m supposed to be ‘restating’ the law on this issue and applying it to the facts before me, but once I do so, a case tends to freeze the common law evolution in amber.”
There are two answers to this judge: first, the case has to be decided sometime. And second, a case is supposed to be a frozen, fixed product—and then the next case works off the basis of it, and the next off of that, and so forth—the dynamism continues. Likewise the Restatement project. There’s a first restatement, then a second, then a third. The process of evolution still goes on. (Strange, then, that Barnett would go on to say that “If we are going to have a Restatement at all—and we are—I would keep the Restatement Second around for a long time.” I would think you would want to see more of them, often.)
I’m not defending the Restatements. I think they’re getting somewhat superfluous in the Lexis/Westlaw age, and they have done serious mischief. And I’m not saying spontaneous order is bunk. I’m saying there has to be a more serious objection to pouring the sidewalks than merely to point to spontaneous order and invoke the importance of evolution. Yes, evolution is vital, but it works off of frozen instantiations, and even if it didn’t, we do.
Update: Prof. Barnett has a pretty solid answer as far as the Restatements are concerned:
while legal rules should be ‘fixed,’ judges should consider it their responsibility to repair broken sidewalks they themselves poured, remove unused sidewalks, and lay new ones. The Restatement movement seems to have gotten judges out of this mind set. ‘That’s not my job, let the ALI decide’ seems to be a judicial attitude inspired by the Restatements.... Responsibility for changing the judge-poured sidewalks has shifted from the legislatures to the ALI...and away from judges themselves....
Good point. My wider concerns about “freezing in amber,” however, remain.