The Rule of Law -- Part 18

Hayek’s understanding of the origins of the rule of law.

In this essay we’ll explore Friedrich Hayek’s understanding of the origins of the rule of law in his book The Constitution of Liberty.

Hayek begins his discussion of the origins of the rule of law with this quote from the seventeenth century English philosopher John Locke:

The end of the law is, not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others; which cannot be where there is no law: and is not, as we are told, a liberty for every man to do what he lists. (For who could be free when every other man's humour might domineer over him?) But a liberty to dispose, and order freely as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be the subject of the arbitrary will of another, but freely follow his own.

Hayek then writes:

It has often been said that the ancients did not know liberty in the sense of individual liberty. This is true of many places and periods even in ancient Greece, but certainly not of Athens at the time of its greatness (or of late republican Rome); it may be true of the degenerate democracy of Plato's time, but surely not of those Athenians to whom Pericles said that “the freedom which we enjoy in our government extends also to our ordinary life [where], far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes” and whose soldiers, at the moment of supreme danger during the Sicilian expedition, were reminded by their general that, above all, they were fighting for a country in which they had “unfettered discretion in it to all to live as they pleased.” What were the main characteristics of that freedom of the “freest of free countries,” as Nicias called Athens on the same occasion, as seen both by the Greeks themselves and by Englishmen of the later Tudor and Stuart times? The answer is suggested by a word which the Elizabethans borrowed from the Greeks but which has since gone out of use. “Isonomia” was imported into England from Italy at the end of the sixteenth century as a word meaning “equality of laws to all manner of persons”; shortly afterward it was freely used by the translator of Livy in the Englished form “isonomy” to describe a state of equal laws for all and responsibility of the magistrates. It continued in use during the seventeenth century15 until “equality before the law,” “government of law,” or “rule of law” gradually displaced it … The history of the concept in ancient Greece provides an interesting lesson because it probably represents the first instance of a cycle that civilizations seem to repeat. When it first appeared, it described a state which Solon had earlier established in Athens when he gave the people “equal laws for the noble and the base” and thereby gave them “not so much the control of public policy, as the certainty of being governed legally in accordance with known rules.” Isonomy was contrasted with the arbitrary rule of tyrants and became a familiar expression in popular drinking songs celebrating the assassination of one of these tyrants … To Herodotus it is still isonomy rather than democracy which is the “most beautiful of all names of a political order.” Against this background certain famous passages in Aristotle, though he no longer uses the term “isonomia,” appear as a vindication of that traditional ideal. In the Politics he stresses that “it is more proper that the law should govern than any one of the citizens,” that the persons holding supreme power “should be appointed to be only guardians and the servants of the law.”

Hayek then describes the contribution of the Romans to the concept of the rule of law:

In the course of the seventeenth century the influence of Latin writers largely replaced the direct influence of the Greeks. We should therefore take a brief look at the tradition derived from the Roman Republic. The famous Laws of the Twelve Tables, reputedly drawn up in conscious imitation of Solon's laws, form the foundation of its liberty. The first of the public laws in them provides that “no privileges, or statutes, shall be enacted in favour of private persons, to the injury of others contrary to the law common to all citizens, and which individuals, no matter of what rank, have a right to make use of.” Tacitus and, above all, Cicero became the chief authors through whom the classical tradition spread. Cicero indeed became the main authority for modern liberalism, and we owe to him many of the most effective formulations of freedom under the law. To him is due the conception of general rules or leges legum, which govern legislation, the conception that we obey the law in order to be free, and the conception that the judge ought to be merely the mouth through whom the law speaks. No other author shows more clearly that during the classical period of Roman law it was fully understood that there is no conflict between law and freedom and that freedom is dependent upon certain attributes of the law, its generality and certainty, and the restrictions it places on the discretion of authority.

Hayek then describes the rediscovery of the rule of law in England following the fall of the Roman Empire:

[F]or a thousand years, the conception that legislation should serve to protect the freedom of the individual was lost. And when the art of legislation was rediscovered, it was the code of Justinian with its conception of a prince who stood above the law4that served as the model on the Continent … In England, however, the wide influence which the classical authors enjoyed during the reign of Elizabeth helped to prepare the way for a different development. Soon after her death the great struggle between king and Parliament began, from which emerged as a by-product the liberty of the individual. It is significant that the disputes began largely over issues of economic policy very similar to those which we again face today. To the nineteenth-century historian the measures of James I and Charles I which provoked the conflict might have seemed antiquated issues without topical interest. To us the problems caused by the attempts of the kings to set up industrial monopolies have a familiar ring: Charles I even attempted to nationalize the coal industry and was dissuaded from this only by being told that this might cause a rebellion.43 Ever since a court had laid down in the famous Case of Monopolies that the grant of exclusive rights to produce any article was “against the common law and the liberty of the subject,” the demand for equal laws for all citizens became the main weapon of Parliament in its opposition to the king's aims. Englishmen then understood better than they do today that the control of production always means the creation of privilege … It was another kind of economic regulation, however, that occasioned the first great statement of the basic principle. The Petition of Grievances of 1610 was provoked by new regulations issued by the king for building in London and prohibiting the making of starch from wheat. This celebrated plea of the House of Commons states that, among all the traditional rights of British subjects, “there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law, which giveth to the head and the members that which of right belongeth to them, and not by any uncertain and arbitrary form of government … Out of this root has grown the indubitable right of the people of this kingdom, not to be made subject to any punishments that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament.” It was, finally, in the discussion occasioned by the Statute of Monopolies of 1624 that Sir Edward Coke, the great fountain of Whig principles, developed his interpretation of Magna Carta that became one of the cornerstones of the new doctrine. In the second part of his Institutes of the Laws of England, soon to be printed by order of the House of Commons, he not only contended (with reference to the Case of Monopolies) that “if a grant be made to any man to have the sole making of cards, or the sole dealing with any other trade, that grant is against the liberty and freedom of the subject, that before did, or lawfully might have used that trade, and consequently against this Great Charter”; but he went beyond such opposition to the royal prerogative to warn Parliament itself “to leave all causes to be measured by the golden and straight metewand of the law, and not to the uncertain and crooked cord of discretion.” … The great event that became for later generations the symbol of the permanent achievements of the Civil War was the abolition in 1641 of the prerogative courts and especially the Star Chamber which had become, in F. W. Maitland's often quoted words, “a court of politicians enforcing a policy, not a court of judges administering the law.”

Hayek describes how it then came to be understood that a Parliament, as well as a king, could act arbitrarily:

[I]t came to be recognized, as Parliament began to act as arbitrarily as the king, that whether or not an action was arbitrary depended not on the source of the authority but on whether it was in conformity with pre-existing general principles of law. The points most frequently emphasized were that there must be no punishment without a previously existing law providing for it, that all statutes should have only prospective and not retrospective operation, and that the discretion of all magistrates should be strictly circumscribed by law. Throughout, the governing idea was that the law should be king … Gradually, two crucial conceptions emerged as to how these basic ideals should be safeguarded: the idea of a written constitution and the principle of the separation of powers. When in January, 1660, just before the Restoration, a last attempt was made in the “Declaration of Parliament Assembled at Westminster” to state in a formal document the essential principles of a constitution, this striking passage was included: “There being nothing more essential to the freedom of a state, than that the people should be governed by the laws, and that justice be administered by such only as are accountable for mal-administration, it is hereby further declared that all proceedings touching the lives, liberties and estates of all the free people of this commonwealth, shall be according to the laws of the land, and that the Parliament will not meddle with ordinary administration, or the executive part of the law: it being the principal part of this, as it hath been of all former Parliaments, to provide, for the freedom of the people against arbitrariness in government.”

Hayek then focuses his attention on the influence of John Locke:

John Locke's Second Treatise on Civil Government is so outstanding in its lasting effects that we must confine our attention to it … While in his philosophical discussion Locke's concern is with the source which makes power legitimate and with the aim of government in general, the practical problem with which he is concerned is how power, whoever exercises it, can be prevented from becoming arbitrary: “Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where that rule prescribes not: and not to be subject to the inconstant, uncertain, arbitrary will of another man.” It is against the “irregular and uncertain exercise of the power” that the argument is mainly directed: the important point is that “whoever has the legislative or supreme power of any commonwealth is bound to govern by established standing laws promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the forces of the community at home only in the execution of such laws.” Even the legislature has no “absolute arbitrary power,” “cannot assume to itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges,” while the “supreme executor of the law ... has no will, no power, but that of law.” The main practical safeguard against the abuse of authority proposed by him is the separation of powers, which he expounds somewhat less clearly and in a less familiar form than did some of his predecessors. His main concern is how to limit the discretion of “him that has the executive power,” but he has no special safeguards to offer … [Locke writes that] the end why men “choose and authorize a legislative is that there may be laws made, and rules set, as guards and fences to the properties of all the members of society, to limit the power and moderate the dominion of every part and member of the society.”

Hayek then describes the great influence John Locke’s writings had on the development of English history leading up to the Revolutionary War:

At any rate, the main period of consolidation, during which it progressively penetrated everyday practice, was the first half of the eighteenth century. From the final confirmation of the independence of the judges in the Act of Settlement of 1701, through the occasion when the last bill of attainder ever passed by Parliament in 1706 led not only to a final restatement of all the arguments against such arbitrary action of the legislature but also to a reaffirmation of the principle of the separation of powers, the period is one of slow but steady extension of most of the principles for which the Englishmen of the seventeenth century had fought … A few significant events of the period may be briefly mentioned, such as the occasion when a member of the House of Commons (at a time when Dr. Johnson was reporting the debates) restated the basic doctrine of nulla poena sine lege, which even now is sometimes alleged not to be part of English law: “That where there is no law there is no transgression, is a maxim not only established by universal consent, but in itself evident and undeniable; and it is, Sir, surely no less certain that where there is no transgression there can be no punishment.” Another is the occasion when Lord Camden in the Wilkes case made it clear that courts are concerned only with general rules and not with the particular aims of government or, as his position is sometimes interpreted, that public policy is not an argument in a court of law … The principle of the separation of powers in particular, though regarded throughout the century as the most distinctive feature of the British constitution, became less and less a fact as modern cabinet government developed. And Parliament with its claim to unlimited power was soon to depart from yet another of the principles … The second half of the eighteenth century produced the coherent expositions of the ideals which largely determined the climate of opinion for the next hundred years. As is so often the case, it was less the systematic expositions by political philosophers and lawyers than the interpretations of events by the historians that carried these ideas to the public. The most influential among them was David Hume, who in his works again and again stressed the crucial points and of whom it has justly been said that for him the real meaning of the history of England was the evolution from a “government of will to a government of law.” At least one characteristic passage from his History of England deserves to be quoted. With reference to the abolition of the Star Chamber he writes: “No government, at that time, appeared in the world, nor is perhaps to be found in the records of any history, which subsisted without the mixture of some arbitrary authority, committed to some magistrate; and it might reasonably, beforehand, appear doubtful, whether human society could ever arrive at that state of perfection, as to support itself with no other control, than the general and rigid maxims of law and equity. But the parliament justly thought, that the King was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty. And in the event it has been found, that, though some inconveniencies arise from the maxim of adhering strictly to law, yet the advantages so much overbalance them, as should render the English forever grateful to the memory of their ancestors, who, after repeated contests, at last established that noble principle.” … [I]n Blackstone's Commentaries, do we find endeavors to elaborate particular points, such as the significance of the independence of the judges and of the separation of powers, or to clarify the meaning of “law” by its definition as “a rule; not a transient sudden order from a superior or concerning a particular person; but something permanent, uniform and universal.” … Many of the best-known expressions of those ideals are, of course, to be found in the familiar passages of Edmund Burke. But probably the fullest statement of the doctrine of the rule of law occurs in the work of William Paley, the “great codifier of thought in an age of codification.” It deserves quoting at some length: “The first maxim of a free state,” he writes, “is, that the laws be made by one set of men, and administered by another; in other words; that the legislative and the judicial characters be kept separate. When these offices are united in the same person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends: whilst they are kept separate, general laws are made by one body of men, without foreseeing whom they may affect; and, when made, must be applied by the other, let them affect whom they will … When the parties and the interests to be affected by the law were known, the inclinations of the law makers would inevitably attach on one side or the other; and where there were neither any fixed rules to regulate their determinations, nor any superior power to control their proceedings, these inclinations would interfere with the integrity of public justice. The consequence of which must be, that the subjects of such a constitution would live either without any constant laws, that is, without any known pre-established rules of adjudication whatever; or under laws made for particular cases and particular persons, and partaking of the contradictions and iniquity of the motives to which they owed their origin. “Which dangers, by the division of the legislative and judicial functions, are in this country effectually provided against. Parliament knows not the individuals upon whom its acts will operate; it has no cases or parties before it; no private designs to serve: consequently, its resolutions will be suggested by the considerations of universal effects and tendencies, which always produces impartial, and commonly advantageous regulations.”

In the next essay in this series, we’ll examine Hayek’s discussion of a newly independent America’s contribution to the concept of the rule of law.