F.A. Hayek on abstract/Aristotelian Origins of Rule of Law
From abstract rules to English Rule of Law via Aristotle and Cicero
Friedrich Hayek wrote:
Chapter TEN [extracts]
LAW, COMMANDS, AND ORDER
Order is not a pressure imposed upon society from without, but an equilibrium which is set up from within. — J. Ortega y Gasset
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. — Friedrich Karl von Savigny
… Life of man in society, or even of the social animals in groups, is made possible by the individuals acting according to certain rules. With the growth of intelligence, these rules tend to develop from unconscious habits into explicit and articulated statements and at the same time to become more abstract and general. Our familiarity with the institutions of law prevents us from seeing how subtle and complex a device the delimitation of individual spheres by abstract rules is. If it had been deliberately designed, it would deserve to rank among the greatest of human inventions. …
… That such abstract rules are regularly observed in action does not mean that they are known to the individual in the sense that it could communicate them. Abstraction occurs whenever an individual responds in the same manner to circumstances that have only some features in common. Men generally act in accordance with abstract rules in this sense long before they can state them. Even when they have acquired the power of conscious abstraction, their conscious thinking and acting are probably still guided by a great many such abstract rules which they obey without being able to formulate them. The fact that a rule is generally obeyed in action therefore does not mean that it does not still have to be discovered and formulated in words. …
… The conception of freedom under the law that is the chief concern of this book rests on the 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. It is because the lawgiver does not know the particular cases to which his rules will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule. Because the rule is laid down in ignorance of the particular case and no man's will decides the coercion used to enforce it, the law is not arbitrary. This, however, is true only if by “law” we mean the general rules that apply equally to everybody. This generality is probably the most important aspect of that attribute of law which we have called its “abstractness.” As a true law should not name any particulars, so it should especially not single out any specific persons or group of persons. …
… 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 social activity 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. If there were not, none of us would be able to go about our affairs or satisfy our most elementary needs.” [Edward Evan Evans-Pritchard]. This orderliness cannot be the result of a unified direction if we want individuals to adjust their actions to the particular circumstances largely known only to them and never known in their totality to any one mind. Order with reference to society thus means essentially 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. …
… Where the elements of such an order are intelligent human beings whom we wish to use their individual capacities as successfully as possible in the pursuit of their own ends, the chief requirement for its establishment is that each know which of the circumstances in his environment he can count on. … [This] is the essential condition of individual freedom, and to secure it is the main function of law. [END]
Chapter ELEVEN
THE ORIGINS OF THE RULE OF LAW
The end of the law is, not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others; which cannot be where there is no law: and is not, as we are told, a liberty for every man to do what he lists. (For who could be free when every other man's humour might domineer over him?) But a liberty to dispose, and order freely as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be the subject of the arbitrary will of another, but freely follow his own. — John Locke
1.
Individual liberty in modern times can hardly be traced back farther than the England of the seventeenth century. It appeared first, as it probably always does, as a by-product of a struggle for power rather than as the result of deliberate aim. But it remained long enough for its benefits to be recognized. And for over two hundred years the preservation and perfection of individual liberty became the guiding ideal in that country, and its institutions and traditions the model for the civilized world.
This does not mean that the heritage of the Middle Ages is irrelevant to modern liberty. But its significance is not quite what it is often thought to be. True, in many respects medieval man enjoyed more liberty than is now commonly believed. But there is little ground for thinking that the liberties of the English were then substantially greater than those of many Continental peoples.3 But if men of the Middle Ages knew many liberties in the sense of privileges granted to estates or persons, they hardly knew liberty as a general condition of the people. In some respects the general conceptions that prevailed then about the nature and sources of law and order prevented the problem of liberty from arising in its modern form. Yet it might also be said that it was because England retained more of the common medieval ideal of the supremacy of law, which was destroyed elsewhere by the rise of absolutism, that she was able to initiate the modern growth of liberty.
This medieval view, which is profoundly important as background for modern developments, though completely accepted perhaps only during the early Middle Ages, was that “the state cannot itself create or make law, and of course as little abolish or violate law, because this would mean to abolish justice itself, it would be absurd, a sin, a rebellion against God who alone creates law.” For centuries it was recognized doctrine that kings or any other human authority could only declare or find the existing law, or modify abuses that had crept in, and not create law. Only gradually, during the later Middle Ages, did the conception of deliberate creation of new law—legislation as we know it—come to be accepted. In England, Parliament thus developed from what had been mainly a law-finding body to a law-creating one. It was finally in the dispute about the authority to legislate in which the contending parties reproached each other for acting arbitrarily—acting, that is, not in accordance with recognized general laws—that the cause of individual freedom was inadvertently advanced. The new power of the highly organized national state which arose in the fifteenth and sixteenth centuries used legislation for the first time as an instrument of deliberate policy. For a while it seemed as if this new power would lead in England, as on the Continent, to absolute monarchy, which would destroy the medieval liberties. The conception of limited government which arose from the English struggle of the seventeenth century was thus a new departure, dealing with new problems. If earlier English doctrine and the great medieval documents, from Magna Carta, the great “Constitutio Libertatis”, downward, are significant in the development of the modern, it is because they served as weapons in that struggle.
Yet if for our purposes we need not dwell longer on the medieval doctrine, we must look somewhat closer at the classical inheritance which was revived at the beginning of the modern period. It is important, not only because of the great influence it exercised on the political thought of the seventeenth century, but also because of the direct significance that the experience of the ancients has for our time.
2.
Though the influence of the classical tradition of the modern ideal of liberty is indisputable, its nature is often misunderstood. It has often been said that the ancients did not know liberty in the sense of individual liberty. This is true of many places and periods even in ancient Greece, but certainly not of Athens at the time of its greatness (or of late republican Rome); it may be true of the degenerate democracy of Plato's time, but surely not of those Athenians to whom Pericles said that “the freedom which we enjoy in our government extends also to our ordinary life [where], far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes” and whose soldiers, at the moment of supreme danger during the Sicilian expedition, were reminded by their general that, above all, they were fighting for a country in which they had “unfettered discretion in it to all to live as they pleased”. What were the main characteristics of that freedom of the “freest of free countries”, as Nicias called Athens on the same occasion, as seen both by the Greeks themselves and by Englishmen of the later Tudor and Stuart times?
The answer is suggested by a word which the Elizabethans borrowed from the Greeks but which has since gone out of use. “Isonomia” was imported into England from Italy at the end of the sixteenth century as a word meaning “equality of laws to all manner of persons”; shortly afterward it was freely used by the translator of Livy in the Englished form “isonomy” to describe a state of equal laws for all and responsibility of the magistrates. It continued in use during the seventeenth century until “equality before the law,” “government of law,” or “rule of law” gradually displaced it.
The history of the concept in ancient Greece provides an interesting lesson because it probably represents the first instance of a cycle that civilizations seem to repeat. When it first appeared, it described a state which Solon had earlier established in Athens when he gave the people “equal laws for the noble and the base” and thereby gave them “not so much the control of public policy, as the certainty of being governed legally in accordance with known rules”. Isonomy was contrasted with the arbitrary rule of tyrants and became a familiar expression in popular drinking songs celebrating the assassination of one of these tyrants. The concept seems to be older than that of demokratia, and the demand for equal participation of all in the government appears to have been one of its consequences. To Herodotus it is still isonomy rather than democracy which is the “most beautiful of all names of a political order”. The term continued in use for some time after democracy had been achieved, at first in its justification and later, as has been said, increasingly in order to disguise the character it assumed; for democratic government soon came to disregard that very equality before the law from which it had derived its justification. The Greeks clearly understood that the two ideals, though related, were not the same: Thucydides speaks without hesitation about an “isonomic oligarchy”, and Plato even uses the term “isonomy” in deliberate contrast to democracy rather than in justification of it. By the end of the fourth century it had come to be necessary to emphasize that “in a democracy the laws should be masters”.
Against this background certain famous passages in Aristotle, though he no longer uses the term “isonomia,” appear as a vindication of that traditional ideal. In the Politics he stresses that “it is more proper that the law should govern than any one of the citizens”, that the persons holding supreme power “should be appointed to be only guardians and the servants of the law” and that “he who would place the supreme power in mind, would place it in God and the laws.” [Politics 1287a (bk. 3, chap. 16, sec. 10)] He condemns the kind of government in which “the people govern and not the law” and in which “everything is determined by a majority vote and not by a law”. Such a government is to him not that of a free state, “for, where 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.” [Politics, 1292a (bk. 4, chap. 4)]. If we add to this the following passage in the Rhetoric, we have indeed a fairly complete statement of the ideal of government by law:[fn1] “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.” [fn2]
There is clear evidence that the modern use of the phrase “government by laws and not by men” derives directly from this statement 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, but the laws” [fn3] whereupon James Harrington retorted that the “art whereby a civil society of men is instituted and preserved upon the foundation of common right or interest . . . [is], to follow Aristotle and Livy, the empire of laws, not of men”.
3.
In the course of the seventeenth century the influence of Latin writers largely replaced the direct influence of the Greeks. We should therefore take a brief look at the tradition derived from the Roman Republic. The famous Laws of the Twelve Tables, reputedly drawn up in conscious imitation of Solon's laws, form the foundation of its liberty. The first of the public laws in them provides 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”. This was the basic conception under which there was gradually formed, by a process very similar to that by which the common law grew, the first fully developed system of private law—in spirit very different from the later Justinian code, which determined the legal thinking of the Continent.
This spirit of the laws of free Rome has been transmitted to us mainly in the works of the historians and orators of the period, who once more became influential during the Latin Renaissance of the seventeenth century. Livy—whose translator made people familiar with the term “isonomia” (which Livy himself did not use) and who supplied Harrington with the distinction between the government of law and the government of men — Tacitus and, above all, Cicero became the chief authors through whom the classical tradition spread. Cicero indeed 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 or 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. No other author shows more clearly 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, ts generality and certainty, and the restrictions it places on the discretion of authority.
This classical period was also a period of complete economic freedom, to which Rome largely owed its prosperity and power. From the second century ad, however, state socialism advanced rapidly. In this development the freedom which equality before the law had created was progressively destroyed as demands for another kind of equality arose. During the later empire the strict law was weakened as, in the interest of a new social policy, the state increased its control over economic life. The outcome of this process, which culminated under Constantine, was, in the words of a distinguished student of Roman law, that “the absolute empire proclaimed together with the principle of equity the authority of the imperial will unfettered by the barrier of law. Justinian with his learned professors brought this process to its conclusion”. Thereafter, for a thousand years, the conception that legislation should serve to protect the freedom of the individual was lost. And when the art of legislation was rediscovered, it was the code of Justinian with its conception of a prince who stood above the law that served as the model on the Continent.
4. In England, however, the wide influence which the classical authors enjoyed during the reign of Elizabeth helped to prepare the way for a different development. Soon after her death the great struggle between king and Parliament began, from which emerged as a by-product the liberty of the individual. It is significant that the disputes began largely over issues of economic policy very similar to those which we again face today. …
[MGH: Chapter 11 continues another 14 pages and contains 96 footnotes, 3 of which, concerning Aristotle, feature below … today SSF experiments with footnotes].
The Source:
Friedrich A. von Hayek, The Constitution of Liberty: the definitive edition, edited by Ronald Hamowy for The University of Chicago Press [1960] 2011
Evolutions of social order from the earliest humans to the present day and future machine age.
Featured footnote 1:
How fundamental these conceptions remained for the Athenians is shown by a law to which Demosthenes refers in one of his orations (Against Aristocrates 86; cf. Against Timocrates 59) as a law “as good as ever law was.” [The edition Hayek employed is Demosthenes, Orations 21–26: Against Meidias. Against Androtion. Against Aristocrates. Against Timocrates. Against Aristogeiton 1 and 2, James Herbert Vince, trans. (7 vols.; Loeb Classical Library; Cambridge, MA: Harvard University Press, 1935), vol. 3, pp. 275, 411.—Ed.] The Athenian who had introduced it had been of the opinion that, as every citizen had an equal share in civil rights, so everybody should have an equal share in the laws; and he had proposed, therefore, that “it should not be lawful to propose a law affecting any individual, unless the same applied to all Athenians.” This became the law of Athens. We do not know when this happened—Demosthenes referred to it in 352 B.C. But it is interesting to see how, by that time, democracy had already become the primary concept superseding the older one of equality before the law. Although Demosthenes no longer uses the term “isonomia,” his reference to the law is little “more than a paraphrase of that old ideal. On the law in question cf. Justus Hermann Lipsius, Das attische Recht und Rechtsverfahren (3 vols. in 1; Leipzig: Reisland, 1905–15), vol. 1, p. 388, and Egon Weiss, Griechisches Privatrecht auf rechtsvergleichender Grundlage. Vol. 1: Allgemeine Lehren (Leipzig: F. Meiner, 1923), p. 93 (n. 186a); cf. also Arnold Hugh Martin Jones, “The Athenian Democracy and Its Critics,” Cambridge Historical Journal, 9 (1953): 10, and reprinted in his Athenian Democracy, p. 52: “At no time was it legal [in Athens] to alter a law by a simple decree of the assembly. The mover of such a decree was liable to the famous ‘indictment for illegal proceedings' which, if upheld by the courts, . . . exposed the mover to heavy penalties”.
Featured footnote 2:
Aristotle, Rhetoric 1354ab [bk. 1, chap. 1] in The Works of Aristotle, William Rhys Roberts, trans., William David Ross, ed., vol. 11 (Oxford: Clarendon Press, 1924), [p. 2]. I do not quote in the text the passage from Politics 1317b.5 [bk. 6, chap. 1, sec. 8] where Aristotle mentions as a condition of liberty that “no magistrate should be allowed any discretionary power but in a few instances, and of no consequence to public business,” because it occurs in a context where he does not express his own opinion but cites the views of others. An important statement of his views on judicial discretion is to be found in Nicomachean Ethics 1137b.5 [bk. 5, chap. 10] where he argues that the judge should fill a gap in the law “by ruling as the lawgiver himself would rule were he there present, and would have provided by law had he foreseen the case would arise …
Featured footnote 3:
Hobbes, Leviathan, p. 448. It is characteristic that Francis Bacon started with this animosity against Aristotle, whose books he wished to see banned. See the introduction to Francis Bacon, Instauratio Magna. [The edition to which Hayek is referring is most likely Francisici Baconi Baronus de Verulamio . . . opera omnia (4 vols.; London: R. Gosling, 1730), with an introduction by Bacon's contemporary and friend, the Rev. Dr. William Rawley. If so, Hayek is in error in suggesting that Bacon wished to ban the work of Aristotle. Rawley writes: “Though there was bred in Mr. Bacon so early a dislike of the physiology of Aristotle, yet he did not despise him with that pride and haughtiness, with which youth is wont to be puffed up. He had a just esteem of that great master in learning, and greater than that of Aristotle himself expressed towards the philosophers that went before him. For he endeavoured (some say) to stifle all their labours, designing to himself an universal monarchy over opinions, as his patron Alexander did over men” (vol. 1, p. 20).—Ed.]