Leoni on the Rule of Law
Source: Bruno Leoni, Freedom and the Law, expanded 3rd edition, foreword by Arthur Kemp (Indianapolis: Liberty Fund 1991). Chapter: 3: Freedom and the Rule of Law
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Freedom and the Rule of Law
It is not easy to state what English-speaking people mean by the expression “the rule of law.” The meaning of these words has changed in the last seventy or even fifty years, and the phrase itself has acquired rather an obsolete sound in England as well as in America. Nevertheless, it once corresponded to an idea that (as Professor Hayek pointed out in his first lecture on freedom and the rule of law given at the National Bank of Egypt in 1955) “had fully conquered the minds if not the practice of all the Western nations,” so that “few people doubted that it was destined soon to rule the world.”1
The complete story of this change cannot be written yet, since the process is still going on. Moreover, it is a story to a certain extent complicated, fragmentary, tedious, and, above all, hidden from people who read only newspapers, magazines, or fiction and who have no special taste for legal matters or for such technicalities as, say, the delegation of judicative authority and legislative powers. But it is a story that concerns all the countries of the West that had and still have a share not only in the juridical ideal denoted by the expression “the rule of law,” but also in the political ideal designated by the word “freedom.”
I would not go so far as to say, as Professor Hayek does in the above-mentioned lecture, that “it is in the technical discussion concerning administrative law that the fate of our liberty is being decided.” I would prefer to say that this fate is also being decided in many other places—in parliaments, on the streets, in the homes, and, in the last analysis, in the minds of menial workers and of well-educated men like scientists and university professors. I agree with Professor Hayek that we are confronted in this respect with a sort of silent revolution. But I would not say with him or with Professor Ripert of France that this is a revolution—nay, a coup d’état—promoted only, or even chiefly, by technicians like lawyers or the officials of ministries or of departments of state. In other words, the continuous and creeping change in the meaning of “the rule of law” is not the result of a “managerial” revolution, to use Burnham’s apt expression. It is a much broader phenomenon connected with many events and situations the real features and significance of which are not easily ascertainable and to which historians refer by such phrases as “the general trend of our times.” The process by which the word “freedom” began to assume several different and incompatible meanings in the last hundred years involved, as we have seen, a semantic confusion. Another semantic confusion, less obvious, but no less important, is revealing itself to those patient enough to study the silent revolution in the use of the expression “the rule of law.”
Continental European scholars, notwithstanding their wisdom, their learning, and their admiration for the British political system, from the times of Montesquieu and Voltaire have not been able to understand the proper meaning of the British constitution. Montesquieu is probably the most famous of those who are open to this criticism, particularly as far as his celebrated interpretation of the division of powers in England is concerned, in spite of the fact that his interpretation (many people would say his misinterpretation) had, in its turn, an enormous influence in the English-speaking countries themselves. Eminent English scholars, in their turn, suffered a similar criticism because of their interpretations of European Continental constitutions. The most famous of these scholars is probably Dicey, whose misunderstandings of the French droit administratif have been considered by another well-known English scholar, Sir Carleton Kemp Allen, a “fundamental mistake” and one of the main reasons why the rule of law has evolved in the English-speaking countries of the present day in the way that it has. The fact is that the powers of government were never actually separated in England as Montesquieu believed in his day, nor was the droit administratif in France or, for that matter, the Italian diritto amministrativo or the German Verwaltungsrecht actually identifiable with the “administrative law” that Sir Carleton Kemp Allen and the generality of contemporary English scholars are thinking of when they speak of the recent changes in the respective functions of the judiciary and of the executive in the United Kingdom.
After long reflection on this subject, I am inclined to conclude that even more fundamental than the misinterpretations of Dicey, on the one hand, and of Montesquieu, on the other, have been those of the scholars and ordinary people who have tried to adopt, on the European Continent, the British “rule of law” and have imagined that the Continental imitation of the English or the American system (say, for instance, the German Rechtsstaat or the French état de droit or the Italian stato di diritto) is really something very similar to the English “rule of law. “ Dicey himself, who had a lucid view of some very important differences in this respect and who several thinkers believe was rather prejudiced against the French and generally against the constitutions of the European Continent, actually thought that at the beginning of the present century there was not a great deal of difference between the English or the American “rule of law” and the Continental constitutions:
If we confine our observation to the Europe of the twentieth century, we might well say that in most European countries the rule of law is now nearly as well established as in England and that private individuals at any rate who do not meddle in politics have little to fear as long as they keep the law, either from the government or from anyone else.2
On the other hand, some Continental scholars— e.g., the great French garantistes like Guizot and Benjamin Constant and the German theorists of the Rechtsstaat like Karl von Rotteck, K. Welcker, Robert von Mohl, and Otto von Gierke—supposed (I would say, wrongly) that they were describing and recommending to their fellow citizens a type of state very similar to that of England. In our day Professor Hayek has tried to demonstrate that the German doctrine of the Rechtsstaat, before its corruption by the historicist and positivist reactionnaires at the end of the nineteenth century, contributed a great deal, in theory if not in practice, to the ideal of “the rule of law.”
This ideal and that of the Rechtsstaat before its corruption did indeed have much in common. Almost all the features that Dicey described so brilliantly in the above-quoted book in order to explain what the English “rule of law” was, are traceable also in the Continental constitutions from the French constitution of 1789 to those of the present day.
The supremacy of the law was the chief characteristic cited in Dicey’s analysis. He quoted the old law of the English courts: “La ley est la plus haute inheritance, que le roi had; car par la ley il m me et toutes ses sujets sont rulés, et si la ley ne fuit, nul roi et nul inheritance sera” (“the law is the highest estate to which the king succeeds, for both he and all his subjects are ruled by it, and without it there would be neither king nor realm”). According to Dicey, the supremacy of the law was, in its turn, a principle that corresponded to three other concepts and therefore implied three different and concomitant meanings of the phrase “the rule of law”: (1) the absence of arbitrary power on the part of the government to punish citizens or to commit acts against life or property; (2) the subjection of every man, whatever his rank or condition, to the ordinary law of the realm and to the jurisdiction of the ordinary tribunals; and (3) a predominance of the legal spirit in English institutions, because of which, as Dicey explains, “the general principles of the English constitution (as, for example, the right to personal liberty or the right to public assembly) are the result of judicial decisions. . . .; whereas under many foreign constitutions the security given to the rights of individuals results or appears to result from the general (abstract) principles of the constitution.”3
Americans may wonder whether or not Dicey considered the American system in the same class as the Continental systems of Europe. Americans derive or appear to derive their individual rights from the general principles laid down in their Constitution and in the first ten amendments. As a matter of fact, Dicey considered the United States a typical instance of a country living under “the rule of law” because she had inherited the English traditions. He was right, as one sees when one recalls, on the one hand, the fact that a written bill of rights was not considered necessary at first by the Founding Fathers “who did not even include it in the text of the Constitution itself” and, on the other hand, the importance that judicial decisions on the part of ordinary tribunals had and still have in the political system of the United States as far as the rights of individuals are concerned.
Professor Hayek, among more recent eminent theorists of “the rule of law,” takes into consideration four features of it that correspond to a certain extent, although not entirely, to Dicey’s description. According to Professor Hayek, the generality, the equality, and the certainty of the law, as well as the fact that administrative discretion in coercive action, i.e., in interfering with the person and the property of the private citizen, must always be subject to review by independent courts, are “really the crux of the matter, the decisive point on which it depends whether the Rule of Law prevails or not.”4
Apparently, the theories of Professor Hayek and of Dicey coincide except for some minor details. Professor Hayek, it is true, emphasizes the difference between laws and orders in connection with the “generality” of the law and points out that the law must never concern particular individuals or be enacted when, at the moment of enactment, it can be predicted which particular individuals it will help or damage. But this may simply be considered as a special development of Dicey’s idea that the “rule of law” means the absence of arbitrary power on the part of the government. Equality, in its turn, is an idea embodied in the Dicean description of the second characteristic of the rule of law, that is, that every man, whatever his rank or condition, is subject to the ordinary law of the realm.
In this connection we must notice a difference between Dicey’s and Hayek’s interpretations of equality or at least of its application in some respects. Professor Hayek agrees with Sir Carleton Kemp Allen in reproaching Dicey for a “fundamental mistake” relating to the interpretation of the French droit administratif. Dicey, according to Sir Carleton and Professor Hayek, was wrong in believing that the French and generally the Continental droit administratif, at least in its mature stage, was a sort of arbitrary law because it was not administered by ordinary tribunals. According to Dicey, only ordinary courts, in England as well as in France, could really protect citizens by applying the ordinary law of the land. The fact that special jurisdictions, like that of the conseil d’état in France, were given the power of judging in cases where private citizens litigated with officials employed in the service of the state, appeared in the eyes of Dicey as a proof that the equality of the law towards all citizens was not actually respected on the Continent. Officials, when litigating in their official capacity with ordinary citizens, were “to some extent exempted from the ordinary law of the land.” Professor Hayek charges Dicey with having contributed a great deal to preventing or to delaying the growth of institutions capable of controlling, through independent courts, the new bureaucratic machinery in England because of a false idea that separate administrative tribunals would always constitute a denial of the ordinary law of the land and therefore a denial of “the rule of law.” The fact is that the conseil d’état provides ordinary citizens in France as well as in most countries of Western Europe with a fairly unbiased and efficient protection against what Shakespeare would have called “the insolence of office.”
Is it fair, however, to hold Dicey responsible for the fact that a process similar to that of the formation and functioning of the conseil d’état has not yet taken place in the United Kingdom” Perhaps what has hindered the development of an administrative court of appeals in England (which would correspond to the French conseil d’état or to the Italian consiglio di stato) is the fact, noticed by Allen, that in England “at the very mention of a “new-found halliday” not a few hands are at once thrown up in horror at a “foreign importation.”5 In fact, hostility toward un-British types of law and judicature is an old characteristic of the English people. The present inhabitants of the British Isles are, after all, the descendants of those who proudly proclaimed, many centuries ago, “nolumus leges Angliae mutari” (“we do not want any changes made in the laws of the Anglo-Saxons”). Dicey’s role in the resistance to the importation of Continental forms of law into England was a comparatively small one. Allen himself, while cautiously suggesting how to adopt new means to protect citizens against British bureaucracy, hastily adds that “nobody in his right mind proposes to imitate in England the conseil d’état and that people who still believe that “‘administrative law’ (if they will even permit the term) is the same thing as droit administratif are living in an age long past.”6
Incidentally, the amusing thing in this peroration by Sir Carleton is that he seems to imply here that “administrative law” is something much better than the foreign droit administratif, while at the beginning of his work he had reproached poor Dicey for his “complacent comparison with French administrative law,” that is, with “that remarkable jurisprudence, at all events in its modern developments,” and had charged Dicey with having “left the British public under the impression that the effect of administrative law in France was to place officials in a special privileged position rather than (as is the fact) to give the subject a large measure of protection against illegal state action.”7 One might add that this is a protection that the present English administrative law does not offer at all to the subjects of the British Crown because, as was pointed out recently by another English scholar, Ernest F. Row,
whereas the French administrative courts are courts and administer a perfect code of law by a perfectly definite procedure akin to that of the other courts, the new English system [that is, that bestowal on the executive of judicial functions that the former Lord Chief Justice of England used to qualify as “administrative lawlessness” and as the “new despotism”] is nothing of the kind, for by it these disputes between individuals and the government are settled by the government, itself a party to the dispute, in a purely arbitrary manner, according to no regular and recognized principles and by no clearly defined legal procedure.8
Dicey and Hayek apparently differ only slightly in their respective interpretations of equality as a characteristic of the rule of law. Both maintain that independent courts are essential in order to grant to the citizens equality before the law. A minor difference between the two interpretations of the functions of the courts seems to be that while Dicey does not admit the existence of two different judiciary orders, one to settle disputes between ordinary citizens only and one to settle disputes between ordinary citizens, on the one hand, and state officials, on the other, Hayek thinks that the existence of two different judiciary orders is not objectionable in itself, provided that both orders are actually independent of the executive.
Things are probably not so simple as Professor Hayek’s conclusion seems to imply. Of course, independent administrative tribunals are better than the simple bestowal of judiciary power on the executive in administrative matters, such as occurs in England today and, to a certain extent, in the United States as well. But the very presence of “administrative tribunals” gives added point to the fact (which Dicey disliked) that there is not one law for everybody in the country and therefore the equality of all citizens before the law is really not respected as it would be if there were only one law of the land and not also an administrative law side by side with the common law.
Dean Roscoe Pound pointed out in an essay cited by Professor Hayek9 that contemporary tendencies in the exposition of public law subordinate the interests “of the individual to those of the public official” by allowing the latter “to identify one side of the controversy with the public interest and so give it a great value and ignore the others.” This applies more or less to all kinds of administrative laws, whether they are administered by independent courts or not. A general principle that underlies all relations between private citizens and government officials acting in their official capacity is what the Continental theorists (like, for example, the German Jellinek or the French Hauriou or the Italian Romano) would call the status subjectionis of the individual in regard to the administration, and, correspondingly, the “supremacy” of the latter over the individual. State officials, as representatives of the public administration, are regarded as people having eminentia jura (pre-eminent rights) over other citizens. Thus, officials are entitled, for instance, to enforce their orders without any prior control whatever on the part of a judge over the legitimacy of these orders, whereas such a control would be prescribed if a private citizen demanded anything of another private citizen. It is true that Continental theorists admit as well that individuals have a right to personal liberty that limits the eminentia jura or, as they also say, the supremacy of the administration. But the principle of the supremacy of the administration is something that today qualifies the administrative law of all countries in Continental Europe and, to some extent, of all countries in the world.
It is exactly this principle that administrative tribunals take into account in judging controversies between private citizens and officials, whereas ordinary judges would consider all the private parties involved in a case as exactly on the same level. This fact, which has in itself nothing to do with the extent to which the administrative tribunals are independent of the executive or of state officials, is at the base of the existence of administrative tribunals as separate courts of judicature. Now, if we admit, with Dicey, that the only law to be taken into consideration in judging controversies between citizens (whether they are state officials or not) is one that is in accordance with the rule of law as Dicey conceives of it, his conclusion that a system of administrative courts (whether they are independent of the government or not) is to be avoided and that only ordinary courts are to be accepted is perfectly consistent.
Dicey’s conclusion may or may not be applicable to present circumstances, but it is a consequence of the principle of equality before the law, that is, of one of the principles implied by both his and Professor Hayek’s interpretation of the meaning of “the rule of law.”
In England, Dicey wrote,
the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts and made, in their personal capacity, liable to punishment or to the payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person.10
The situation described by Dicey in 1885 is certainly not that which prevails at the present time, for a typical feature of the new “administrative law” in England is the removal from the jurisdiction of the ordinary courts of many cases in which the executive is or may be itself one of the parties to the dispute.
Dicey cannot be justly criticized for his condemnation of administrative tribunals on the basis of a principle he has so clearly enunciated, viz., the universal subjection of all classes to one law. Otherwise we ought to conclude that while all men are equal before the law, some men are “more equal than others.”
In fact, we now know how far the interpretation of the principle of equality before the law can go in political systems in which the principle of the purely formal—nay, of the ceremonial—legality of any rule whatever, regardless of its content, has been substituted for the principle of the Rechtsstaat and, correspondingly, of “the rule of law” in its early meaning.
We can form as many categories of people as we want in order to apply the same laws to them. Within each category people will all be “equal” before the particular law that applies to them, regardless of the fact that other people, grouped in other categories, will be treated quite differently by other laws. Thus, we can create an “administrative law” before which all people grouped in a certain category defined in the law will be treated in the same way by administrative tribunals, and side by side with it we can recognize a “common law” under which people, grouped in other categories, will be no less equally treated by the ordinary courts. Thus, by a slight change in the meaning of the principle of “equality,” we can pretend to have preserved it. Instead of “equality before the law,” all that we shall have will then be equality before each of the two systems of law enacted in the same country, or, if we want to use the language of the Dicean formula, we shall have two laws of the land instead of one. Of course, we can, in the same way, have three or four or thousands of laws of the land—one for landlords, one for tenants, one for employers, one for employees, etc. This is exactly what is happening today in many Western countries where lip service is still paid to the principle of “the rule of law” and hence of “equality before the law.”
We can also imagine that the same courts are entitled to apply all these laws of the land equally to all those included in the categories concerned. This may still be called approximately “equality before the law.” But it is obvious that in such a case not everybody will receive equal treatment under the law of the land considered as a whole. For instance, in Italy, the third article of the constitution states that “all citizens are equal before the law.” In fact, however, there are laws that constrain landlords to keep tenants at a very low rent, notwithstanding previous agreements to the contrary, whereas other categories of people, who entered into contracts in other capacities than those of landlords or of tenants, are not interfered with by any special law and still may—nay, must—keep the agreements that they have made. We also have in my country other laws that constrain people to give away a part of their land for a compensation fixed by the government itself and which the proprietors think in many cases to be ridiculously low when compared with the market price of the land. Other people—for instance, owners of buildings, of business firms, or of securities—are still left free to do what they want with their property. The Italian Constitutional Court has held valid in a recent decision a law that entitles the government to pay a nominal price to proprietors expropriated by the land reform laws, on the ground that this price was fixed with regard to the common interest of the country (and, of course, it is very difficult to ascertain what the “common interest” is). Theorists could probably elaborate a series of principles to explain all this and speak, for instance, of a jus subjectionis of the landlords or of jura eminentia or supremacy on the part of the tenants and the government officials who fix the amount to be paid to the expropriated landlords. But things remain as they are: people are not equally treated by the law of the land considered as a whole in the sense intended by Dicey in his famous book.
The possibility of several laws valid at the same time for different classes of citizens in the same country, but treating them differently (the most common example is that of progressive taxation according to the citizens” income, which has already become a general feature of the fiscal policy of all Western countries) is related in its turn to the principle of the generality of the law. Indeed, it is not easy to establish what renders one law general in comparison with another. There are many “genera” under which “general” laws may be contrived, and many “species” which it is possible to take into consideration within the same “genus.”
Dicey considered “the legal spirit” a special attribute of English institutions. The whole British political system was based, according to him, on general principles resulting “from judicial decisions determining the rights of private persons in particular cases brought before the courts.” He contrasted this with what happens on the Continent (and, he might have said, in the United States as well), where “the security given to the rights of individuals results or appears to result from the general principles of the constitution,” emerging in its turn from a legislative act. Dicey explained with his usual lucidity what he meant by this:
If it be allowable to apply the formulae of logic to questions of law, the difference in this matter between the constitution of Belgium and the English constitution may be described by the statement that in Belgium individual rights are deductions drawn from the principles of the constitution, whilst in England the so-called principles of the constitution are inductions or generalizations based upon particular decisions pronounced by the courts as to the rights of given individuals.11
Dicey also stated that, although “this was, of course, a formal difference” of no moment in itself, great practical differences had been revealed by historical evidence relating, for instance, to the French Constitution of 1791, which proclaimed a series of rights, while “there never was a period in the recorded annals of mankind when each and all of these rights were so insecure, one might almost say completely nonexistent, as at the height of the French Revolution.” The reason for these differences between the English and the Continental systems was, according to Dicey, the lack of legal skill on the part of the legislators (and here Dicey seems to echo the well-known impatience of the English judges with the work of legislatures) required to contrive remedies to secure the exercise of rights on the part of the citizens. Dicey did not think that this skill was incompatible with written constitutions as such and declared with admiration that “the statesmen of America have shown unrivaled skill in providing means for giving legal security to the rights declared by the American constitutions,” so that “the rule of law was as marked a feature of the United States as of England.”12 According to Dicey, the exercise of the rights of the individual under the English constitution was more certain than the exercise of similar rights under Continental constitutions; and this “certainty” was mainly due to greater legal skill on the part of the English-speaking people in contriving remedies connected with these rights.
Certainty is a feature that Professor Hayek also emphasizes in his recent analysis of the ideal of “the rule of law.” He conceives it in a way that is only apparently different from that of Dicey, although this difference may be very important in some respects.
According to Professor Hayek,13 the certainty of the law is probably the most important requirement for the economic activities of society and has contributed much to the greater prosperity of the Western world as compared with the Orient, where the certainty of the law was not so early achieved. But he does not analyze what the term “certainty” properly means when referred to the law. This is a point that needs to be dealt with very accurately in a theory of “the rule of law,” although neither Dicey nor Professor Hayek nor, for that matter, most other scholars enter very much into this matter. Different meanings of the expression “the certainty of the law” may be at the very foundation of most of the misunderstandings between Continental and English scholars relating to the rule of law and to apparently similar concepts like those of written constitutions, Rechtsstaaten, etc. Dicey did not have a completely clear conception of what the “certainty” of the law meant for him when he described the main features of the rule of law. Apparently, this fact is connected with the absence of written—and therefore, in a way, of certain—rules in the English traditional common law, including constitutional law. If certainty were connected only with written rules, neither the common law nor that part of it that can be called constitutional law would be certain at all. In fact, many of the recent attacks on the “uncertainty” of case law on the part of English-speaking and particularly of American lawyers and political scientists belonging to the so-called realistic school are based on a meaning of the term “certainty” that implies the existence of a definitely written formula the words of which ought not to be changed at will by the reader. This impatience with unwritten law is an outgrowth of the increasing number of statutes in contemporary legal and political systems and of the increasing weight that has been given to statutory law as compared with case law (that is, with the unwritten law) in England as well as in other countries of the British Commonwealth and in the United States of America.
The certainty of the law is connected with the idea of definitely written formulae, like those that the Germans would call Rechtssaetze, also in the meaning Professor Hayek gives to the word “certainty” in his lectures on the rule of law. He declares that even “the delegation of rule-making to some kind of nonelective authority need not be contrary to the rule of law so long as this authority is bound to state and publish the rules in advance of their application. . . .” He adds that “the trouble with the widespread modern use of delegation is not that the power of making general rules is delegated, but that authorities are in effect given power to wield coercion without rule, because no general rule can be formulated for the exercise of the powers in question.”14
There is a sort of parallelism between what, according to Professor Hayek, is immaterial in relation to administrative law or administrative courts and what is really essential for him in the concept of “certainty.” What matters for him is that administrative law be administered by independent courts, regardless of the fact that there is something peculiar called “administrative law” and no matter whether the courts administering it are special courts or not. In a similar way, Professor Hayek believes that no serious inconvenience can arise from the fact that rules are issued by parliaments or by some delegated authority, provided only that those rules be general, clearly stated, and published in advance.
General regulations laid down in due time and made known to all citizens make it possible for them to foresee what will happen on the legal stage as a consequence of their behavior, or, to use the words of Professor Hayek: “as a general rule, circumstances which are beyond his [the individual’s] field of vision must not be made a ground for his coercion.”
This is surely a classic interpretation of the certainty of the law. One can also add that it is probably the most famous one, for it has received many celebrated formulations since the days of ancient Greek civilization, as some quotations from the Politics and the Rhetoric of Aristotle could easily prove. When that philosopher praises the government of laws, he very probably has in mind those general rules, known in advance to all citizens, which were written in his day on the walls of public buildings or on special pieces of wood or stone, like the kurbeis that the Athenians used for that purpose. The ideal of a written law, generally conceived and knowable by every citizen of the small and glorious towns scattered all along the coasts of the Mediterranean Sea and inhabited by people of Greek descent, is one of the most precious gifts that the fathers of Western civilization have bequeathed to their posterity. Aristotle knew well the harm that an arbitrary, contingent, and unpredictable rule (whether a decree approved by the mob in the Athenian agora or the capricious order of a tyrant in Sicily) could cause to ordinary people in his day. Thus, he considered laws, that is, general rules laid down in terms that were precise and knowable to everybody, as an indispensable institution for citizens who were to be called “free,” and Cicero echoed this Aristotelian conception in his famous dictum in the oratio pro Cluentio: “omnes legum servi sumus ut liberi esse possimus” (“we must all obey the law if we are to remain free”).
This ideal of certainty has been implanted and reinforced in the European Continent through a long series of events. Justinian’s Corpus Juris Civilis was for several centuries the very book in which the ideal of the certainty of the law, understood as the certainty of a written law, appeared to be embodied, in the Latin as well as in the German countries. This ideal was not repudiated, but was even emphasized, in the seventeenth and eighteenth centuries in Continental Europe, when the absolutistic governments, as the late Professor Ehrlich has pointed out in his brilliant essay on legal reasoning (Juristische Logik), wanted to make sure that their judges did not alter the meaning of their rules. Everybody knows what happened in the nineteenth century in Continental Europe. All the European countries adopted written codes and written constitutions, accepting the idea that precisely worded formulae could protect people from the encroachments of all possible kinds of tyrants. Governments as well as courts accepted this interpretation of the idea of the certainty of the law as the precision of a written formula laid down by legislatures. This was not the only reason why Continental Europe adopted codes and constitutions, but it was at least one of the main reasons. In brief, the Continental idea of the certainty of the law was equivalent to the idea of a precisely worded, written formula. This idea of certainty was to a great extent conceived as precision.
Whether this is actually the notion that the English people had of the certainty of the law and whether this idea was actually implied in their ideal of “the rule of law” is not clear at first sight. We shall return to this question a little later.
The Greek or Continental notion of the certainty of the law actually corresponds to the ideal of individual liberty formulated by the Greek authors who speak of government by the laws. There is no doubt that government by the laws is preferable to government by decrees of tyrants or of the mob. General laws are always more predictable than particular and sudden orders, and if the predictability of the consequences is one of the unavoidable premises of human decisions, it is necessary to conclude that the more that general rules render predictable, at least on the legal plane, the consequences of individual actions, the more these actions can be called “free” from interference on the part of other people, including the authorities.
From this point of view, we cannot help admitting that general rules, precisely worded (as they can be when written laws are adopted), are an improvement over the sudden orders and unpredictable decrees of tyrants. But unfortunately, all this is no assurance that we shall be actually “free” from interference by the authorities. We can set aside for the moment the questions arising from the fact that rules may be perfectly “certain” in the sense we have described, that is to say, precisely formulated, and be at the same time so tyrannical that nobody can be said to be “free” by behaving according to them. But there is another inconvenience that also results from adopting such general written laws, even when they do allow us considerable “freedom” in our individual behavior. The usual process of law-making in such cases is by way of legislation. But the legislative process is not something that happens once and for all. It takes place every day and is continually going on.
This is particularly true in our time. In my country the legislative process now means about two thousand statutes every year, and each of them may consist of several articles. Sometimes we find dozens or even hundreds of articles in the same statute. Quite frequently one statute conflicts with another. We have a general rule in my country that when two particular rules are mutually incompatible because of their contradictory content, the more recent rule abrogates the old one. But, according to our system, nobody can tell whether a rule may be only one year or one month or one day old when it will be abrogated by a new rule. All these rules are precisely worded in written formulae that readers or interpreters cannot change at their will. Nevertheless, all of them may go as soon and as abruptly as they came. The result is that, if we leave out of the picture the ambiguities of the text, we are always “certain” as far as the literal content of each rule is concerned at any given moment, but we are never certain that tomorrow we shall still have the rules we have today.
This is “the certainty of the law” in the Greek or Continental sense. Now I would not go so far as to say that this is “certainty” in the sense that one requires in order to foresee that the result of legal actions taken today will be free from legal interference tomorrow. This kind of “certainty,” so much praised by Aristotle and by Cicero, has, in the last analysis, nothing to do with the certainty we should need to be actually “free” in the sense meant by these old and glorious representatives of our Western civilization.
However, this is not the only meaning of the expression “the certainty of the law” as used and understood in the West. There is another meaning that is much more in accord with the ideal of “the rule of law” as it was conceived by the English as well as the American people, at least in the times when “the rule of law” was an ideal undoubtedly connected with individual freedom understood as freedom from interference on the part of everybody, including the authorities.
[1 ] F. A. Hayek, The Political Ideal of the Rule of Law (Cairo: Fiftieth Anniversary Commemoration Lectures, National Bank of Egypt, 1955), p. 2. Virtually the entire substance of this book has been republished in The Constitution of Liberty by the same author.
[2 ] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th ed.; London: Macmillan, 1915), p. 185.
[3 ] Ibid., p. 191.
[4 ] F. A. Hayek, op. cit., p. 45.
[5 ] Carleton Kemp Allen, Law and Orders (London: Stevens & Sons, 1956 ed.), p. 396.
[6 ] Ibid., p. 396.
[7 ] Ibid., p. 32.
[8 ] Ernest F. Row, How States Are Governed (London: Pitman & Sons, 1950), p. 70. For the situation in the United States, see Walter Gellhorn, Individual Freedom and Governmental Restraints (Baton Rouge: Louisiana State University Press, 1956) and Leslie Grey, “The Administrative Agency Colossus,” The Freeman (October, 1958), p. 31.
[9 ] F. A. Hayek, op. cit., p. 57.
[10 ] Dicey, op. cit., p. 189.
[11 ] Loc. cit.
[12 ] Ibid., p. 195.
[13 ] F. A. Hayek, op. cit., p. 36.
[14 ] Ibid., p. 38.
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