This is timely. A previously unavailable classic — F. A. Hayek, “Decline of the Rule of Law, 1”, from The Freeman, April 20, 1953, pp. 518-520 (pdf). Here’s the article in html:
Political wisdom, dearly bought by the bitter experience of generations, is often lost through the gradual change in the meaning of the words which express its maxims. Though the phrases themselves may continue to receive lip service, they are slowly denuded of their original significance until they are dropped as empty and commonplace. Finally, an ideal for which people have passionately fought in the past falls into oblivion because it lacks a generally understood name. If the history of political concepts is in general of interest only to the specialist, in such situations there is often no other way of discovering what is happening in our time than to go back to the source in order to recover the original meaning of the debased verbal coin which we still use. Today this is certainly true of the conception of the Rule of Law which stood for the Englishman’s ideal of liberty, but which seems now to have lost both its meaning and its appeal.
There can be little doubt about the source from which the Englishmen of the late Tudor and early Stuart period derived their new political ideal for which their sons fought in the seventeenth century; it was the rediscovery of the political philosophy of ancient Greece and Rome which, as Thomas Hobbes complained, inspired the new enthusiasm for liberty. Yet if we ask precisely what were the features in the teaching of the ancients which had that great appeal, the answer of modern scholarship is none too clear. We need not take seriously the fashionable allegation that personal freedom did not exist in ancient Athens: whatever may have been true of the degenerate democracy against which Plato reacted, it certainly was not true of those Athenians whom, at the moment of supreme danger during the Sicilian expedition, their general reminded above all that they were fighting for a country in which they had “unfettered discretion to live as they pleased.” But wherein did this freedom of the “freest of the free countries,” as Nicias called it on the same occasion, appear to consist both to the Greeks themselves and to the Elizabethans whose imagination it fired?
I suggest the answer lies in part in a Greek word which the Elizabethans borrowed from the Greeks but which has since gone into disuse; its history, both in ancient Greece and later, provides a curious lesson. Isonomia, which appears in 1598 in John Florio’s World of Wordes as an Italian word meaning “equalitie of lawes to all manner of persons,” two years later, in its Englished form “isonomy,” is already freely used by Philemon Holland in his translation of Livy to render the description of a state of equal laws for all and of responsibility of the magistrates. It continued to be used frequently throughout the seventeenth century, and “equality before the law,” “government of law,” and “rule of law,” all seem to be later renderings of the concept earlier described by the Greek term.
Equal Laws for All
The history of the word in ancient Greek is itself instructive. It was a very old term which had preceded demokratia as the name of a political ideal. To Herodotus it was “the most beautiful of all names” for a political order. The demand for equal laws for all which it expressed was originally aimed against tyranny, but later came to he accepted as a general principle from which the demand for democracy was derived. After democracy had been achieved, the term continued to be used as a justification and later, as one scholar suggests, perhaps as a disguise of the true character of democracy: because democratic government soon proceeded to destroy that very equality before the law from which it derived its justification. The Greeks fully understood that the two concepts, although related, did not mean the same thing. Thucydides speaks without hesitation of an “isonomic oligarchy,” and later we find isonomia used by Plato quite deliberately in contrast to, rather than in vindication of, democracy.
In the light of this development the celebrated passages in Aristotle’s Politics in which he discusses the different kinds of democracy, even though he no longer uses the term isonomia, read like a defense of this old ideal. Readers will probably remember how he stresses that “it is more proper that law should govern than anyone of the citizens,” that the persons holding supreme power “should be appointed only guardians and servants of the law,” and particularly how he condemns the kind of government under which “the people govern and not the law.” Such a government, according to him, can not be regarded as a free state: “for when the government is not in the laws, then there is no free state, for the law ought to be supreme over all things”; he even contends that “any such establishment which centers all power in the votes of the people can not, properly speaking, be called a democracy, for their decrees can not be general in their extent.” Together with the equally famous passage in the Rhetorics, in which he argues that “it is of great moment that well-drawn laws should themselves define all the points they can and leave as few as may be for the decis1ion of the judges,” this provides a fairly coherent doctrine of government by law.
How much all this meant to the Athenians is shown by the account given by Demosthenes of a law introduced by an Athenian under which “it should not be lawful to propose a law affecting any one individual, unless the same applied to all Athenians,” because he was of the opinion that, “as every citizen has an equal share in civil rights, so everybody should have an equal share in the laws.” Although, like Aristotle, Demosthenes no longer uses the term isonomia, the statement is little more than a paraphrase of the old concept.
Seventeenth Century Rediscovery
A characteristic dispute between Hobbes and Harrington, from which, I believe, the modern use of the “government by laws and not by men” derives, indicates how alive these views of the ancient philosophers were to the political thinkers of the seventeenth century. Hobbes had described it as “just another error of Aristotle’s politics that in a well-ordered commonwealth not men should govern but the law.” Harrington countered that the “art whereby a civil society is instituted and preserved upon the foundation of common right or interest” is “to follow Aristotle and Livy … the empire of laws, not of men.”
To the seventeenth-century Englishmen, it seems, the Latin authors, particularly Livy, Cicero, and Tacitus, became increasingly the more important sources of political philosophy. But, even if they did not go to Holland’s translation of Livy where they would have found the word, it was still the Greek ideal of isonomia which they met at all the crucial points. Cicero’s Omnes legum servi sumus ut liberi esse possumus [we are all servants of the laws in order that we may be free] (repeated later, almost word for word, by Voltaire, Montesquieu, and Kant) is perhaps the most concise expression of the ideal of freedom under the law. During the classical period of the Roman Law, it was once more understood that there was no real conflict between freedom and the law, their generality, certainty, and the restrictions they placed on the discretion of the authority, which was the essential condition of freedom. This condition lasted until the strict law (ius strictum) was progressively abandoned in the interest of a new social policy. As a distinguished student of Roman Law, F. Pringsheim, has described this process which started under the Emperor Constantine:
The absolute empire proclaimed together with the principle of equity the authority of the imperial will unfettered by the barrier of law. Justinian with his learned professors brought this process to its conclusion.
Struggle for Economic Freedom
When it comes to show what the Englishmen of the seventeenth and eighteenth centuries made of the classical tradition they had rediscovered, any brief account must inevitably consist mainly of quotations. But many of the most telling and instructive expressions of the central doctrine as it developed are less well known than they deserve. Nor is it generally remembered today that the decisive struggle between King and Parliament which led to the recognition and elaboration of the Rule of Law was fought mainly over the kind of economic issues which are again the center of controversy today. To the nineteenth-century historians the measures of James I and Charles I which produced the conflict seemed antiquated abuses without topical interest. Today, some of these disputes have an extraordinarily familiar ring. (In 1628 Charles I refrained from nationalizing coal only when it was pointed out to him that it might cause a rebellion!)
Throughout the period it was the demand for equal laws for all citizens by which Parliament opposed the King’s efforts to regulate economic life. Men then seem to have understood better than they do today that the control of production always means the creation of privilege, of giving permission to Peter to do what Paul is not allowed to do. The first great statement of the principle of the Rule of Law, of certain and equal laws for all and of the limitation of administrative discretion, is contained in the Petition of Grievances of 1610; it was caused by new regulations for building in London and the prohibition of the making of starch from wheat which the King had made. On this occasion the House of Commons pleaded:
Among many other points of happiness and freedom which Your Majesty’s subjects of this kingdom have enjoyed under your royal progenitors, Kings and Queen of this realm, 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 both 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 hath grown the indisputable right of the people of this kingdom, not to be subject to any punishment that shall extend their lives, lands, bodies, or goods, other than such as are ordained by the common law of this land, or the statutes made by their common consent in Parliament.
The further development of what contemporary Socialist lawyers have contemptuously dismissed as the Whig doctrine of the Rule of Law was closely connected with the fight against government-conferred monopoly and particularly with the discussion around the Statute of Monopolies of 1624. It was mainly in this connection that that great source of Whig doctrine, Sir Edward Coke, developed his interpretation of Magna Carta which led him to declare (in his second Institutes):
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 … and consequently against this great charter.
We have already noticed the characteristic positions taken on the critical point of executive discretion by Hobbes and Harrington respectively. We are not interested here in tracing the further steps in the development of the doctrine and shall pass over even its classical exposition by John Locke, except for the rarely noticed modern justification which he gives it. Its a’im is to him what contemporary writers have called the “taming of power”:
Laws made and rules set … to limit the power and moderate the dominion of every part and member of society.
The form in which the doctrine became the common property of an Englishmen was determined, however, as is probably always true in such cases, more by the historians who presented the achievements of the revolution to later generations than by the writings of the political theorists. Thus, if we want to know what the tradition in question meant to the Englishman of the late eighteenth or early nineteenth century, we can hardly do better than turn to David Hume’s History of England which indeed is to a large extent an interpretation of political progress from “government of will” to “government of law.” There is particularly one passage, referring to the abolition of the Star Chamber in 1641, which shows what he regarded as the chief significance of the constitutional developments of the seventeenth century:
No government, at that time, appeared in the world, nor is perhaps found in the records of any history, which subsisted without a 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.
Later, of course, this Whig doctrine found its classic expression in many familiar passages of Edmund Burke. But if we want a more precise statement of its content we have to turn to some of his lesser contemporaries. A characteristic statement which has been attributed to Sir Philip Francis (but which probably occurs in the Junius letters) is the following:
The government of England is a government of law. We betray ourselves, we contradict the spirit of our laws, and we shake the whole system of English jurisprudence, whenever we entrust a discretionary power over the life, liberty, or fortune of the subject to any man, or set of men, whatsoever, on the presumption that it will not be abused.
The fullest account of the rationale of the whole doctrine which I know occurs, however, in the chapter “Of the Administration of Justice” in Archdeacon Paley’s Principles of Moral and Political Philosophy:
The first maxim of a free state is, that the laws be made by one set of men, and administered by another; in other words, that the legislative and the judicial character be kept separate. When these offices are united in the same person or assembly, particular laws are made for paricular 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 forseeing whom they will affect; and, when made, must be applied by the other, let them affect whom they will….
Parliament knows not the individuals upon whom its acts will operate: it has no case or parties before it: no private designs to serve: consequently, its resolutions will be suggested by the consideration of universal effects and tendencies, which always produce impartial and commonly advantageous regulations.
Here, I suggest, we have nearly all the elements which together produce the complex doctrine which the nineteenth century took for granted under the name of the Rule of Law. The main point is that, in the use of its coercive powers, the discretion of the authorities should be so strictly bound by laws laid down beforehand that the individual can foresee with fair certainty how these powers will be used in particular instances; and that the laws themselves are truly general and create no privileges for class or person because they are made in view of their long-run effects and therefore in necessary ignorance of who will be the particular individuals who will be benefited or harmed by them. That the law should be an instrument to be used by the individuals for their ends and not an instrument used upon the people by the legislators is the ultimate meaning of the Rule of Law.
Since this Rule of Law is a rule for the legislator, a rule about what the law ought to be, it can, of course, never be a rule of the positive law of any land. The legislator can never effectively limit his own powers. The rule is rather a meta-legal principle which can operate only through its action on public opinion. So long as it is generally believed in, it will keep legislation within the bounds of the Rule of Law. Once it ceases to be accepted or understood by public opinion, soon the law itself will be in conflict with the Rule of Law.
(This is the first part of a two part series on “Decline of the Rule of Law”.)