Notes:Bcat1.Notes for 'Rule of Law'

2014/08/02 User:BcatOne

This page is currently a set of notes to guide the writing of an article on the meaning of the 'rule of law'. This is a subject on which many articles can be written.

The Role of Law

There has been, and is, since the time of Aristotle, a disagreement about the basis of the rule of law which is "government by laws and not by men" Most of the notes below are quotes from The Constitution of Liberty Ch10
Points to make:

• "The rule whereby the indivisible border line is fixed within which the being and activity of each individual obtain a secure and free sphere is the law."
• Law is the "science of liberty".
• The difference between commands and laws: as we move from commands to laws, the source of the decision on what action is to be taken shifts progressively from the issuer of the command or law to the acting person.
  • The ideal law provides merely additional information to be taken into account in the decision of the actor.
• Compared with the laws of a society based on individual freedom, the rules of conduct of a primitive society are concrete. They not only limit the range within which the individual can shape his own action, they prescribe specifically how he must proceed to achieve particular results, or what he must do at particular times and places.
  • Muslim societies. Or any religion based societies. Early American colonies had some such rules.
• The conception of freedom under the law of chief concern to us rests o nthe contention that when we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free.
  • Law must apply equally to all. Laws must be general rules that apply equally to everybody.
  • A true law must not name any particulars, nor should especially single out any specific persons or group of persons.
    • This requirement of generality does not mean that special rules can not apply to different classes of people if they refer to properties that only some people possess. (Only a woman can be raped in the classic sense.)

Such distinctions will not be arbitrary as long as they are equally recognized as justified by the people both inside and outside the classification.

When it is favored only by those inside the group - it is privilege. When favored only by those outside - it is discrimination.

154-155

• Even with these restrictions, it is possible to have general, abstract rules that apply to everyone that are also restrictive of liberty. But such a thing is unlikely. The chief safeguard is that the rules must apply to those who make them and to those who apply them - to the government as well as the governed - and that nobody has the power to grant exceptions.
  • Religion based societies are an exception. The leaders of a sect may well want to enforce certain norms and behaviors that others find restrictive or coercive.
• Where men's actions toward others are concerned, freedom cannot mean more than that they are restricted only by general rules. Since there is no kind of action that may not interfere with another person's protected sphere, neither speech, nor the press, nor the exercise of religion can be completely free. In such cases, freedom means and can only mean that what we may do is not dependent o the approval of any person or authority and is limited only by the same abstract rules that apply equally to all.
  • If it is the law that makes us free, this is true only of the law in this sense of abstract general rule, which differs from law in the formal sense b the character of the rules and not by their origin. The "law" that is a specific command, an order that is called a "law" merely because it emanates from the legislative authority, is the chief instrument of oppression.

The confusion of these two conceptions of law and the loss of the belief that laws can rule, that men in laying down and enforcing laws in the former sense are not enforcing their will, are among the chief causes of the decline of liberty, to which legal theory has contributed as much as political doctrine.

• Here is a contrast between the two conceptions of law:
  • The classic view expressed by Chief Justice John Marshall: "Judicial power, as contradistinguished from the power of laws, has no existence, Courts are mere instruments of law, and can will nothing."
  • The progressive view stated by Justice Holmes that "general propositions do not decide concrete casers."
    • and by a contemporary political scientist: "The law cannot rule. Only men can exercise power over other men. to say that the law rules and not men, may consequently signify that the fact is to be hidden that men rule over men." (156 very important)

• (159) The enemies of liberty have always based their arguments on the contention that order in human affairs requires that some should give orders and others obey. Much of the opposition to a system of freedom under general laws arises from the inability to conceive of an effective co-ordination of human activities without deliberate organization by a commanding intelligence. One of the achievements of economic theory has been to explain how such a mutual adjustment of the spontaneous activities of individuals is brought about by the market, provided that there is a known delimitation of the sphere of control of each individual. An understanding of that mechanism of mutual adjustment of individuals forms the most important part of the knowledge that ought to enter into the making of general rules limiting individual action.
• The orderliness of society shows itself in the fact that the individual can carry out a consistent plan of action that, at almost every stage, rests on the expectation of certain contributions from his fellows. "That there is some kind of order, consistency and constancy, in social life is obvious"
  • Order with reference to society thus means that individual action is guided by successful foresight, that people not only make effective use of their knowledge but can also foresee with a high degree of confidence what collaboration they can expect from others.
  • 160!!
  • 161: . . the task of the lawgiver is not to set up a particular order buy merely to create conditions in which an orderly arrangement can establish and ever renew itself.

Origins of the Rule of Law

162-163:

Heritage of the Middle Ages

17th Century England

164-165

4th century Athens

Liberty in the sense of individual liberty was understood in 4th century BC Athens.

Isonomia / Isonomy

"equal laws for the noble and the base"

contrasted with the arbitrary rule of tyrants.

different from democracy. "in a democracy the laws should be masters."

interesting quotes from Aristotle

from Politics

condemns the kind of government in which "the people govern and not the law"

"for when government is not in the laws, then there is no free state, for the law ought to be supreme over all things."

A government that "centers all power in the votes of the people cannot, properly speaking, be a democracy: for their decrees cannot be general in their extent."

from Rhetoric

It is of great moment that well drawn laws should themselves define all the points they possibly can, and leave as few as possible to the decision of the judges, [for] the decision of the lawgiver is not particular but prospective and general, whereas members of the assembly and the jury find it their duty to decide on definite cases brought before them."

The modern phrase "government by laws and not by men" derives directly from the statements of Aristotle

Thomas Hobbes believed that it was "Just another error of Aristotle's politics that in a well-ordered commonwealth not men should govern bu the law." James Harrington retorted that "the art whereby a civil society is instituted and preserved upon the foundations of common rights and interes . . [is], to follow Aristotle and Livy, the empire of laws, not of men."

The fight against Privilege

This dates from the struggle of the plebeians against the patricians in 4th century Roman Republic. The Laws of the Twelve Tables that is the basis of the constitution of the Roman Republic had as its first public law that

no privileges, or statutes shall be enacted in favour of private persons, to the injury of others contrary to the law common to all citizens, and which individuals, no matter of what rank, have a right to make use of.

166:

Cicero and Tacitus became the chief authors through whom the classical tradition of the spirit of the laws of free Rome spread. Cicero became the main authority for modern liberalism, and we owe to him many of the most effective formulations of freedom under the law. To him is due the conception of general rules (leges legum) which govern legislation, the conception that we obey the law in order to be free, and the conception that the judge ought to be merely the mouth through whom the law speaks.

Cicero shows that during the classical period of Roman law it was fully understood that there is no conflict between law and freedom and that freedom is dependent upon certain attributes of the law, its generality and certainty, and the restrictions it places on the discretion of authority.

167: This classical period was also a period of complete economic freedom, to which Rome largely owed its prosperity and power. From the 2nd century A.D., however, state socialism advanced rapidly. . . .

State of Rule of Law Today

(Read pages 142 - 150 of Channing Vol 3 as a muse)

---