Notes Spontaneous Order PDF

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Lectures in Spontaneous Order...

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Spontaneous Order (liberalism) vs. State central planning (socialism): The great debate Liberalism:  

philosophical doctrine of liberty does not involve the state running society from the top down, rather things are left to spontaneous order (left to develop on their own). Idea is that government should leave people alone and let it be and have them create their own order. Leave each person to pursue their own life as long as they don't violate others rights

1. Spontaneous order and prosperity (Adam Smith- the wealth of nations)    

the idea of spontaneous order and the economy, the idea is an economy emerging as if it is being guided by an invisible hand the observation was that if you leave the economy alone (laissez-faire), a very good economy emerges as if it was directed by an “invisible hand” this laissez-faire economy can be compared to state central planning state central planning (aka the political method):  the idea at the heart of this idea, the government creates a plan and begins to direct the affairs of the nation into producing the items in which the government feels it needs to produce  difference between socialism and liberalism is the substantive program they offer, socialism relies in its heart on state central planning

2. Spontaneous order and freedom (FA Hayek, M Friedman)   

in a 1944 Hayek’s book “the road to serfdom” is a warning to the future saying beware of where the economy is going to go because you will lose your freedom Hayek observes that where there is this invisible hand in the economy, you have free societiesthere is a relationship between a spontaneously ordered society and free societies Hayek observes, where there are free market economies there are no totalitarian states (no link to each other). However, where there is rigorous reliance on state central planning for the economy, there in turn are no free societies

3. Robert Heilbroner’s concession 

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in 1978 in “Descent” he writes: “socialism must depend on its economic direction on some form of planning, the factories and stores and farms and shops of a socialist socioeconomic formation must be coordinated, and this coordination must entail obedience to a central plan”. 1989, New yorker, He writes: “less than 75 years after it officially began, the contest between capitalism and socialism is over. Capitalism has won. Capitalism organizes the material affairs of human kind more satisfactorily than socialism.” 1992. “Capitalism has been an unmistakable a success as socialism has been a failure. Here is the part thats hard to swallow. it has been the Friedmans, Hayeks and Von Miseses who have maintained that capitalism would flourish and that socialism would develop incurable ailments. All three have regarded capitalism as the ‘natural’ system of free people; all have maintained that left to its own devices capitalism would achieve material growth more successfully than any other system. From my samplings i draw the following discomforting generalization: The farther

to the right one looks, the more prescient has been the historical foresight; the farther to the left, the less so” Common Law as Spontaneous Order, Statute law as State central planning (Bruno Leoni)  

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(freedom and the law) jumps this idea of spontaneous order from economic theory to legal theory Leoni observes the free market with no central plan made up of thousands of people, each seeking their own economic interests but that invisible hand takes place and they create through their activity a good working economy Leoni then looks at judge made law (common law), a legal system in which each litigant pursues their own issues before these common law judges, he says: “though its not centrally planned, over thousands of cases, over years and decades and centuries, a body of law emerges spontaneously” - it looks like a spontaneously ordered law. he goes over to statute law and says the legislation looks more like state central planning and that common law appears to be spontaneously ordered law

Key considerations/implications: 1. If the market economy is better than the state planned economy, then it might also be true that the body of law emerges spontaneously from judges might be better law over time than law that emerges from politicians through statutes (legislation) ? 2. if the spontaneously ordered free market correlates better with the free society than maybe a spontaneously ordered legal system (w/ judge made law- common law) is more consistent with freedom over time than statute law? 3. maybe it is also true with private law, where the bulk of the law is private law, it appears that these societies are largely free societies whereas on the other hand, totalitarian states have legal systems that have a higher reliance on public law 4. Public law is on the rise, what if anything is the long-term implications of this? Torts Negligence  

carelessly causing injury to the plaintiff plaintiff has the burden of proof on a balance of probabilities

Wakelin V London and SW railway co. (1886): 

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Wakelin leaves his house and is not seen again until his body is found on the railroad tracks near a railway crossing. W’s estate brings an action against London and the SW railway CO for negligence. The issue in the case is was the death of W caused by the negligence of the defendants. In deciding this case the HOL sets out a general rule; that the burden of proof in a negligence case like this is on the plaintiff who must prove that some act or omission by the defendant was negligent and caused the damage. The House of Lords says there’s no evidence as to what happened but what is the evidence that the defendant’s negligence caused the death.

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if the plaintiff fails to prove one of them, the chain is broken. All of the elements must be proven. Books for tort law: “tort law”- L. Klar , “Canadian tort law”- A.M Linden, “Fleming’s the law of tort”

1. Standard of Care • Did the defendant breach the standard of care • Vaughn v Menlove 1837: 

Justice Tindal rules that the law will decide it on an objective test being the reasonable person, it is not based on the individual defendants own subjective views and judgement as to what is reasonable or unreasonable. If it was left to the subjective judgement of each defendant, “that would leave so vague a line as to afford no rule at all the degrees of judgment belonging to each individual to be infinitely various”

• Uses the reasonable person test to determine the standard of care • a reasonable person does not take unreasonable risks • if the risks taken are unreasonable, it falls below the standard of care of a reasonable person and it is a breach of the standard of care • FE (foreseeability of the event) + PL (probability of the loss) + MI (magnitude of the injury) - object (object of the action, what was trying to be achieved) - CRM (cost of the remedial measure; to make the situation safe how much would it have cost) = risk 2. Duty of Care • Did the defendant owe the plaintiff a duty of care? • Le lievre v. Gould 1893: 

“A man is as entitled to be as negligence as he pleases to the whole world, if he owes no duty to them”

• Donoghue v. Stevenson 1932: 

House of Lords., Lord Atkin: “You must take reasonable care to avoid acts or omissions which you can reasonable see or likely to injure your neighbor” , “… neighbors are persons who are so closely and directly affected by my act that I ought to reasonable have them in contemplation as being so affected when I am directing my mind to the act or omissions which are called into question”

• a) Was the actions of the defendant reasonably foreseeable? o

liability in negligence will not succeed if you do not pass this

• b) Was there proximity between parties? o

assumed in commercial relationships

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ex. Drivers owe a duty to other drivers on the road

• c) Are there any policy considerations? are there any bylaws sanctioning certain acts (Ex. is there a bylaw saying if you need a fence around your pool)? 3. Causation • two branches of causation: legal (proximate cause) + factual. • key question to proving causation of fact: did the negligent act of the defendant make a difference to the damage? (the but-for-test). • Kaufmann v TTC,1960, SCC: 

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There’s 2 young ppl who get into a fight on the TTC escalator with another man, the 2 young man fall back onto a man and the man falls back and there is a domino effect until a lady (Kaufmann) suffers severe injuries. The issue in the case: was the TTC negligent for not having a proper hand rail on the sides of the escalator. The SCC says TTC no liability in negligence. One of the focuses is causation. The court said, “there was a total absence of evidence that anyone ever reached out and tried to grab the handrail during the fight nor was there evidence that the casual relation and the injury must be proven to be related”

Proximate cause: 

the injury the plaintiff suffers must not be too remote from the defendant’s act. o intervening events

4. Damage • You must have damage or else it is not actionable • Some torts that do not require damage to be actionable, but negligence does. • Common damage: physical injury, emotional injury, property damage, chattel damage, etc. Occupiers liability Act 

special types of negligence can occur in places like malls, shopping centers, homes....