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4: Freedom and the Certainty of the Law - Bruno Leoni, Freedom and the Law (LF ed.) 
Freedom and the Law, expanded 3rd edition, foreword by Arthur Kemp (Indianapolis: Liberty Fund 1991).
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Freedom and the Certainty of the Law
The Greek conception of the certainty of the law was that of a written law. Although we are not directly concerned here with problems of historical research, it may be interesting to recall that the Greeks, especially in earlier times, also had a conception of customary law and generally of unwritten laws. Aristotle himself speaks of the latter. These were not to be confused with the more recent concept of the law as a complex of written formulae in the technical sense that the word nomos assumed in the fifth and fourth centuries before Christ. But the ancient Greeks, in a more mature period of their history, also had an opportunity to become tired of their usual idea of the law as something written and enacted by such legislative bodies as the Athenian popular assembly.
The example of the ancient Greeks is particularly pertinent in this respect not only because they were the originators of the political systems later adopted by the countries of the West, but also because most of the Greek people, particularly the Athenians, were sincerely fond of political freedom in a sense perfectly understandable to us and comparable with our own. What, for instance, Thucydides has Pericles say in his famous Funeral Oration for the Athenian soldiers and sailors who were the first to fall in the Peloponnesian War could be repeated quite literally by such modern representatives of the political ideal of freedom as Jefferson, De Tocqueville, John Stuart Mill, Lord Acton, or Spencer. The authenticity of the records that Thucydides made use of in order to reconstruct Pericles” speech is still an open question. But even if we imagine that Thucydides himself wrote this speech instead of Pericles, the authority of Thucydides, as far as the feeling of the Athenians and the conditions of his times are concerned, would not be inferior to that of Pericles in this respect. Thus, in the English translation of Crawley, Pericles, as quoted by Thucydides, uses these words to describe the Athenian political and civil system in the middle of the fifth century before Christ:
Our constitution does not copy the laws of neighboring states. We are rather a pattern to others than imitators ourselves. Its administration favors the many instead of the few; this is why it is called a democracy. If we look to the laws, they afford equal justice to all in their private differences; if to social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit. Nor again does poverty bar the way. If a man is able to serve the state, he is not hindered by the obscurity of his condition. The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbor for doing what he likes, or even to indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty. But all this ease in our private relations does not make us lawless as citizens. Against this, fear is our chief safeguard, teaching us to obey the magistrates and the laws, particularly such as regard the protection of the injured, whether they are actually on the statute books or belong to that code which, although unwritten, yet cannot be broken without acknowledged disgrace.1
This Greek idea of freedom, as reflected in Pericles” speech, is quite similar to our contemporary idea of freedom as maximum independence of constraint exercised by others, including the authorities, over our individual behavior. The old notion held by some scholars like Fustel de Coulanges that the ancient Greeks would not have given to the word “freedom” a sense similar to the one we now give to it in most instances has been successfully revised in recent times. There is, for example, a book entitled The Liberal Temper in Greek Politics (1957), written by a Canadian scholar, Professor Eric A. Havelock, with the purpose of evidencing the splendid contribution that many Greek thinkers less famous than Plato and Aristotle gave to the ideal of political freedom as contrasted with bondage in all senses of the word. One of the conclusions emerging from this book is that Greek freedom was not “freedom from want,” but freedom from men. As Democritus pointed out in a fragment that has been preserved to the present day, “poverty under a democracy is as much to be preferred above what an oligarchy calls prosperity as is liberty above bondage.” Liberty and democracy come first in this scale of values; prosperity comes after. There is little doubt that this was also the scale of values of the Athenians. Certainly it was that of Pericles and of Thucydides. We also read in the Funeral Oration that those Athenians who had died in the war ought to be taken as a model by their fellow citizens, who, “judging happiness to be the fruit of freedom and freedom of valor, never would decline the dangers of war.”2
Law-making was the business of popular legislative assemblies, and the general rules laid down in written form by those assemblies were contrasted with the arbitrary orders of tyrants. But the Greeks, and particularly the Athenians, were to realize fully in the second half of the fifth and in the fourth century before Christ the grave inconveniences of a law-making process by means of which all the laws were certain (that is, precisely worded in a written formula), but nobody was certain that any law, valid today, could last until tomorrow without being abrogated or modified by a subsequent law. Tysamenes” reformation of the Athenian constitution at the end of the fifth century offers us an example of a remedy against this inconvenience that could be usefully pondered by contemporary political scientists and politicians. A rigid and complex procedure was then introduced in Athens in order to discipline legislative innovations. Every bill proposed by a citizen (in the Athenian direct democracy every man belonging to the general legislative assembly was entitled to present a bill, whereas in Rome only the elected magistrates could do so) was thoroughly studied by a special committee of magistrates (nomotetai) whose task was precisely that of defending the previous legislation against the new proposal. Of course, proponents could freely argue before the general legislative assembly against the nomotetai in order to support their own bills, so that the whole discussion must have been based more on a comparison between the old and the new law than on a simple oration in favor of the latter.
But this was not the end of the story. Even when the bill had been passed at last by the assembly, the proponent was held responsible for his proposal if another citizen, acting as a plaintiff against the proponent himself, could prove, after the law had been approved by the assembly, that the new legislation had some grave defects or that it was in irremediable contradiction with older laws still valid in Athens. In that case, the proponent of the law could be legitimately tried, and the penalties could be very serious, including the death sentence, although, as a rule, unfortunate proponents suffered only fines. This is not a legend. We know all this from Demosthenes’ accusation against one of these unfortunate proponents named Tymocrates. This system of fining proponents of unsuitable legislation was not in opposition to democracy, if we mean by that word a regime in which the people are sovereign and if we admit that sovereignty means also irresponsibility, as it does in many historical interpretations of it.
We must infer that the Athenian democracy at the end of the fifth century and during the fourth century before Christ was obviously not satisfied with the notion that the certainty of the law could be equated simply with that of a precisely worded formula in a written text.
Through Tysamenes’ reform, the Athenians discovered at last that they could not be free from the interference of the political power only by obeying the laws of today; they also needed to be able to foresee the consequences of their actions according to the laws of tomorrow.
This is, in fact, the chief limitation of the idea that the certainty of the law can be simply identified with the precise wording of a written rule, whether general or not.
But the idea of the certainty of the law has not only the above-mentioned sense in the history of the political and legal systems of the West. It has also been understood in a completely different sense.
The certainty of the law, in the sense of a written formula, refers to a state of affairs inevitably conditioned by the possibility that the present law may be replaced at any moment by a subsequent law. The more intense and accelerated is the process of law-making, the more uncertain will it be that present legislation will last for any length of time. Moreover, there is nothing to prevent a law, certain in the above-mentioned sense, from being unpredictably changed by another law no less “certain” than the previous one.
Thus, the certainty of the law, in this sense, could be called the short-run certainty of the law. Indeed, there seems to be a striking parallel in our day between short-run types of provisions in matters of economic policy and the short-run certainty of the laws that are enacted to secure these provisions. In a more general way, the legal and political systems of almost all countries today could be defined in this respect as short-run systems, in contrast to some of the classic long-run systems of the past. The famous dictum of the late Lord Keynes that “in the long run we shall all be dead” could be adopted as the motto of the present age by future historians. Perhaps we have become increasingly accustomed to expect immediate results from the enormous and unprecedented progress in the technical means and scientific devices developed to perform many kinds of tasks and to achieve many kinds of results in material ways. Undoubtedly, this fact has created for many people who ignore or try to ignore the differences the expectation of immediate results also in other fields and in regard to other matters not dependent at all on technological and scientific progress.
I am reminded of a conversation I had with an old man who grew plants in my country. I asked him to sell me a big tree for my private garden. He replied, “Everybody now wants big trees. People want them immediately; they do not bother about the fact that trees grow slowly and that it takes a great deal of time and trouble to grow them. Everybody today is always in a hurry,” he sadly concluded, “and I do not know why.”
Lord Keynes could have told him the reason: people think that in the long run they will all be dead. This same attitude is also noticeable in connection with the general decline in religious belief that so many priests and pastors lament today. Christian religious beliefs used to emphasize, not the present life of man, but a future one. The less men believe now in that future world, the more they cling to their present life, and, believing that individual life is short, they are in a hurry. This has caused a great secularization of religious beliefs at the present time in the countries of both the Occident and the Orient, so that even a religion as indifferent to the present world as Buddhism is being given by some of its supporters a mundane “social,” if not, in fact a “socialist,” meaning. A contemporary American writer, Dagobert Runes, says in his book on contemplation, “Churches have lost the touch of the Divine and turned to book reviews and politics.”3
This may help to explain why there is now so little attention given to a long-run conception of the certainty of the law or indeed to any other long-run conception that relates to human behavior. Of course, this does not mean that short-run systems are, in fact, more efficient than long-run ones in achieving the very ends that people endeavor to attain by devising, say, a new miraculous full-employment policy or some unprecedented legal provision or simply by asking from growers big trees for their gardens.
The short-run concept is not the only notion of the certainty of the law that the history of political and legal systems in the countries of the West presents to a student patient enough to recognize the principles that underlie institutions.
This was not so in ancient times. Although Greece could be described to a certain extent by historians as a country with a written law, it is doubtful that this was true of ancient Rome. We probably are so used to thinking of the Roman legal system in terms of Justinian’s Corpus Juris, that is, in terms of a written law book, that we fail to realize how Roman law actually worked. A large part of the Roman rules of law was not due to any legislative process whatever. Private Roman law, which the Romans called jus civile, was kept practically beyond the reach of legislators during most of the long history of the Roman Republic and the Empire. Eminent scholars, such as the late Italian Professors Rotondi and Vincenzo Arangio Ruiz and the late English jurist, W. W. Buckland, repeatedly point out that “the fundamental notions, the general scheme of the Roman law, must be looked for in the civil law, a set of principles gradually evolved and refined by a jurisprudence extending over many centuries, with little interference by a legislative body.”4 Buckland also remarks, probably on the basis of Rotondi’s studies, that “of the many hundreds of leges [statutes] that are on record, no more than about forty were of importance in the private law,” so that at least in the classical age of Roman law “statute, as far as private law is concerned, occupies only a very subordinate position.”5
It is obvious that this was not the result of any lack of skill on the part of the Romans in devising statutes. They had many available types of statutes: the leges, the plebiscita, and the Senatus Consulta, approved respectively by the people or by the Senate, and they also had at their disposal several kinds of leges, such as the leges imperfectae, the minusquamperfectae, and the plusquamperfectae. But, as a rule, they reserved statutory law to a field in which legislative bodies were directly qualified to intervene, namely, public law, quod ad rem Romanam spectat, relating to the functioning of political assemblies, of the Senate, of the magistrates, that is to say, of their government officials. Statutory law for the Romans was mainly constitutional law or administrative law (and also criminal law), only indirectly relating to the private life and private business of the citizens.
This meant that whenever a difference arose between Roman citizens about their rights or their duties according to a contract, for example, they could rarely base their claims on a statute, on a written rule precisely worded, and therefore certain in the Greek or short-run sense of the word. Thus, one of the most eminent among contemporary historians of Roman legal science and law, Professor Fritz Schulz, has pointed out that certainty (in the short-run sense) was unknown to the Roman civil law. This does not mean at all that the Romans were not in a position to make plans about the future legal consequences of their actions. Everybody knows the enormous development of the Roman economy, and it is hardly necessary to refer here to the imposing work of Rostovtzeff on this subject.
On the other hand, it is well known to all students of Roman private law that, as Professor Schulz says, “the individualism of Hellenistic liberalism caused the private law to be developed on a basis of freedom and individualism.”6 As a matter of fact, most of our contemporary Continental codes, such as the French, the German, and the Italian, were written according to the rules of the Roman law recorded in Justinian’s Corpus Juris. They have been labeled as “bourgeois” by some socialist reformers. So-called social “reforms” in European countries today can be brought about, if at all, only by modifying or canceling rules that very often go back to those of ancient Roman private law.
Thus, the Romans had a law sufficiently certain to enable citizens freely and confidently to make plans for the future, and this without being a written law at all, that is, without being a series of precisely worded rules comparable to those of a written statute. The Roman jurist was a sort of scientist: the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concerning their plants or their production. Hence, private Roman law was something to be described or to be discovered, not something to be enacted—a world of things that were there, forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will. This did not mean absence of change, but it certainly meant that nobody went to bed at night making his plans on the basis of a present rule only to get up the next morning and find that the rule had been overturned by a legislative innovation.
The Romans accepted and applied a concept of the certainty of the law that could be described as meaning that the law was never to be subjected to sudden and unpredictable changes. Moreover, the law was never to be submitted, as a rule, to the arbitrary will or to the arbitrary power of any legislative assembly or of any one person, including senators or other prominent magistrates of the state. This is the long-run concept, or, if you prefer, the Roman concept, of the certainty of the law.
This concept was certainly essential to the freedom that Roman citizens usually enjoyed in business and in all private life. To a certain extent, it put juridical relations among citizens on a plane very similar to that on which the free market put their economic relations. Law, as a whole, was no less free from constraint than the market itself. I cannot, in fact, conceive of a market actually free if it is not rooted in its turn in a legal system that is free from the arbitrary (that is, abrupt and unpredictable) interference of the authorities or of any other person in the world.
Some might object that the Roman legal system had to be based on the Roman constitutional system and that, therefore, indirectly if not directly, Roman freedom in business and in private life was in fact based on a statutory law. This, it might be argued, was submitted, in the last analysis, to the arbitrary will of the senators or of such legislative assemblies as the comitia or the concilia plebis, not to mention prominent citizens, who, like Sulla or Marius or Caesar, from time to time took control of all things and therefore had the actual power to overturn the constitution.
Roman statesmen and politicians, however, were always very cautious in using their legislative power to interfere with the private life of the citizens. Even dictators like Sulla behaved rather carefully in this respect, and probably they would have considered the idea of overturning the jus civile almost as strange as modern dictators would consider the idea of subverting physical laws.
True, men like Sulla made a great effort to change the Roman constitution in many respects. Sulla himself tried to wreak vengeance upon Italian peoples and on cities like Arretium or Volaterrae previously helpful to his chief enemy, Marius, by making the Roman legislative assemblies enact laws that suddenly deprived the inhabitants of these towns of the Roman jus civitatis, that is, of Roman citizenship, and of all the privileges it involved. We know all this from one of Cicero’s orations in behalf of Cecina, delivered by Cicero himself before a Roman court. But we also know that Cicero won his case by arguing that the law enacted by Sulla was not legitimate, since no legislative assembly could by a statute deprive a Roman citizen of his citizenship, any more than it could by a statute deprive a Roman citizen of his freedom. The law enacted by Sulla was a statute formally approved by the people, of the type the Romans used to call a lex rogata, that is, a statute whose approval had been requested and obtained from a popular assembly by an elected magistrate by due process of law. We are told by Cicero, in this connection, that all bills to be made into statute law used to contain, from very ancient times, a clause the meaning of which, although not completely understandable in a later age, obviously related to the possibility that the content of the bill, if it became a statute, might not be legal: “Si quid jus non esset rogarier, eius ea lege nihilum rogatum” (“if there is in this bill whose approval I am requesting of you,” said the magistrate to the legislative assembly of the Roman people, “anything that is not legal, your approval of it is to be considered as not requested”).
This seems to prove that there were statutes that could be contrary to law and that statutes like those depriving citizens of their freedom or of their citizenship were not considered as legal by Roman courts.
If Cicero is correct, we may conclude that Roman law was limited by a concept of legitimacy strikingly similar to that set forth by Dicey in regard to the English “rule of law.”7
According to the English principle of the rule of law, which is closely connected with the whole history of the common law, rules were not properly the result of the exercise of the arbitrary will of particular men. They are the object of a dispassionate investigation on the part of courts of judicature, just as the Roman rules were the object of a dispassionate investigation on the part of the Roman jurists to whom litigants submitted their cases. It is now considered old-fashioned to maintain that courts of justice describe or discover the correct solution of a case in the way that Sir Carleton Kemp Allen has pointed out in his rightly famous and stimulating book, Law in the Making. The contemporary so-called realistic school, while presuming to reveal all kinds of deficiencies in this process of discovery, is only too pleased to conclude that the work of the common-law judges was and is no more objective, and only less overt, than that of legislators. As a matter of fact, much more needs to be said on this topic than it is possible to say here. But one cannot deny that the attitude of common-law judges towards the rationes decidendi of their cases (i.e., the grounds of their decisions) has always been much less that of a legislator than that of a scholar trying to ascertain things rather than to change them. I do not deny that common-law judges may have sometimes deliberately concealed their desire to have something ruled in a certain way under cover of a pretended statement about an already existing rule of the law of the land. The most famous of these judges in England, Sir Edward Coke, is not exempt from this suspicion, and I dare say the most famous of American judges, Chief Justice Marshall, may be also compared in this respect with his celebrated predecessor in seventeenth-century England.
My point is merely that courts of judicature could not easily enact arbitrary rules of their own in England, as they were never in a position to do so directly, that is to say, in the usual, sudden, widely ranging and imperious manner of legislators. Moreover, there were so many courts of justice in England and they were so jealous of one another that even the famous principle of the binding precedent was not openly recognized as valid by them until comparatively recent times. Besides, they could never decide anything that had not been previously brought before them by private persons. Finally, comparatively few people used to go before the courts to ask from them the rules deciding their cases. As a result, judges were more in the position of spectators than of actors in the law-making process, and, moreover, of spectators not allowed to see all the things that happen on the stage. Private citizens were on the stage; common law was chiefly just what they commonly thought of as being law. Common citizens were the real actors in this respect, just as they still are the real actors in the formation of the language and, at least partially, in economic transactions in the countries of the West. The grammarians who epitomize the rules of a language or the statisticians who make records of prices or of quantities of goods exchanged in the market of a country could better be described as simple spectators of what is happening around them than as rulers of their fellow citizens as far as the language or the economy is concerned.
The increasing importance of the legislative process in the present age has inevitably obscured, both on the European Continent and in the English-speaking countries, the fact that law is simply a complex of rules relating to the behavior of the common people. There is no reason to consider these rules of behavior much different from other rules of behavior in which interference on the part of political power has been only exceptionally, if ever, exercised. True, in the present age language seems to be the only thing that the common people have been able to keep for themselves and to protect from political interference, at least in the Western world. In Red China today, for instance, the government is making a violent effort to change the traditional writing, and similar interference has already been successfully practiced in certain other countries of the East, such as Turkey. Thus, in many lands people have almost completely forgotten the days when bank notes, for example, were issued not only by a governmental bank, but also by private banks. Moreover, very few people know now that in other times the making of coins was a private business and that governments limited themselves to protecting citizens against bad practices on the part of counterfeiters simply by certifying the authenticity and the weight of the metals employed. A similar trend in public opinion is noticeable in regard to government-operated enterprises. In Continental Europe, where railroads and telegraphs have been monopolized by the governments for a long time, very few, even among well educated people, now imagine that in this country railroads and telegraphic communications are private businesses in the same way as movies or hotels or restaurants. We have become increasingly accustomed to considering law-making as a matter that concerns the legislative assemblies rather than ordinary men in the street and, besides, as something that can be done according to the personal ideas of certain individuals provided that they are in an official position to do so. The fact that the process of lawmaking is, or was, essentially a private affair concerning millions of people throughout dozens of generations and stretching across several centuries goes almost unnoticed today even among the educated elite.
It is said that the Romans had little taste for historical and sociological considerations. But they did have a perfectly clear view of the fact I have just mentioned. For instance, according to Cicero, Cato the Censor, the champion of the traditional Roman way of life against the foreign (that is, Greek) importation, used to say that
the reason why our political system was superior to those of all other countries was this: the political systems of other countries had been created by introducing laws and institutions according to the personal advice of particular individuals like Minos in Crete and Lycurgus in Sparta, while at Athens, where the political system had been changed several times, there were many such persons, like Theseus, Draco, Solon, Cleisthenes, and several others. . . . Our state, on the contrary, is not due to the personal creation of one man, but of very many; it has not been founded during the lifetime of any particular individual, but through a series of centuries and generations. For he said that there never was in the world a man so clever as to foresee everything and that even if we could concentrate all brains into the head of one man, it would be impossible for him to provide for everything at one time without having the experience that comes from practice through a long period of history.8
Incidentally, these words remind us of the much more famous, but no more impressive, terms employed by Burke to justify his conservative view of the state. But Burke’s words had a slightly mystical tone that we do not find in the dispassionate considerations of the old Roman statesman. Cato is merely pointing to facts, not persuading people, and the facts he points out must undoubtedly carry great weight with all who know something of history.
The law-making process, so Cato says, is not actually that of any particular individual, brain trust, time, or generation. If you think that it is, you have worse results than you would have by bearing in mind what I have said. Look at the fate of the Greek cities and compare it with ours. You will be convinced. This is the lesson—nay, I would say, the message—of a statesman about whom we commonly know only what we learned when we went to school, that he was a crusty bore, always insisting that the Carthaginians had to be killed and their city razed.
It is interesting to point out that when contemporary economists like Ludwig von Mises criticize central economic planning because it is impossible for the authorities to make any calculation regarding the real needs and the real potentialities of the citizens, they take a position that reminds us of that of the ancient Roman statesman. The fact that the central authorities in a totalitarian economy lack any knowledge of market prices in making their economic plans is only a corollary of the fact that central authorities always lack a sufficient knowledge of the infinite number of elements and factors that contribute to the social intercourse of individuals at any time and at any level. The authorities can never be certain that what they do is actually what people would like them to do, just as people can never be certain that what they want to do will not be interfered with by the authorities if the latter are to direct the whole law-making process of the country.
Even those economists who have most brilliantly defended the free market against the interference of the authorities have usually neglected the parallel consideration that no free market is really compatible with a law-making process centralized by the authorities. This leads some of these economists to accept an idea of the certainty of the law, that is, of precisely worded rules such as those of written law, which is compatible neither with that of a free market nor, in the last analysis, with that of freedom understood as the absence of constraint exercised by other people, including the authorities, over the private life and business of each individual.
It may seem immaterial to some supporters of the free market whether rules are laid down by legislative assemblies or by judges, and one may even support the free market and feel inclined to think that rules laid down by legislative bodies are preferable to the rationes decidendi rather unprecisely elaborated by a long series of judges. But if one seeks historical confirmation of the strict connection between the free market and the free law-making process, it is sufficient to consider that the free market was at its height in the English-speaking countries when the common law was practically the only law of the land relating to private life and business. On the other hand, such phenomena as the present acts of governmental interference with the market are always connected with an increase in statutory law and with what has been called in England the “officialization” of judiciary powers, as contemporary history proves beyond doubt.
If we admit that individual freedom in business, that is, the free market, is one of the essential features of political freedom conceived of as the absence of constraint exercised by other people, including the authorities, we must also conclude that legislation in matters of private law is fundamentally incompatible with individual freedom in the above-mentioned sense.
The idea of the certainty of the law cannot depend on the idea of legislation if “the certainty of the law” is understood as one of the essential characteristics of the rule of law in the classical sense of the expression. Thus, I think that Dicey was perfectly consistent in assuming that the rule of law implies the fact that judicial decisions are at the very foundation of the English constitution and in contrasting this fact with the opposite process on the Continent, where legal and judiciary activities appear to be based on the abstract principles of a legislated constitution.
Certainty, in the sense of the long-run certainty of the law, was just what Dicey bore more or less clearly in mind when he said, for instance, that whereas each and all of the guarantees that Continental constitutions afforded to citizens relating to their rights could be suspended or taken away by some power that was above the ordinary law of the land, in England “the constitution being based on the rule of law, the suspension of the constitution, as far as such a thing can be conceived, would mean . . . nothing less than a revolution.”9
The fact that this very revolution is now taking place does not disprove, but rather confirms, the Dicean theory. A revolution is occurring in England by virtue of the gradual overturning of the law of the land by way of statutory law and through the conversion of the rule of law into something that is now increasingly coming to resemble the Continental état de droit, that is, a series of rules that are certain only because they are written, and general, not because of a common belief on the part of the citizens about them, but because they have been decreed by a handful of legislators.
In other words, the impersonal law of the land is coming more and more under the command of the sovereign in England, just as Hobbes and later Bentham and Austin had advocated, against the opinion of the English jurists of their day.
Sir Matthew Hale, a brilliant disciple of Sir Edward Coke and himself a Chief Justice after Coke, wrote towards the end of the seventeenth century in defense of his master against the criticism that Hobbes had elaborated in his little-known Dialogue on the Common Law. Hobbes had maintained, in his typical scientistic manner, that law is no product, as Coke had said in his curious way, of “artificial reason,” and that everybody could establish general rules of law simply by using the ordinary reason common to all men. “Though it be true that no man is born with the use of reason, yet all men,” said Hobbes, “may grow up to it as well as lawyers; and when they have applied their reason to the laws . . . may be as fit for and capable of judicature as Sir Edward Coke himself.”10 Surprisingly enough, Hobbes considered this argument consistent with his assertion that “none can make a law but he that has the legislative power.” The dispute between Hobbes, on the one hand, and Coke and Hale, on the other, is highly interesting in connection with very important methodological questions arising from the comparison of the work of jurists with that of other people like physicists or mathematicians. Taking issue with Hobbes, Sir Matthew Hale pointed out that it is of no use to compare the science of the law with other sciences such as the “mathematical sciences” because for the “ordering of civil societies and for the measuring of right and wrong” it is not only necessary to have correct general notions, but it is also necessary to apply them correctly to particular cases (which is, incidentally, just what judges try to do). Hale argued that
they that please themselves with a persuasion that they can with as much evidence and congruitie make out an unerring system of laws and politiques [that is, we would say, written constitutions and legislation] equally applicable to all states [i.e., conditions] as Euclide demonstrates his conclusions, deceive themselves with notions which prove ineffectual when they come to particular application.11
One of the most striking remarks made by Hale reveals the consciousness that he as well as Coke had of the requirement of certainty as the long-run certainty of the law:
“Tis a foolish and unreasonable thing for any to find fault with an institution because he thinks he could have made a better, or expect a mathematical demonstration to evince the reasonableness of an institution or the selfe evidence thereof. . . . It is one of the thinges of the greatest moment in the profession of the common law to keepe as neare as may be to the certainty of the law, and the consonance of it to itselfe, that one age and one tribunal may speake the same thinges and carry on the same thred of the law in one uniforme rule as neare as possible; for otherwise that which all places and ages have contended for in laws, namely certainty [italics added] and to avoid arbitrariness and that extravagance that would fall out if the reasons of judges and advocates were not kept in their traces, would in half an age be lost. And this conservation of laws within their boundes and limitts could never be, unless men be well informed by studies and reading what were the judgements and resolutions and decisions and interpretations of former ages.12
It would be difficult to connect more clearly and more decidedly the concept of certainty to that of the uniformity of rules through the ages, and of continuity to the modest and limited work of courts of judicature instead of that of legislative bodies.
This is exactly what is meant by the long-run certainty of the law, and it is incompatible, in the last analysis, with the short-run certainty implied by identifying law with legislation.
The former was also the Roman conception of the certainty of the law. Famous scholars have noted the lack of individuality of the Roman jurists. Savigny called them “fungible personalities.” This lack of individuality was a natural counterpart of their individualistic view of the private laws they were studying. Private law was conceived of by them as a common inheritance of each and all of the Roman citizens. Therefore, nobody felt entitled to change it at his own will. When changes occurred, they were recognized by the jurists as having already happened in their environment rather than being introduced by the jurists themselves. For the same reason, like their modern successors, the English judges, Roman jurists never bothered about abstract principles, but were always concerned with “particular cases,” to use the above-mentioned expression of Sir Matthew Hale. What is more, the lack of individuality on the part of the Roman jurists was of the same nature as that accepted by Sir Matthew Hale when he stated:
It is a reason for me to preferre a law by which a kingdome hath been happily governed four or five hundred years than to adventure the happiness and peace of a kingdome upon some new theory of my own.13
In the same spirit, Roman jurists hated abstract theories and all the paraphernalia of the philosophy of law cultivated by Greek thinkers. As one Roman jurist (who was also a statesman), Neratius, wrote once in the second century after Christ: “Rationes eorum quae constituntur inquiri non oportet, alioquin multa quae certa sunt subvertuntur” (“we must avoid making inquiry about the rationale of our institutions, lest their certainty be lost and they be overthrown”).14
To sum up very briefly: Many Western countries, in ancient as well as in modern times, have considered the ideal of individual freedom (the absence of constraint exercised by other people, including the authorities) essential to their political and legal systems. A conspicuous characteristic of this ideal has always been the certainty of the law. But the certainty of the law has been conceived in two different and, in the last analysis, even incompatible ways: first, as the precision of a written text emanating from legislators, and second, as the possibility open to individuals of making long-run plans on the basis of a series of rules spontaneously adopted by people in common and eventually ascertained by judges through centuries and generations. These two conceptions of “certainty” have rarely, if ever, been distinguished by scholars, and many ambiguities have been maintained in the meaning of the term by the common people in Continental Europe as well as in English-speaking countries. This is probably the chief reason why a comparison between European constitutions and the English constitution could be deemed easier than it was and why European political scientists could imagine that they were contriving good imitations of the English constitution without taking into consideration the significance that the peculiar kind of law-making process called the common law has always had for the English constitution.
Without this law-making process it is probably impossible to conceive of a rule of law in the classical English sense of the expression expounded by Dicey. On the other hand, without the legislative law-making process no Continental system would be what it is today.
In the present age the confusion of the meanings of “certainty” and “the rule of law” has particularly increased because of the emerging tendency in the English-speaking countries to emphasize law-making by way of legislation instead of by courts of judicature.
The obvious effects of this confusion have already begun to reveal themselves with respect to the idea of political freedom and freedom of enterprise. Once again semantic confusion seems to be at the very root of many troubles. I do not maintain that all our difficulties are due to semantic confusion. But it is a very important task of political scientists as well as of economists to analyze the different and contradictory meanings we imply in the English-speaking and in the European Continental countries respectively when we talk of “freedom” in connection with “the certainty of the law” and “the rule of law.”
[1 ] Thucydides, The History of the Peloponnesian War, II, 37-39, tr. by R. Crawley (London: J. M. Dent & Sons, 1957, p. 93).
[2 ] Loc. cit.
[3 ] Dagobert D. Runes, A Book of Contemplation (New York: Philosophical Library, 1957), p. 20.
[4 ] W. W. Buckland, Roman Law and Common Law (2nd ed. revised by F. H. Lawson; Cambridge University Press, 1952), p. 4. This book is a fascinating comparison of the two systems.
[5 ] Ibid., p. 18.
[6 ] Fritz Schulz, History of Roman Legal Science (Oxford: Clarendon Press, 1946), p. 84.
[7 ] I am indebted for this and other interesting remarks on the Roman legal system to Professor V. Arangio Ruiz, whose essay “La règle de droit dans l’antiquité classique,” republished by the author in Rariora (Rome: Ed. di storia e letteratura, 1946, p. 233), is very informative and stimulating.
[8 ] Cicero De republica ii. 1, 2.
[9 ] Dicey, loc. cit.
[10 ] Thomas Hobbes, Dialogue between a Philosopher and a Student of the Common Laws of England (1681) in Sir William Molesworth, ed., The English Works of Thomas Hobbes of Malmesbury (London: John Bohn, 1829-1845), VI, 3-161.
[11 ] Matthew Hale, “Reflections by the Lord Chief Justice Hale on Mister Hobbes, His Dialogue of the Law,” published for the first time by Holdsworth, History of English Law (London: Methuen & Co., 1924), Vol. V, Appendix, p. 500.
[12 ] Ibid., p. 505.
[13 ] Ibid., p. 504.
[14 ]Dig. I, 3, 21.