Hayek, Law, Legislation and Liberty, vol. 1, pp 1-99.
Two Approaches: Top Down and Bottom Up.
Great emphasis is laid by Rousseau and others in the social contract tradition on the role of legislation. People choose their legislators, and the legislators choose the law, which is then imposed upon the people as a whole. This view is the direct descendant of the Hobbesian view of law as the command of the sovereign. Popular sovereignty does not change this picture: it simply affirms that the thing that issues the command, and the thing that obeys it, are one and the same, namely the people. The resulting approach to law has a ‘top down’ character: the validity of any particular judgement is established by showing it to be a deduction from a command issued by the sovereign.
It doesn’t follow from this that anything can be a law. There may be principles limiting the sovereign’s right to make laws. Medieval thinkers saw the natural law (see below) as setting such limits: anything in conflict with natural law was not a law and therefore not a possible command of the sovereign. (That view originates in St Augustine, and is developed by Aquinas in the Summa.) Others assign this role to the constitution, or to procedural constraints. Nevertheless the ‘top down’ picture seems to give considerable liberty to the legislator, and reinforces the belief that if something is a law it is because someone with the authority to do so has declared it to be a law.
The top down picture is more appropriate to continental legal systems, based on written statutes. Many of these are derived, directly or indirectly, from Roman law. And some of the distinctions between Anglo-American and continental conservatism derives from the rival systems of law which have created rival background conditions to political life.
The English common law places its emphasis on the judge rather than the legislator. The law is not imposed but discovered, and it is discovered in the particular case. The judge is looking for the just solution to a conflict, and the law that he or she discovers is contained in the ratio decidendi (the reason for the decision) in the particular case. This creates a precendent to be followed, and this following of a precedent is what the law consists in. Laws are passed up to higher courts which either affirm or overrule them. But in any question as to what the law is, it is for the courts to decide, and the ultimate grounds for their decision are contained in those original judicial discoveries through which conflicts have been resolved.
People brought up in the common law system have no difficulty understanding law as something independent of the sovereign and existing prior to legislation. This is what has enabled the English to go on for ten centuries without a constitution – that the law stands above the sovereign, who is answerable to it.
Like morality, the common law builds upwards from the particular to the general. The abstract rigour of civilian (i.e. Roman-law) systems is no guarantee of their justice. For justice is done in the particular case, and until tried in the courts abstract principles have no more authority than the people who declare them.
This is particularly obvious if we attend to civil law – the area in which the English legal system has excelled. When one person has a complaint against his neighbour and applies to the judgement of a court, he is seeking a remedy. The facts of the case may never have been considered before, and the judge may have no explicit rule of law, no precedent, and no Act of Parliament to guide him. But still there is a difference, the common law says, between a right and a wrong decision. Thus it was, for example, in the leading case of Rylands v Fletcher (1865) in the law of tort. The defendant was a mill-owner who had constructed a reservoir on his land. The water burst through old mine shafts into the mines of the plaintiff, which were thereby flooded and put out of use. No similar case had come before the courts, yet clearly there were questions of right and liability to be decided. The Court of Exchequer Chamber gave judgment in the following words of Mr Justice Blackburn: ‘We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape’. This rule, the judge added, ‘seems on principle just’.
Until Rylands v Fletcher, however, no such rule had ever been formulated. The facts of the case arose in the context of new industrial activities, generating conflicts that had not been tried at law. Did Mr Justice Blackburn merely invent the rule, therefore? If he did, then Mr Fletcher was penalised by an act of retroactive legislation – in other words, by the invention of a law of which he could have had no prior knowledge. Surely that would be a flagrant injustice. But notice the judge’s words: ‘We think that the true rule of law is…’. In other words, in Blackburn’s own eyes, he was not inventing the rule, but discovering it. And such was the opinion of the House of Lords, in upholding his judgment. The common law was based on the assumption that there is a law governing each judiciable conflict, and that its right application will provide a remedy to the person who is wronged, and a penalty to the person who has wronged him. The business of the judge is to discover that law and apply it in the given case. He may do this as Mr Justice Blackburn did, by explicitly formulating the law and then bringing it to bear on the particular facts. Or he may merely apply the law, without saying what it is, in which case those judges who are bound by his decision must search for the ratio decidendi of the case. A higher court may decide that a case was rightly decided, while disapproving the ratio decidendi – implying therefore that the law has been wrongly described. A lower court may refuse to follow a precedent by arguing that the facts of the case before it are sufficiently distinct to imply that the law which decided the precedent cannot safely be applied. And so on. All these legal manoeuvres assume that the common law is a process of discovery, not invention, and that what is discovered is the just solution to the conflict.
Dworkin on Hard Cases.
The argument of ‘Hard Cases’ is worth consulting here, since it shows another aspect of the common law, namely its ability to reach decisions in hard cases, where a statute is in conflict with itself, or insufficiently defined. Dworkin makes the point that the judge cannot think of himself, in these cases, as inventing the law. For not only would that make him into an unelected and unaccountable legislator. It would also violate the principle that there shall be no retroactive legislation: a principle that some people think of as a tenet of natural justice (see below). For the offence committed, or the act complained of would, on this view, have been committed before the law under which it is judged; in which case the agent could not have had advanced notice of the law, and therefore could not have amended his conduct in order to obey it. There are examples of retroactive legislation in Anglo-American law, but they are in the nature of the case exceptional.
Dworkin believes that hard cases compel us to distinguish rules of law from principles, and that these principles, which settle the case even when there is no rule that applies to it, are the foundation of judicial reasoning. He sometimes argues as though these principles are enshrined in the Constitution, but seems to overlook the fact that his cases are cases of English courts, and that the UK has a constitution only in the sense that it has settled procedures for the functioning of the offices of state. There is a covert political motive here: Principles enshrined in a Constitution and vested in the Supreme Court are open to interpretation in a political interest, specifically the liberal interest that is expressed in Law’s Empire. Procedures which are inherent in adjudication as such – of the kind referred to by Hayek (see below) – are not so easily made hostage to the political process.
One question: granted that the judge cannot think that he is inventing, rather than discovering the law, could it not be that nevertheless he is inventing it. There is a quasi-realist position in ethics that holds that, while we invent our moral principles, we can do so only if we believe that we are discovering them. Could that apply in the legal case too?
Hayek on Law and Legislation.
For Hayek the distinction between law and legislation parallels that between planned economies and market economies, between imposed order and ‘spontaneous order’. His preference for common law over legislation is based on the the broadly epistemological argument, that the information needed to solve large coordination problems exists only in the workings of a spontaneous order, and cannot be extracted or embodied in a plan. He sees legislation as inherently destructive, since it threatens its own information base, by overriding the process of judgement.
The idea seems to be this: legal decisions are rational to the extent that they contain the solution to the conflicts that call for them. This solution is discerned by the impartial judge in the particular case, and arises because he discerns the principles on which the parties themselves have implictly relied, in conducting their business. The resulting law – the generalisation from the ratio decidendi – feeds into the cumulative process whereby the expectations of agents adjust to each other, and rules of coordination emerge. This resembles the market process, in two respects: the outcome (a system of civil law) is the unintended consequence of a myriad particular decisions, and the information required for rational conduct is contained in the developing body of law (in something like the way that the information required for rational working of a market is contained in the prices of goods under free exchange). The judge, examining the specific case, attempts to find the rule that will settle it. According to Hayek, such a rule is part of a network of abstract rules, all of which are implicitly counted upon by those who engage in free transactions. The judge rightly thinks of himself as discovering the law, for the reason that there would be no case to judge, had the existence of the relevant law not been implicitly assumed by the parties.
(Note: The word ‘abstract’ is unclear in Hayek. For most purposs you could interpret it as meaning ‘non-instrumental’. But the implied contrast with ‘concrete’ is very misleading.)
Law is like custom and tradition, in providing diachronic solutions to the information needs of a great society – i.e. knowledge accumulated over time, that distils the experience of countless people in formulae that can be applied here and now by you and me. (Cf. again the synchronous concentration of multiple experiences and desires in prices.) Hayek discerned the same danger in legislation as he discerned in socialist planning: it involves consciously taking control of a situation that we cannot actually control. Legislative solutions are as likely to create conflicts as to resolve them, and they also undermine the rule of law by making judges, who are the guardians of the law, the tools of politicians. The legislator sees law as a human artefact, created for a purpose, and may endeavour to use law not merely to rectify injustices but also to bring about a new social order, in conformity with some ideal or plan. There is nothing to prevent such a legislator from passing laws that fly in the face of justice, by granting privileges, confiscating assets and extinguishing deserts in the interests of some personal or political agenda. One sign of this is the adoption of ‘social justice’ in the place of plain justice, as the goal of law. For Hayek justice is an attribute of human conduct, and the attempt – inherent in the concept of ‘social’ justice – to apply the concept to a state of affairs, without any reference to the human actions that produced it, does violence to our understanding of responsibility and choice. The goal of the common law is not social engineering but justice in the proper sense of the term, namely the punishment or rectification of unjust actions.
This is a theme to take up again next time, when we discuss justice. For the moment we need to ask ourselves how plausible is the Hayekian criticism of legislation? Is not legislation necessary, once societies evolve beyond the point in which custom suffices to govern them? Do we not need legislative solutions to problems caused by externalities, by the social upheavals of the modern world, by the development of new instruments of social interaction? No says Murray Rothbard (in defence of anarcho-capitalism). Hayek is inclined to agree with him. He was strongly influenced by the abuse of legislation by the Nazis: common law justice, he believed, could never have generated the Nuremberg laws. (Cf. Somersett’s case.) However, there is something over-stated in all this.
Hayek’s argument recalls the philosophy of natural law. Roman lawyers, influenced by the stoics, developed two categories of law which were to apply universally: the ius gentium (law of peoples) and the ius naturalis. The first applied to all subject people, whether or not Roman citizens; the second was a kind of rationalization of the first, which purported to describe the law that lies ‘in the nature of things’, and which can be discerned by the rational intellect from whatever social premises. The two systems coincided, except that the natural law did not recognize slavery. Christianity quickly took up the natural law, and made manumission into a sacred duty: not surprisingly the religion spread rapidly among slaves, somewhat less rapidly among those who owned them.
Most medieval philosophers made room for the natural law, though accounts of what it actually says are fairly thin. It seems to comprehend the foundations of criminal law (forbidding murder, violence, theft etc.) and the basic principles of contract (agreements must be upheld, etc.); maybe it contains the fundamentals of common-sense morality; perhaps the principles of judicial reasoning that would enable a common-law system to develop. Two theories of natural law emerged in the Middle Ages: (1) that it is an expression of God’s will and validated by revelation; (2) that it is an objective system of law, discernible by reason, which would be binding on human beings even if God had not spoken in the matter. That second conception, which is present in Aquinas, is given fresh impetus in Kant’s theory of the categorical imperative which, on one interpretation, is a non-theological exposition of natural law.
Natural law theories figure prominently in certain forms of conservatism, and they serve a function similar to the common-law theory of Hayek. Natural Law is invoked in order to lay down limits to legislation. Aquinas (following Augustine) went so far as to argue that a legislator who violates natural law has not succeeded in making a law: in other words, the natural law is a comprehensive test that all legislation must pass if it is to be genuine law (as opposed to an oppressive edict). A yet stronger position holds that legislation is valid only if deducible from, in other words a part of, natural law.
Aquinas’s motives are not so far from those of Mill in On Liberty – even though it is not liberty that primarily concerns him. He wishes to set limits to legislation, to argue that some matters, and some political goals, are outside the reach of law, and that each of us, as a rational being, is able to distinguish legitimate from illegitimate law. For example, a law forbidding something that is willingly done by all participants, which produces no harm to them or to anyone else, would be illegitimate for Mill; one that authorised slavery or genocide would be illegitimate for Aquinas.
The two approaches come together in the concept of ‘natural rights’. One way of expressing the natural law idea is to say that we all have natural rights (or ‘human rights’ as they are now known), and that a law that violates these rights is illegitimate. This doctrine is now a commonplace, accepted by most conservatives, though with some reservations (see below). This would be the preferred way to convey both what Mill is getting at, and what Aquinas is getting at. They are both urging us to see law as a device for protecting our natural rights (and therefore liberties), which loses its claim to obedience as soon as it begins to invade rights rather than protecting them.
One problem that arises here is: exactly which rights are natural rights, and how do you know? Kant has an answer to this (the categorical imperative and all that follows from it). But most politicians who play with the idea of human rights seem to add to the list promiscuously, and without any obvious method. Hence we get the rights to health, education, equal treatment, respect, property, child-bearing, sexual fulfilment, peace and quiet, and just about anything else that people desire, affirmed as natural rights. It is arguable that more problems have been created than solved by this way of thinking.
Natural rights are contrasted with conventional or positive rights: rights specified by a ‘positive law’, i.e. a law laid down by some legislative body, rather than discovered through pure rational reflection. Legal positivism is the view that all law is positive law, common law included, and that natural law is at best a philosophical commentary on the law, and not a genuine system of law. Jeremy Bentham defended legal positivism on the grounds that laws must be justified by their utility, and not by abstract metaphysical principles. He famously dismissed the idea of natural rights as ‘nonsense on stilts’. The only rights that exist, he argued, are those specified in a legal code, and which can be sued for in open court. (See The Principles of Law and Legislation.)
Why should you think of common law as positive law? Because it is really, the positivists say, an application of a more general principle of positive law, that what is decided by the courts will be enforced by the sovereign. It is the sovereign’s decision to enforce a rule that makes it into a law, not the process whereby that rule is decided, discovered or whatever. This positivist conception was very influential among utilitarians like Bentham, and also among German-language theorists like Kelsen, who saw it as a necessary part of any attempt to move the legislature in a socialist direction. Socialist schemes, which involve massive interference in rights of property, free association, and contract, have a tendency to contravene natural law, as traditionally understood. And that is one reason why so many conservatives, at a certain point, defended natural law as the foundation of legal order. But there is a difficulty in depending too much on natural law. Principles of natural law are by their nature of universal application and validity: they do not make reference to a particular historical community or nation, and seem of their own accord to propel us towards the kind of ‘universalism’ that is more characteristic of liberal than of conservative thinking. Conservatism wishes to see the law as bound up with custom, tradition and indigenous institutions of sovereignty. In other words, it resists the idea that law can be detached from the historical community in which it has emerged, and one of the reasons for valuing common law is precisely that the customs and traditions of the community are reflected in and endorsed by it. This is one of the points at which conservatism comes up against ‘Enlightenment universalism’: conservatives want to retain what is best in the Enlightenment, while being suspicious of the openings that it creates, for a liberal reformist politics, in which nothing of the past is treated with special favour.
There is another aspect of natural law, however, which has found favour in conservative circles, and this is the idea of natural justice. According to this idea justice is fundamentally a procedural notion, so that a verdict is just if the procedures of ‘natural justice’ have been adhered to. The rules of natural justice derive from early formulations in the Roman Law, and also from St Augustine. These rules include the following common sense provisions: no-one can be a judge in his own cause; hear the other side; everyone has a right of defence. Such rules of natural justice are recognized in Anglo-American systems of law as creating grounds for action. Breaches of natural justice are grounds of appeal, both to a higher court, and also from tribunals and other quasi-judicial bodies, to a true court of law. Natural justice is the first casualty of revolutions, in which the law very quickly becomes an instrument for confirming pre-established decisions to imprison or execute people, rather than the procedure through which they may vindicate themselves. Natural justice is sometimes contrasted with social justice, in which the concept of justice is used to describe ideal outcomes, rather than inherently rational procedures. This we will discuss next time.
The Rule of Law.
A favourite conservative cause, shared by most liberals, but not always defined with the clarity that it needs. Here is my dictionary entry on the topic:
rule of law. The form of government in which no power can be exercised except according to procedures, principles and constraints contained in the law, and in which any citizen can find redress against any other, however powerfully placed, and against the officers of the state itself, for any act which involves a breach of the law.
The rule of law is an artefact, and the fundamental search involved in modern theories of *constitution is for the conditions which make it possible. It is obviously not enough for a constitution to declare that the law is supreme; it must also be possible for any citizen, however placed, to enforce that law. This suggests *judicial independence as a minimum requirement, at least if the law is to be enforced against the state. But that notion involves paradoxes, as does the idea of a *separation of powers upon which it is founded. In the end it is the state that controls the appointment and dismissal of judges, as it is the state that makes and revises the law.
In conditions of social collapse, or widespread terror and intimidation, a rule of law will no longer be possible; hence a rule of law also requires laws of *sedition and public order through which it may be upheld against the busy subversion of the lawless. This leads to a further paradox, noted by *Machiavelli, namely that a law of sedition must be as determined and as violent as the forces which it may need to overcome, and, since these include the extremes of military violence, it must itself be prepared to resort to extremes (although not to the same extremes, since that would be tantamount to permanent civil war). This means, in effect, that the rule of law must be prepared to disregard *natural justice and judicial procedure while combating some types of offender. At the same time, it must in other cases give untrammelled freedom to judicial procedure, and to the natural justice which, on one plausible view, is repeatedly invoked in it. So that the rule of law is itself indebted to the violence that it seeks to condemn.
The rule of law should not be confused with rule by means of law. Tyrants can govern their subjects entirely by laying down laws. But there is a rule of law only if the tyrant is himself subject to the law – though not necessarily subject in the same way. Single-party government on the Soviet model was in many ways the opposite of the rule of law, since the entity that governed (the communist party) could not be brought before a court of law, and indeed had no legal identity – it hid always behind Potemkin associations. Conservatives often argue that socialism will always involve breaches in the rule of law, since judicial independence will give rights and powers to the ordinary citizen that no planned economy can tolerate. There are many issues here:
– laws must be properly announced, without vaguenesses, and applied by independent courts.
– laws must be changed by a transparent procedure, which enables the outcome to be foreseen.
– those who make, apply and enforce the law must also be subject to it.
The last condition is difficult: in almost every system lawmakers and presidents have legal immunities, without which they could not effectively carry out their functions. But it is important that these are immunities, specified and upheld by the law, and not arbitrary exemptions.
One aspect of the law that has been of great interest to conservatives is the law of corporations. Legal personality means the competence to stand before a court of law so as to sue for your rights or be compelled to your duties. The Roman law extended personality to corporations – distinguishing the societas, which is defined by a contract among its members, from the universitas, which is a genuinely independent legal agent. (This is how we got our word ‘university’.) Conservatives are apt to argue, with Hegel, that the legal personality of corporations is a reflection of their antecedent moral personality. They are the entities that define our loyalties, our membership, and our sense of continuity – since they outlast us and bear the mark of the contributions made from one generation to the next. (Needless to say, it is not the business corporation that has been chosen as the paradigm, but entities like churches, teams, universities, schools – what Burke called the ‘little platoons’ of civil society. Recently, however, Michael Novak has taken the business corporation as a paradigm of both free association and moral personality.) On the conservative view, therefore, corporate personality is the public aspect of a deep moral fact, which is the union of people in a shared membership, and one in which the whole achieves an identity that is not reducible to the sum of its parts.
This is a point that needs putting carefully: to some philosophers (John Finnis e.g.) it has seemed like a violation of natural law to allow corporations to enjoy a fully fledged moral personality: one that could take precedence over the rights and claims of individuals. However, there is a continuous thread in conservative thinking which sees corporations as the things most in need of protection by the law, since they are the forms of social membership. This view was expressed very differently by Burke, Hegel and de Maistre.
The English common law, incidentally, developed a completely novel way of representing and protecting the interests of associations, and that was through equity and the law of trusts. This fed into conservative thinking with Burke, who conceived government on the conservative model as a form of trusteeship. It was also given prominence by one of the most under-estimated of conservative thinkers of the early 20th century, F.W. Maitland.
One very important point: totalitarian government destroys all forms of corporate personality, replacing them with self-serving fictions of its own. This has been the major source of the problems of post-communist societies in Europe – namely, the attempt to build a society of civil associations from scratch. Again socialist movements have shown themselves disrespectful of institutions and corporations – and not only of businesses. Here is an important area that we will revisit when we talk about Oakeshott. Socialists see institutions in instrumental terms: they have functions, and are the means to fulfil those functions. If they are in conflict with the over-arching goal of government – which is social justice or social equality – then there is no inherent reason to respect them. Indeed, there is every reason to dissolve them. For they do not have rights of their own.
European conservatives have objected to this on two grounds: first, that corporations do have rights, in law and also morally; secondly that the instrumental view of associations and institutions misrepresents the nature of human society, and also gives a false model of political order and the political process. Associations and institutions are treated by their members as ends, and not as means only (that is what personality requires, according to Kant). Only by joining such ‘function transcending’ associations do we experience our social membership to the full, and find our fulfilment in it. All associations therefore have to be accorded autonomy, and rescued from the tyranny of instrumental reasoning.
I will touch on Oakeshott’s version of this thesis in a later class.
A typical conservative view of law would:
– take a bottom-up approach
– emphasize remedies rather than legislative rules
– make room for judicial ‘discovery’
– be suspicious of legislation, unless firmly bounded by procedural limitations
– emphasize the natural and rational basis of legal judgement, through espousing natural law theories, or through a procedural idea of natural justice.
– uphold judicial independence and the rule of law.
– emphasize corporate personality or its equivalent under the law of trusts.
– reject the instrumental approach to institutions.