THE ORIGINS OF THE RULE OF LAW o “The absolute Empire proclaimed together with the principle of equity the
Hayek authority of the empirical will unfettered by the barrier of law”
SUMMARY:
DOCTRINE:
- Hayek argues that men of the Middle Ages knew many liberties in the sense of
privileges granted to estates or persons, but hardly knew liberty as a general condition -
of the people.
o Kings or any other human authority (e.g. the state) could only declare or find the
existing law, or modify abuses that had crept in, and not create law. It was
absurd to create, abolish or violate law as it was a rebellion to God who alone -
creates law.
- In the later middle ages, the concept of legislation – the deliberate creation of new law
– came to be accepted. (In England, this took the form of Parliament). The new power of
the highly organized Nation-State used legislation as an instrument of deliberate policy.
Sources of the Ideal (Greek):
- Hayek argues that the influence of the Classical Tradition on the Modern Ideal of Liberty
can be traced back to Ancient Athens.
- Main Characteristic: Isonomia –a greek word imported into the English Language
o In the 16th century, it meant “equality of laws to all manner of persons.”
o Livy used the Englished form Isonomy to describe a state of equal laws for all
and responsibility of the magistrates.
- The concept of Isonomia first appeared in Athens when Solon gave the people “equal laws
for the noble and the base.” It was not so much control of public policy as certainty of
being governed legally in accordance with known rules.
- Isonomia appears to be older than Demokratia, resulting in the demand for equal
participation of all in the government.
o Note that the Greeks understood that the two concepts were not the same
- Aristotle condemns a government where the people govern and not the law – it is a
government where everything is determined by majority vote – and the decrees of the
majority cannot be general in their extent.
o When referring to a government by law, it is one where well drawn laws define
all points possible, and leave as few as possible to the decision of judges.
o The decision of the lawgiver is not particular but prospective in general,
whereas the assembly/jury decides on definite cases brought before them. - The next twenty years of debates in Parliament focused on the prevention of arbitrary
Sources of the Ideal (Roman):
- The Laws of the Twelve Tables provides the conception by which the first fully
developed system of private law evolved:
"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."
- Hayek notes Cicero in particular, for providing a number of concepts:
o Leges legum – General rules
o We obey the law in order to be free – that there is no conflict between law and
freedom, and freedom is dependent upon certain attributes of the law
o The judge aught to be merely the mouth through whom the law speaks
- From the second century A.D. onwards, the strict law was weakened as the state
increased its control over economic life.
o The conception that legislation should serve to protect the freedom of the
individual was lost.
o When it was rediscovered, it was the Code of Justinian, with the conception of
a prince who stood above the law, that served as the model of the continent.
The English Fight against Privilage:
The English Civil War began (40 years) after the death of queen Elizabeth I, and it is
noted that disputes began largely over issues of economic policy – specifically Attempts
by King James I and Charles I to set up industrial monopolies – the latter even
attempting to nationalize the coal industry.
The demand for equal laws for all citizens became the main weapon of Parliament
against the Kings’ aims.
“Case of Monopolies” – a court had declared that the grant of exclusive rights to
produce any article was “against the common law and the liberty of the subject.”
Petition of Grievances of 1610 – provoked by regulations by the king for building in
London and prohibiting the making of starch from wheat.
o Plea of the House of Commons upheld the right of British subjects “to be
governed by a certain rule of law… and not by any uncertain and arbitrary
form of government,” and “not to be made subject to punishment that shall
extend to their lives, lands, bodies, or goods other than such as are ordained
by the common laws of the land”
Statute of Monopolies of 1624 – Sir Edward Coke contended that a grant of monopoly is
“against the liberty and freedom of the subject, that before, or lawfully might have
used that trade”
o “Leave all causes to be measured by the golden and straight mete-wand of the
law, and not to the incertain and crooked cord of discretion”
1641 abolition of the prerogative courts and the Star Chamber
o Had become courts of politicians and policy-enforcement rather than a court of
judges administering the law
o Efforts were made at almost the same time to secure the independence of judges
action of Government. A number of points were recognized:
o WON an action was arbitrary depended NOT on the source of authority, but on
WON it is in conformity with pre-existing general principles of law.
o There must be no punishment w/o a previously existing law providing for it
o All statutes should have only prospective and not retrospective operation
o Discretion of all magistrates should be strictly circumscribed by law
o Lex Rex (Law should be King)
- Two conceptions emerged as to how these ideals should be safeguarded: (1) The written
Constitution, and (2) The separation of Powers
o Declaration of Parliament Assembled at Westminister (1660) – “…Parliament
will not meddle with ordinary administration, or the executive part of the
law…”
Other works were equally influential – such as John Locke’s Second Treastise on Civil
Government
- The practical problem he is concerned with is how power can be prevented from
becoming arbitrary
- Whoever has legislative or supreme power is bound to:
1. govern by established standing laws promulgated and known to the people,
and not by extemporary decrees;
2. govern by indifferent and upright judges, who are to decide controversies by
those laws; and
3. Employ forces of the community at home only in the execution of such laws."
- The legislature cannot assume a power to rule by extemporary arbitrary decrees, but is
bound to dispense justice and decide rights by promulgated standing laws
- Known authorized judges have no will or power other than that of the law
- Locke is mainly concerned with how to limit the discretion of executive power, but offers
no safeguards

Developments during the 18th century

- Period of consolidation of the ideals stated prior (arguments against arbitrary action of
the legislature, principle of the separation of powers)
- A few events of note:
o Member of the House of Commons restated the doctrine of nulla poena sine lege
– Where there is no law there is no transgression
o Lord Camden’s statement: courts are concerned only with general rules and
not with government policy
- Although the process of consolidation was slow, the principles themselves ceased to be a
matter of dispute
- In some respects however, evolution seemed to move away from the ideal – the principle
of Separation of powers became less and less of a fact as the modern cabinet developed

Restatements by Hume, Blackstone, and Paley

- David Hume – the history of England was the evolution from a “government of will to
a government of law.” (in reference to the abolition of the Star Chamber)
- Blackstone commentaries: (1) significance of the independence of the judges and
separation of powers, (2) meaning of “law” by its definition as “a rule, not a transient
sudden order from a superior, but something permanent, uniform, and universal”
- Paley: “The First maxim of a free state is that the laws be made by one set of men and
administered by another”
o Argues the separation of the legislative and judiciary
o When the two are united, particular laws are made for particular cases,
springing from partial motives, and directed to private ends
o While they are separate, general laws are made by one body of men without
forseeing whom they may affect
o When the parties of interest to be affected by the laws were known, the
inclination of law makers would inevitably attach to one side or the other – such
uncontrolled inclination would interfere with the integrity of public justice

The new liberalism that displaced Whigism came under the influence of rationalist tendencies
from French philosophical radicals and the French Revolution. The French Concept of Political
Liberty displaced the English ideal of individual liberty.
- Liberty is imperfectly defined when it is said to be a government of LAWS and not by
MEN. If the laws are made by one man, or a junto of men in a state, and not by common
CONSENT, a government by them is not different from slavery.”