THE COLLECTED WORKS OF F. A. Hayek VOLUME XVII THE CONSTITUTION OF LIBERTY The Definitive Edition EDITED BY RONALD HAMOWY @ The University of Chicago PressRONALD HAMOWY isprofesiorof history emeritus at the University of Alberta and aflate professor of economies at George Mason University. He sa fellowin socal thought atthe Cato Insitute and has writen numerous articles and books on socal chery, inching The Satse Enlightounet and Spontaneous Onder ad The Pica Sucilgy of Fed: Adan Roguan and EA, Haye, He is the editor ofthe Liberty Press edition of Ca’ Ltrs ‘The University of Chicago Press, Chicago 60637 The University of Chicago Pres, Lid, Landon 1 1960, 2011 bythe Univesity of Chicago Allvights reserved Published 2011 Printed in the United States of America Mo wiIwISMIBWM 12945 ISBN-15: 978-0-226-31537. ISBN-15: 978404 1ISBN-10; 0-226-51337-1 (cloth) ISBN- 10: 0-226-8159948 (paper) ibe Hayek, Friedrich A. von (Fiedrich Augus), 1899-1992 “The constaion of Hberty: the definitive etion / edited by Renal Hamowy. ‘em, — (The clleced works of EA. Hayek :¥. 17) 8B 13: 97840.226-31537-9 (dod alk. paper) IS8N-10-0-22631587-1 (cloth: alk paper) ISHN-13:978-0-225-91539-3 (pbk. alk paper) 1SHN-10:0-226-3155948 (pbk + alk pape) 1. Liberty 2. Rule of lve 3. Social policy: I. Hamow, Ronald, 1937- IL. Tite. IL. Series: Hayek, Friedrich A. von (Friedrich August, 1999-1992, Works, 1989; x 17. THBI71 1426 1969 vol 17 [Jc5a5.429) 20.011 —-de22 1 of Congress Cataloging-in-Publeation Data 210020085, © The paper used in this publication meets the minimum requirements ‘of the American National Standard for Information Sciences — Permanence of Paper fr Printed Library Materials ANSI 73948-1902,THE COLLECTED WORKS OF F, A. HAYEK, Founding Editor: W. W, Bartley IIL General Editor: Bruce Caldwell Published with the support of ‘The Hoover Institution on War, Revolution, and Peace Stanford University ‘The Cato Institute ‘The Earhart Foundation The Pierre F. and Enid Goodrich Foundation The Heritage Foundation The Mortis Foundation, Little RockCONTENTS Editorial Foreword Introductory Essay The Constitution of Liberty: Ealnions and Translations A Note on the Notes Editor's Acknowledgments Liberty Fund Editions Cited THE CONSTITUTION OF LIBERTY Preface Acknowledgments, Bibliographical Abbreviations Introduction PART 1. The Value of Freedom One Liberty and Liberties Two The Creative Powers of a Free Civil ‘Three ‘The Common Sense of Progress 26 28 30, 39 4 4 47Four Five PART IL. Nine Ten Eleven ‘Thirteen Fourt Fifteen Sixteen Freedom, Reason, and Tradition Responsibility and Freecom Equality, Value, and Merit Majority Rule Employment and Independence Freedom and the Law Coercion and the State Law, Commands, and Order ‘The Origins of the Rule of Law ‘The American Conteibution: Gonstitutionalism Liberalism and Administration: The Reckisstaat ‘The Safeguards of Individual Liberty Economic Policy and the Rule of Law ‘The Decline of the Law PART III, Fieedom in the Wolfare State Seventeen Eighteen Nineteen ‘Twenty ‘Twenty-one ‘The Decline of Socialism and the Rise of the Welfare State Labor Unions and Employment Social Security ‘Taxation and Redistribution ‘The Monetary Framework 107 133 148 166 184 199, 215 232 261 287 308 329 342‘Twenty-two Housing and ‘Town Planning ‘Twenty-three Agriculture and Natural Resources ‘Twenty-four Education and Research POSTCRIPT Postscript: Why I Am Not a Gonservative Analytical Table of Contents, Index of Authors Cited Index of Subjects 466 482 498 343 387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 isto be free from restraint and vio- lence 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?) Buta 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, ancl therein not tobe the subject of the arbitrary will of another, but feel follow. his own. — John Locke 1, Individual liberty in modern times can hardly be waced back farther than the England of the seventeenth century.’ It appeared first, as it prob- The quotation atthe head of the chapter i taken from John Locke, Seund Tats, see. 57 -29. The substance ofthis chapter as well as of chapters [3-16 have been used in my ectures "The Pll Il of he Re of Lat, National Bank of Egypt Fifieth Anniversary Commemoration Lecwures, (Cairo: Nasional Bank of Egypt, 1955) xn about the growth of these ideas, the more Lam convinced ofthe important role which the example of the Dutch Republic played. But, though this influence is ity in the later seventeenth and early eighteenth centuries, its earlier operation stil needs inves tion. Inthe meantime, se Sir George Norman Clark, “The Birth ofthe Dutch Republic” [The Raleigh Lectare on History], Penn fhe Brit Acadamy, 32 (1946) 189-210; to Newey (98, tices of Piical Thought tom Gerson o Grats 1414-1625 (Camtrigge: Cambridge Univeraty Pres, 1907), pp 191,198, 200; John Letrop Maly, The Rise ofthe Duteh Repub (3 vols: Now York: Harper and Broties, 1856), Pieter Geyl, “Liberty in Dutch History” Dela: A Rei of Arts Lif ‘and Thong intr Nterands, | (1958); 11-2: iter Gey, The Rovio the Nethevionds, 1555-1609 (London: witians an Norgate Lt, 1952) and Joon Selwyn Brom and Emest Hewich Kossman, eds ‘niain and the Netherlands, Papers Detvred tothe Oxford therands Mistrcal Confrence, 1959 (London: Chato and Windus, 1980), Tigiorance also compels me to pass over the important discussions and the development of similar ideas in Renaissance Hal, especialy in Florence, (For a brie discussion sce the intro- ‘duction to the notes to chap. 20,) Ct also Rude! ven Abert, Das foretische Statsbewultsein in (Obergang von der Repubik um Prnapat (Bem: France, 1958), parcuerl .294, and Given Batata Guatn, Tatato dele pubblce inert (ca. 1800), (Vric: Andreala, 1818). And I cannot speak withably 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 ree- ‘ognized. 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 workd.! “This does not mean that the heritage of the Middle Ages is irrelevant to mogern liberty. But its significance is not quite what itis often thought to be. ‘Truc, in many respects medieval man enjoyed more liberty than is now com- monly believed. But there is litle ground for thinking that the liberties of the English were then substantially greater than those of many Continental peoples." But if men of the Middle Ages knew many liberties in the sense of any competence about the interesting fact that the one great non-European civilization, that of ‘China, appears have developed, about the same time asthe Greeks, lyal conceptions surpris- ingly similar to those of Western civilization. According to Feng Youlan, A History of Chinese Pl Lop, Nol 1: The Pid fhe Piloyphar (om te Beginning to Cia 100), Detk Bade tran, (Peiping: H. Vetch, 1937, p 312: “the great political tendency of the time [the seventh to thre ‘centuries 2.) was a movement fiom feudal ule toward a goverument by rulers possessing abso Tate power: from government by customary morality (fi, and by individuals, wo government by law” (p. 821). The author quotes as evidence from the Kiana treatise atrbuted to Kuang, ‘Chung (ea, 715-645 mc.) but probably compose inthe third certury m.¢.: “When a state is governed by la, things wil simply be done in their regular course, I the law isnot nic Torm, there will e misfortune for the holder of the state... When ruler and minister, supesio aud inferior, noble and humble all obey the la this i caled having Great Good Government He adds, however, that this i “an ideal which has never yet been actually ated in China (p. 322), See also Heres Gissne Cro, “The Fach Legal’ Acministatersin Buln ofthe Insitute of History and Phiotogy, Academia Sica, 4 (191) 607-36, ad Tung-Tsu Ch [Tongzu Ou, Land Socket in Tatonal Chino (Pare: Mouton, 1961), partulay pp 242-44 errand de ouven (On Powor [Liberty Fund edition aaiate, mainans that he Chinese employed the tarms"government of laws" an “goverment of mon 2500 years ago ‘CE, Montesquien's remark in The Spt of th Lacs vol. 1, p. 151; French edition: wl. 2, 396): “One nation there is also in the work that has for the direct end of is constiaton politcal liberty” [ya aussi une nation dans le monde qui a pour objet dict de sa consti= tution la liberé poitique"—Eal] See also Rudolph Henne, De alle Fett seria tion; Zurich: R. Sauerlander, 1927). A careful stay of the discovery of English iberty by the Continental people and of the influence of the Enafish mode on the Continent has yet to be rade, Important early works ate Guy Mibge, [Flat pet dele Grande Bretagne as on hearse sino 1707, sous lige lorie Anne (2 vols in I: Amsterdam: Chez les Wetsteins, 1708}, also inan enlarged German edition as Geist and wltich Saat zon Gas-Brtaraion nd Had nach der srgneartien Zeit (Leipzig: Weidmanns, 1718); Paul de Rapin-Thoyra, Dissertation ur ks Whigs ds Toys, or Histriel Diseraton wor Wig and Tac John Ore, trans. (Landon: Printed for E. Cul, 1717) and August Adolph Feedsich von Hennings, Pilwphiche and satitiche Gosicte es Uiprangs andes Frgngs dr Pat n Engdand na Hume, Blackstone nd ander Quen anger bia (Copenhagen: Prot, 1783. “Gr: particularly Sir Frederick Pollock and Frederic Wilim Main, History of Engi Law Buje le Tine of Ecard I (2nd el 2 vols; Cambridge: Cambridge University Pres, 1911); Rob cert von Keller, Feigratio fir Pron wad Fgetn in Miter cine Sue es Vgescie mad ‘ner Vefesneyrundcte (Heidelberg: C. Winter, 1939; Hans Panta, “Zur Meengeschichte der 233privileges granted to estates or persons, they hardly knew liberty as a general condition of the people. In some respects the general conceptions that pre- vailed 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 lawy which was destroyed elsewhere by the rise of absolut- . that she was able to initiate the modern growth of liberty! “This medieval view, which is profoundly important as background for mod- cern developments, though completely accepted perhaps only during the early Middle Ages, was that “the state cannot itself create or make laws, and of ‘course as litle abolish or violate laws, because this would mean to abolish jus- Lice itself, it would be absurd, a sin, a rebellion against God who alone creates Grundvecbtein Die Crna wd Craniliio der Recvesng. Kimora eciten Tei de Reichzefasang, Hans Catt Nipperdey, ed. (3 vols: Berlin: Verlag Reimar Hobbing, 1929-30, ‘val 3, pp. 397 625, esp, 601; and Otto Friedrich von Gierke, JhonnerAlhesiwnd ie Enticing cher nature Sastre: aglch cn Being zr Gasice der Rechts statk le; Breslau: Vera Marcus, 1902), "See Chavles Howard Metivain, “The English Common Lave Barrer against Absolut,” American Fistral Review, 49 (1984): 27. "The extent to which even the most famous and later ‘most influential clause of Magna Carta merely expressed ideas common tothe period is shown by a decree of the Emperor Conrad Tl, dated May 28, 1087 (given in William Stubbs, Ger many in the Kenly Mie ges, 476-1270, Amlue Hasal, ed. [London: Longmans, Green, and Co, 1908}, p. 147), which states: "No man shal be deprived of a Bet «but by the laws of the ‘empire and the judgment of his peers” ‘We cannot examine in any detail here the philosophical tradition handed down from the Midele Ages. But in some respects Lord Acton was not being altogether paradoxical when he described Thomas Aquinas asthe fise Whig (ce “Freedom in Christianity.” Hier of Fed, p-37 [Liberty Fund edition, p. 34), and of Joh Nevill Fggis, Suis of Plea! Thug fm ‘Grom t Grates, p. 7). On Thomas Aquinas see Thomas Gilby, Poinipaliy and Poin: Aquinas and the Rive of Sate Thay inthe West London: Longmans, Green, and Co., 1958); and on his inf ‘ence on early English political theory, especially Richart Hooker, se Shekion Sandford Woli, “Richard Hooker and English Conservation,” Ween Pal Quarts 6 (1958: 28-47. Faller account would have to give special attention to Nicolas of Cusa inthe thirteenth and Bar tolus inthe fourteenth centuries, who carried on the tradition. See partoaary Nicholas of Cus, De concordantiacathalca (1514), Gerhard Kalo, od. (4 vols; Haméurg: Fox Meine, 1963) [v0.14 ‘of Opera anil, 3, chap. 1 pp. 327-28; Maris of Pada, Dofonsor Pai, Richa Scho, (2 vols; Hanover: Hahnsche Buchhandlung, 1983), vo. 1, Dio 2, chap. 2 S60 4, pp. 148-47); Pane Anton von Seharpt, Der Cardinal und Bish Nicolaus som Casa at Reforma in Khe, Ree und Philosophie des fnfnten Jalrhondes (Tubingen: Laupp, 1871), esp. p- 22; John Neville Fig 2, “Bartolus and the Development of European Political Meas,” Tansctons of the Rael is- ‘oral Soi, ns, 19 (1905): 147-68; and Cecil Nathan Sidney Wool, Bots of Sasa His Position i the History of Mesa! Pica! Thught (Cambridge: Cambridge University Pres, 1913}; and, on the political theory of the period generally Sir Robert Warrand Carlyle and Alexander James Cane, A History of Medial Pal Theory the West (6 vol; Elinburgh: Black- wood, 1903), 234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 erept in, and not create lav." Only gradually, during the later Middle SCL Oto Vosle, “Studien zur Erklirung der Menschenrechte,” Historie Zieh, 142 (1980) 518 [*Fur das Mitelalter it niet dr Stat souveran, sondern das Recht, die Gevectig- eit. Der Statist nur die Schophing, der Diener des Rechts und der Gerechtigheit, seine Aulgabe ist es, das Recht au schatzen und 2a schirmen gegen das immer drohende Unrecht, Er kann aber nicht selbst Rech schaffen, setzen, eensowenig natch Recht abschaffen oder verletzen, denn das hiele die Gerechtghet selbst abchaffen nnd veleten, ex ware absurd wd Sonde und ware eine Aullehnang gegen Got, der allen Recht chaff." —Ealsalso Fritz Kern, ‘Kinship and La inthe Miele. Vl. 1: The Divine Right of Bing and he Right of Resistance in the Early Middle Ags. Vol, 2 Lae and Consitaton nthe Middle Ages Sadi, Stanley Bertram Chimes, trans. (Oxford: B. Blackwell, 1939); Edward Jenks, Law and Pits tthe Middle Ages: Wik aS ‘pte Table of Sores (Landon: J. ray, 1898), pp. 24-25; Charles Howard Melhwain, The High Court of Peat and Ts Supremacy: dn Hiri Esa on the Baars Been Liat and dation in England (New Haven: Yale University Press, 1910) John Nevelle Fggis, The Dice Right of Kings 2a ed, with thee additional esays; Cambridge: Cambridge Univesity Press, 1914); Charts Victor Langlois, Le Rie de Philipp I, le Hard (Paris: Hache et cie., 1887), 285; and, fora correction concerning the sitsaton in the ler Middle Ages, Theodore Frank Thomas Plucknet, Stats and Thi Iecain ithe Fist Half of the Forte Cnty (Cane bridge: Cambridge University Press, 1922, and Laidatinof Bcd (Oxfords Clarendon Pres, 1919), Om the whole issue see John Wiedhiofit Gough, Faxdamaal Lao in English Constitutional Hsory(Onford: Clarendon Pres, 1955) CL Bernhard Rebel, Die Wil des Rete (Rech (etin: Duncker wl Humblot, 1951) 67: “Das Auftauchen des Phinomens der Gesstzgebung ... bedeuwet in der Menschietge Schichte die Erfindung der Kunst, Recht und Geset zu machen Bis dahin hatte man ja geglaubt Recht nicht setzen, sondern mur anwenden zu konen als etwas, das weit jeher war An dieser orstelling gemesten ist die Erfindung der Gesetzgebung vclicht die flgenschwerste, di je gemacht worden—folgensehwerer als di des Feuermachens oder des Schietipuvers denn am siristen von allen hat se das Schicksal des Menschen in seine eigene Hand geleg.” ["The ‘appearance of the phenomenon of legiation in the hitary of humanity marks the discovery fof the art of determining right from wrong, Up to tha point people believed that they were not Able to ereate la but coll only app the rules tha were already in place. Measured by his idea, the discovery of legiation is peshaps the most significant ofall scores that have been ‘made—more significant than the ability to make fre or gunpowder —because more than any ‘other discovery, placed mans destiny in his own hands” Ed] Similarly ian as yet unpublished paper contebuted toa symposium on “The Expansion of Society” organized by the Oriental Institute of the University of Chicago in December 1958, “Mas Rheinscin observes: “The notion that valid norms of conduet might be established by of legislation was peculiar to later stages of Greek and Roman history in western Europe it was dormant until the rediscovery of Roman law and the vse of absolute monarchy. The proposi- tion that all aw isthe command ofa sovereign isa postulate engendered by the democratic de ‘ology of the French Rewoktion that all lav had to emanate from dhe duly elected representa~ tives ofthe people ICs not, however, a true deseripsion of reality, leas af all nthe countries ‘of the Anglo-American Common Law” [Since Hayek wrote this, Rheinsten's article has been published. ‘The symposium to which Hayek refers infact carries ate substantially iferent From that given by him The actual citation i “Process and Change inthe Culkural Spectrum 235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-ereating one. It was finally in the dispute about the authority to legislate in which the contending par- ties reproached each other for acting arbitrarily —acting, that is, notin accor- dance 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 mon- archy, which would destroy the medieval liberties” The conception of limited ‘government which arose from the English struggle of the seventeenth cen- tury 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, itis because they served as weapons in that struggle. Coincident with Expansion: Government and Lav” in City bile: A Sypesion on Urbanization ‘and Caltaral Desispment nthe Ancient Near Eat, bl atthe rina nite of the Uncrityof Chica, Deeenber 4-7, 1958, Carl Hermann Kracing and Robert McCormick Adams, eds, (Chicago: Universiy of Chicago Press, 1960), pp. 405-18.——Fd Itmay be added mat a phiosopher trained inthe Garman approach tothe phlosophy ofight (John Austin) prove a necesary prerequisite succoss of logalpotivism in England How profoundly the traditional view that laws are found and not made sill influenced En- _lsh opinion in the late eighteenth eentry is shows by Edmnd Bask’ statement in the Tate Relat the Les against Piper in Tend, Winks, v0 9, pp. 352-5 to-any errour more uly subversive ofall the order and beauty, of al the peace and happines, ‘of human society, than the position, that any body of men have a right to make what Laws they please; or that Laws can derive any authority from thei institution merely and independent of the quality of the subject matter No arguments of policy, reason of State, or preservation of the Consitution, can be pleaded in favour of such 4 practi... All human Laws ate, prop ‘ly speaking, only declaratory; they may alter the mode and application, but have no power ‘over the substance of original justice.” For other illustrations see Edward Samuel Corwin, The “Higher Law” Background of Amerian Costional Law (Great Seal Book; Idhaca, NY: Cornel Uni- verity Pres, 1959} p 6m. 1], reprinted from the Hlarsard Law Review, #2 (1928-20): 133-54, 1. Ts and i Slat says on Cnstiutina Law, Comite of the Association of American Last Schools and Douglas Blound Maggs, et al, eds. (5 vals in 4; Chicago: Foundation Press, 193, vol. ,p.5,n. 1 [Liberty Fund edition, p-5,n. 2. ‘CL Dicey, Lae ote Contato, p. $70 [Liberty Fund elton, p, 242]: A lawyer who regards the matter from an exchsively legal pint of view is tempted to assert Ubat the real subject in di pte between statesmen such as Bacon and Wentworth onthe one hand, and Coke or Eliot on the other was whether a strong administration of the continental type should, or should not, be permanecaly established in England.” This is how Henry Bracton describes Maya Carta in De gus et const Angie, George a1 Woodbine, ed. (vols; New Haven: Yale University Press, 1915-42, fol 168. [The nce to Magna Carta as “the constitution of ibexty"oceursin vl. 3, p. 35 of this edition Edd] On the consequences of what was in effect a seventeenth-century misinterpretation of 236Yet if for our purposes we need not dwell longer on the medieval doctrine, ‘we must look somewhat closer atthe 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 dlrect 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 ofien been said that the ancients did not know liberty in the sense of individual liberty. This true of many places and periods even in ancient Greece, but certainly not of Athens at the time of its greamess (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 gov ernment extends also to our ordinary life [where], far from exercising a jeal- ‘ous 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 Magna Carta sce William Sharp McKchnie, Magra Carta: Commentary th iat Charter of King Join, With Hida radon el ed, ew and in par erin; Glasgs Maclehore and 1914), 138 IF the vague and inaccurate words of Coke have obscured the bearing of ‘many chapters [of Magna Carta, and diffe flke notions of the development of English Lavy, the service these very erors have dove to the cause of constitutional progress is measures.” ‘This view has since been expressed many times Se particularly Si Herbert Buwerfield, The lshman and His History (Cambridge: Cambridge University Press, 1914], p. 7 °GE Thomas Hobbes’ description of howe “one of the most frequent causes of it [he rebel Tio spirit of his pesid] isthe reading of books of policy, and histories of the ancient Greeks and Romans” (p.214) and that for this reason “there was never any thing so dearly bought, as these western parts have bought the learning of the Greek and Latin tongues” (Leiatan ‘The Meter rma, and Pacer of « Commorceth Eesastcal and Cis, Michael Joseph Oakeshot, ‘ed. [Osiord: B. Blackwell, 1916], p. 141) Hobbes shares Wis Rosi towards te ancient clasios ‘th Francs Bacon, who wished io see thew orks of Aistove Banned, [But se p. 29,0. 2, below — 4] See alo Aubrey’s remark that the roots of Mitons “zeal forthe liberty of mankind” lay in his “being s0 conversant in Livy and the Roman authors, andl the greatness he saw done by the Roman Commonwealth” John Aubrey, “John Milton.” Aubrey’s Brief Lite, Olver Lawson Dick, ed. [Ann Atbor: University of Michigan Pres, 1957], p. 203), On the elasical sources of the thought of Milton, Harrington, and Sidney see Zera Siver Fink, Th Causal Republicans te yin the Rcvery of « Pat of Thug in Senet Cetury Brgand, Norasestern Univesity Studies in [the] Humanities, No, 9 (Evanston IL: Northwestern University Pres, 1945), Thucyides 5.87.2 (Compe Witingr: The ioporesion Hi, ransated by Richare Crawley intreletion by John Fink, Jr. [New York: Modern Tabrary, 1951], p10) The most convine= ing tesimony & probably that of the enemies of the liberal democracy of Athens who reveal such when they complain, as Aristotle did (Polit, 1317b (bk. 6, chap. 1, se. 7), that “in such «democracies each person ives a he likes" (Aso so Puiarch, Lycuus, 24) The Greeks may have been the isto confise persona an politcal freedoms but this des not mean that they id not now the former of did not esteem it. The Soi pilosophers, at any rate, preserved the original meaning and handed it on to later ages. Zeno, indeed ‘pendent ation, whereas slavery sprivation of the same" (Diogenes Lacrins, Lies of Ein Pi 237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 scen both by the Greeks themselves and by Englishmen of the later Tudor and Stuart times? ‘The answer is suggested by a word which the Blizabethans borrowed from the Greeks but which has since gone out of use.'® “Isonomia” was imported lap, vi 121, Robert Drew Hicks, rans [Loeb Classical Library; London: W: Heinemann, 1925], vol. 2, p. 227), Philo of Alexandria, Qyod anni probu fib st ("Every good man is fe.” Fal] 452.45 (Hinks [published in 10 volumes plus two supplementary volumes], FA. Colson, twans [Loeb Glasical Library; London: W. Heinemann, 1911), vol 9, p. 36), even afersa thor- ‘oughly modern conception of Hberty under the law: ase de mda nano zs eth [The En- lsh reads “Al whose life regulated by lw are fice.” El], leet, reports an insertion trom Prien that reads: here ¢ nating greater fr Heese men than eso” (v8 19,138). [ This ‘quotation des not appear in Philo’ treatise “Quod Onanis Probus Taber Si,” ertainly notin the form attributed, Philo does, hawever, write at sme length on the importance of freedom to the Greeks. He notes that “this doctrine that freedom is glorious andl honourable, slavery exe~ ‘rable and disgrace is attested by cities and nations, which are more ancient, more perma rent, and as far a8 mortals may be immortal al for immortals ts lve of heir beng that their every word i rae. The sentes at national assemblies mee almost every day to diss tore than anything else how to confirmn ther freedom if they have it, or to acquit iti they have ino.” 20.137 38: Loeb Classieal Library: wl 9,p. 8) Ea]; and Strabo inhis Goograpy (HL. Jones, 0; Loeb Classica Library, vo 5,. 145 [10.416 wiles ofthe Crtans: As fr toi con. ‘ttn, which is decribed by Ephons, might suff t alin a way its most important provision. The Tangier, he says, erate ake for granted that ery fa sate’ grestest good, fr tnsalone makes propery belong spec clo tose who acquit, whereas ina condton of slavery averting belongs to he rulers and not tothe red” See Ere Aled Havelock, The Libera Tier i Gk Pir (Neve Hacen: Yale University Press, 1957). Its also no longer posible to deny the existence of fee- dor in ancient Athens by the asertion that its econemic system was “based on slavery, since recent search has larly shown that it was comparatively unimportant see Wiliam Linn Wes> termann, “Athenaeus and the Slaves of Athens," Adnian Suds Prat Wiliam Sat Regu 4 (London: H. Milloe, Oxford University Press, 1940), pp. 451-70, and Arnold Hugh Mai tin Jones, “The Economic Basis ofthe Athenian Democracy.” Past and Prom, | (19525 13-SL, reprinted in Aeien Donseray(Oxforc B, Blackwell, "Thucydides vi. 69 (p. 40), The misteprese esback to Thomas Hobbes and became widely known through Benjamin Constant, Del lier ds ani compare 4 ale des moderns, eprited in Cour de piu consttuionnls ou Clon des eae pubis sure oterannen mrt ols; Paris: Guillaimin ct ce, 1861), wo. 2, pp. 839-60, and Numa Denis Funtel de Coulanges, Lt Gi antique (Pais Durand, 1864), About this whole discussion see Georg Jelinek, Das Recht des modemen Slates, Vol. 1: lgencine Stabe (ne ed Beri: (Haring, 1905), pp. 285-305. cis dficul co understand hav as late as 1938, Harold Joseph Laski Liber.” Engel of te Scial Scics, vol. 9, p. 442) could il argue, with explicit ef ‘erence tothe Peiclan period, that “in such an ongancsocety the concept of inviualibery ‘was virally unknown: "Co Johan Huizinga, Wenn die Wen shige: di asin anf Ganesan ese itr (ase Burg-Vevlag, 1945, p. 95: “Man mus eigentlich bedauern, dass die Kulturen, die sch auf der 238(0 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,” “gov- ‘ernment of lav” or “rule of law” gradually displaced it. ‘The history of the concept in ancient Greece provides an interesting, les- son because it probably represents the first instance of a cyele that civiliza~ tions 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 Grandlage der griehischen Antike aufbauten, nicht an Stele des Wortes Demokzatiejenes andere dhemommen haben, das in Athen auf Grund der geschichichen Entwielung beson- dere Aching erweckte und ausserdem den hier wesetlchen Gedanken einer guten Regine form besonlers rein zat Ansdruck brachte: das Wort ‘Teonomia,” Geichhet der Gesetze, Dies ‘Wort hatte sogar einen unsterblchen Klang... Aus dem Worte “sonoma” sprit wit cetl= ‘her und unmitebarer als aus ‘Demokratia’ das Ideal der Freihet uch ist die in der Bezeiche ‘nung sonoma’ enthaltene These nichts Unerfllbares wie dies bei"Demokatia der Fall ist. Das ‘wescnliche Prinz des Rechtstaates it in diesem Wort bondi und klar wiedergegebcn,” ("It is unfortunate that the culutes that were to arise on the Fumdaions of Greek antiquity appro priated the word "democracy" rather than “onomia, that other wor! employed in Athens that, for reasons of historical development, expressed in ts purest frm the ewential notion of good government, thats, equality before the la. The word sonoma’ cartes the sense of i ideal of Freedom far more larly and more directly than does democrat. In addition, the term "sono rn’ doesnot suggest something that is ukimately unattainable as does ‘democrat’ The notion “omomia est and most concisely reflects the esental principle of the Rechistat”—Eal] Inthe Halian dictionary by John Florio, Hist of Winds er Most Copious and Bact Ditinai in and Erglsk (London: Printed by Arnold Hated for Ew. Blount, 1398), p. 195, Titus Livius, Ronan Histor (abo containing the Breve of Lucius Annacus Florus, Pile ‘mon Holland, trans (London: Printed by Ada Bip, 1600), pp. 11, 134, 1016 The Osfnd Enlsh Dismay, sx "sonomy” gives instances of use in 1659 and 164, each suggesting that the term was then in fly common use, [The references are to: “159 Quaris on Proposals Ofcrs Arm to Par 8 Everyone pretending to equality and Isonomy itech up and advanceth himself whilst he showeth at, and thrasteth dowsm others, 14 dai in. dt 135 They who prefer a Popular State have dignifde with the most agreeable ad specs Tile of Twonomie” Ea] ©The east preserved use of the word “isonomia” sems ta be that by Alemacon about 500 se. (Hermann Diels, Die Frguente der Vrsolattr: Grichisck nd Desh (Ath ed; 3 wos; Ber- Tin: Wiedmannsche Buchhancing, 1922), vol 1, p.136, Allama frag 4), As the use meta phorical, describing isonomy a. condition of physical health it sugges that the term was well sted by then, [The fragment to which Hayek refers is taken from the doxogeaphy of Ata 5.30.1) quoting Allmaion and was later reonstructed by Diels Emnst Diehl, ntiolagia vce Graca (3rd ed: 3 vols; Leiprig: Teubner, 1919-52), frag. 24 Tine 18, vol 1, p85. [The passige ie from Solon, Fag. 24 fine 1: “temo amir i te agli” — al Ct sik Wolf, "Ma und Gerechiighit bei Solon,” in Ggemvarspoblone diate tale Recs wd de Rechphilsphic: si lr Rud Lan 2 seinen 70. Gabi, Demevios ‘S. Konstantopoulos and Hans Wehberg eds. (Hamburg: Girardet, 1953), pp. 149-64; Kathleen al 239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 assas- sination of one of these tyrants.” The concept seems to be older than that of Frcoman, The Mink and Lif of Sle With Tasaton of Hi Pons (London: Nir, 19265 Wil Ham Jon Woodhouse, Sf te ib A Sy of te arin Pai in At the Sots intry {London Oxford Univesity Pes 103 a Kart Hon, Sli, Salman and Me (Viena LW Sede, 198, p 107 sir Ernest Banker, Grea Pda They: Pat and His Pees 2nd ea; London: Methuen, 1025. [Barker footnotes the sore of the statement Sir Aid Eckhard Zimmer, he Gre Commence Paes nd Bcc in Fotis (Oxford: Caen Press, 181, pp 130-31 El] CE Lord Acton, "Freedom in Anigit,” Misty of Bim, p.7 [Lider Find tion, Egy inh Hy of ie p. 10), and Paul Vinograd, Caled Paps of Pal Vina 2 vos: Onfor Clarendon Pres, 1928), vol, pp 4-42 ‘Cl: Max Poon, Gretsch Fret Wesen und Worden eines Lobonsieas (Heider: Quote und Meee, 1955) Georg Basel, Gicioe Santo Part | of line Darling et ri sch States re re. e; Munich: Beck, 1920) p+17—18; Jakob Aall nese Larsen, “Clee thenes and dhe Development of the Theory of Demoeracy at thes” in Eps tal Thay Prantl t Gg H. Sabin, Miton Ridvas Konvtz and Arhur Edward Murphy; eds, (haa, NY; Cornell Univesity Press, 1918, pp. 1106; Pu’ Re Enowopa daca Alerts soca AvgutFrerch Ply ed, Supplement 7, Gong Wine, ed (Stiga JB. Met Ie, 1940, 3 "honomi” by Victor Ehren (pp 293-30) and Ehrenberg aries “Ori imof Democracy” Misia ef te Ghee [Wea (1950, 515 18, es. 535, anu “Das Harmextitied” Wi San. ech fir aside Pg Ftc in Ly), 8 (1956): 57-68 Gregory Vaso, “Ionomnia,” icon Jura of Pali, 74 (1953) 387-66 nd Joh Walters, The Ls ond Lega Thy of ie Grn Iron Onfer:Clrendon Pres, 1056) chap ["Eunona,Homonomia, henomia” pp. 73-12). The Greek ston mentoned inthe text wile fn in tw versions in Diehl, Adi ic Gc vo 2, lia 109 vo. 2, pp 18-05} and 13 (12) [p. 103) curious istration of the appeal of these songs celebrating moma to nt eightcenth-entury English Whigs the ‘dle in Iitaton of Calistrat” by Sie Wiliam Jones (oho we mentioned eri a the Kink beeen the palital ews ofthe Whig and the evolutionary tion in Rng see The ink of Sir Wiliam ous [13 vol Londo Prine fr J Stockdale and]. Walker, 1807}, vl 4, 1.374) which is headed by dhe Greek text of the slain and afer vent nes in praise of Har modios and Arsogiton, continues: “Then inkl ws Peace; Equal aves and Tibet ‘Nurse of Arta, and exe for Grad People valiant fm, and free! ‘Not les glorious was thy deed, isto din Vir’ seas; Not es bint be hy med, Las, elo Ea Las High in Freedom's temple ais See ig Moar eatsing stad, For collected Vines pra’ Wisdom’ voice, and Valour’ and! ‘Neer sal fate their yes cloe: 240demokratia, and the demand for equal participation of all in the government appears to have been one of its consequences. ‘To Herodlotus itis 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 onomic oligarchy.”"* and Plato even uses the term “isonomy” in deliber- ate 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 Polit he stresses that “it is more proper that the law should zov- en than any one of the citizens,” that the persons holding supreme power ney in blooming regions bles, With Harmodis shall e-pose, With Ayton ves” [The verses refer to Harmostius, a youth, and his older lover, Aristogiton. ‘The brother of the tyrant of Athens Hipparchus, continued making advances towards Harmadius, publily mock- ing the lovers when Harmodius refused to share his bed. Outrage, Aristoitonploted the ass sinaton both of Hipparchs and his tyrant brother Hippias. ‘The pl fed but Hipparehs was kiled while organizing a procesion marking a festival. Harmodins was instandy Killed by p= parchus’ bodyguard and Aristogiton was captured and toruted by Hippias, Rather than reveal the names of those involved in the plot, Arstogiton hurled insults at the tyrant, which so enraged him that he stabbed him to death, Their example was hailed by Athenians as a model of resisx tance to gyanny and asa model for yourg men. Ed CC. also Hinks, vol 4, p. 572, the “Ode in Imitation of Aleaeus," where Jones says with efes= ‘ence tothe “Empress Sovereign Lav” “Smit by her sacred frown “The fen Dsratinn ike vapour sinks lerocotus sre i. 0, ala i. M12, and v.37 uso, Algncine Dasilng des green Stans, p. 47, and Ehrenberg, in Pauly, Sup, sx “Isonomia,”p. 298 "Thvcyes i 62.3-4 and contrast this se of the term in is eitimate sense with his efer- ‘ence to what he desribes a its specious nse, Thueydies i. 82.85 clo Tuokrates Arapagitns Vii 20, and Ponathnaics i 178 "Plato Republivi 337be, 594, S6le "Hyperides, In Deo of Exxnippus 5 (Minor Ate Orr, John Ormiston Burte and Kenneth John Maidment, eds. [Loeb Classical Library; 2 vols; Cambridge, MA: Harvard University Press, L960), vol 2, p48): “Brag €v Snuoxparin pit of veo Eeorea” hpi ex dota’ riot inom eal). Te phrase about the law being king (eames bas [the law as king”) already occurs much earlier. an“should be appointed to be only guarclians and the servants of the laws” andl that “he who would place the supreme power in mind, would place it in God and the laws.” He condemns the kind of government in which “the people govern and not the lave” and in which “everything is determined by a major ity 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.” If we add to this the fol lowing passage in the Rhetoric, we have indeed a fairly complete statement of the ideal of government by lave" “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.” © Aristotle, Plitis 1287 [bk 3, chap. 16, sec. 10) ‘The wansltion used, in preference to the ‘more familiar renderings by Benjamin Joweat, is that by Wiliam Elis, The Pbtis of Art A “Tate on Grerament, Wiliam Elisa (Everyman Hbrary; New York: Dutton, 1917), ® Arsole, Pos, 1282 [bk 4 chap. 4] How fundamental these conceptions remained for dhe Athenians is shown by’ law to whieh Demosthenes refers in one of his oratons (Agent Aisturates 86: ef gaint Tamaates 59) as a law “as good as ever lw was" [The edition Hayek employed is Demosthenes, Ontions 27-26: gina Meio. gone ndeion. gsinstriartes. git Tinwcrates.Aginstcriaeitnn and 2, _Jumes Herbert Vinee, trans. (7 vols; Loch Classical Library; Cambridge, MA: Harvard Univer: sity Pres, 1935), vol. 3, pp. 275, 411.—EdL] The Athenian who had in the opinion that as every citizen had an equal share in civil rights, so everybody shoul an equal share i the laws; and he had proposed, therefore, dhat “it should not be lawl to pro- pose a lve aifecting any indivi, ness the same apple to all Adhenans." This became the Taw of Athens, We do not know when thi happened-~ Demosthenes refered to itn 52 nc Bu ics iterating to see hv, by that time, democracy had aleeady become dhe primary eon ‘eptsuperseding the older one of equality before she lw: Although Demosthenes no longer uses the term "isonomia,” his reference tothe laws itle more than a paraphrase of that old ideal, (On the law in question cf Justus Hermann Lipsus, Das atische eck nd Reciscoylven (3 vols in I; Leipeig: Reiland, 1905-15), vol 1, p. 388, and Egon Weis, Grice Pisa uf ots terishnder Creal Vol 1 Algrine Lkoen(Leipig: Meine, 1923), p 9 (18). also ‘Arnold Hugh Martin Jones, “The Athenian Democracy and Its Critics.” Cambridge Mistrial Jounal, 9 (1953): 10, and reprinted in his dean Demacay, p52 “At no time was i legal in ‘Adhens| to alter law by a simple deeree of the asembly: The mover of such a decree was ible to the fons indictment for illegal proceedings which, upheld bythe cours. exposed the mower to heavy penalties” Aristotle, Ricrc 1354ab [bk 1, chap. 1] in The Works of Aso, William Rhys Robers, trans, Wiliam David Ross ed, vol. Ll (Oxford: Clarendon Press, 1920, [p. 2]. Ido not quote in dhe text the passage ftom Poitcs 131705 [Dk 6, chap. I, ec 8] where Aristotle mentions as ‘condition of iberty that “no magisteate should be allowed any discretionary power at in a few instances, and of no consequence to public busines,” because it occurs in a context where Ihe docs not express his own opinion but cts the views of others. An important statement of is 22‘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’ poli tics, that in a well-ordered commonwealth not men should govern, but the laws,”®" whereupon James Harrington retorted that the “art whereby a civil society of men is instituted and preserved upon the foundation of common 10 follow Aristotle and Livy, the empire of laws, not of men.” 3. In the course of the seventeenth century the influence of Latin write ers 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 imita- tion 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, (0 the injury of others contrary to the law com mon 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 views on judicial discretion i tobe found in Niomackn Bie 1137B.5 (bk. 5, chap, 10] where he argues that the jcge shoul ila gp inthe lave “by ruling as he lave himself wool rile were he there present, and would have provided by aw had he foreseen the case would ase thus anticipating a fatnous clase of the Swiss Civil Code Hobbes, Lcutlan, p. 148, itis characters that Francs Bacon started with this animosity against _Astote, hose books he wished 1 se banned See the itoducion to Francs Bacon, Istaurato Magra [The edition to which Hayek i refersing is most ikely Fron’ Brew Bora de Wren ‘pera anv (4 vols; London: R- Gosting, 1730), with an inteodution by Bacon's contemporary and fiend, the Res. Dr. William Ravsley Iso, Hayek isin errr in suggesting that Bacon wished to ban the work of Aristo. Raley writes: “Though there was bred in Mr: Bacon so early adis- Tike ofthe physiology of Arisate, yet he dil not despise him with that pride and haughtines, ‘sith which youth is wont to be aed up, He ad a jst esteem of tha great master in Tearing and greater than that of Ariotle himself expressed towards the philosophers that went before Bim he enon ae ye ick aor eng hl 2 i ‘monarchy over opinions, as his patron Alexander di over men’ vo *tjmes Harrington, Tie Common Landon: Printed by}. Sete fr Live ‘Chapman, and are to be sold at his shop, 1656), . 2. The phrase accurs soon afterward in a passage in The Lawl of 1659, quoted by Gough, Fandanentl Law ie English Costiioal His tap, p. 137. [The Lele othe Piles and Maxins Concerning Gaverument end Relig, Which are Acre by tase tha are commnycaled Levellers (London: Printed, for Thomas Brewster, atthe ‘The Bibles, tthe West End of Pauls, 1658), p. 5, which maintains that “they assert cas Fun- damental that the Government of England ought tobe by Laws, and not by Men” Ed] "See Samet Parsons Scot, The Cis! Law; Auuig the Tice Tals, the Tastes of Gai, the Rade of Cpe, the Opinion of Puls, th Enactnents of Justinian and the Consiatins of Lo (17 vols in 7; Cincinnati: Cental Trust Co, 1952), vo. 1, . 73 [Table 8, Concerning Public Lav” Law I ‘On the whole of this section se, in addition to the works of Theador Mommsen [partion lasly The Hisay of Rome, Wiliam Purdie Dickson, wans. (new ed: 4 vals: New York: Charles Seribner's Sons, 1885), bk 2, chap. 8.—Eal: Chaim Wirszubsi, Libera as «Plt! Iden at Rome 23‘was gradually formed, by a process very similar to that by which the com: mon 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 cen- tury. Livy —whose translator made people familiar with the term “isonomia” (which Livy himself did not use) and who supplied Harrington with the dis- tinction 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 mod- cm 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 tring te Late Republic and Early Prnipate Cambridge: Cambridge University Press, 1950); and Ulich von Lato, lite wad Hfl de sitchen Fits Beratung cur Kr nd Vinfesans schol des Abode (Bern: Blschker 1953), which came tomy knowledge only after the text ws completed "See William Warwick Buckland and Arnold Duncan MeNais, Baron MeNai, Raman Law and Common Las: Comparison in Ontne (Cabri: Cambridge University res, 1936), Titus Liviu, Ab Cibe Condi iL: “imperia legum potentora quam hominum.” [*The com- mands of the laws are) more posserfal than the command of men.” Ea] The Latin phrase ‘quoted (inexacty) by Algernon Sidney Gin Dae Concerning Goverament i The Winks of ern Shing, Thomas Hollie, with addons and corrections by Joseph Robertson (new ed; Lon- don: Printed for W. Strahan Tun, forT, Becket and Co, sind. Cadell inthe Strand, T: Davies in Rasel Set, and T: Evans in King Stret, 1772), p. 10 [Liberty Fund edition of the Dicuss pi 17]. See alo John Adams, Wink With a Lf the dar, Chaces Francis Adams, el (10 vol Boston: Charles C. Lite and James Brown, 1851), vo. p. 403. Ia Holland's tandation of ity of 1600 [The Ramone Miso, Wien by T Liss of Padua (also containing the Brees of [Lucu Annaevs Floris), Philemon Holland, trans. (London: Printed by Adam Islip, 1600), p. (4) these words are rendered as “the authoritie and rae of aes, more powerfll and enightie than those of men.” The words I ave italicized prewide the earliest stance known tome in which “rule” is used in the sense of “government” or “dominion.” CE Walker Rdegg Cicero and der Humans: formate Unterachugen ter Pana and Erasmas rich: Rheinverag, 1916), and George Holland Sabine and Staley Barney Smith, “Introduc to Mares Tullius Cicero, On te Commavats (Columba: Ohio State University Pres, 9), pp. 74-99. On Cicero's influence om David Hume in particular see David Hume, Mp (ee Lif Hay, vol. 1, p. 2 [Liberty Fund edition, p. xxx) and John Lie, Hume's Paosopy ‘of Huan Natur (London: Methuen and Ca Li, 1932). pp. 241-3, who speaks of the Ccernianf2- ‘our of Hume's ethical thinking” (Hume writes “I found an unsurmountable aversion to every= thing but the pursuits of philosophy and general learning; and while I fancied Twas poring upon ‘oct and Vinnis, Cicero and Ving were the authors Twas secrily devouring” Johannes Voet was au eminent eighteenth-oentury Dutch legal theorist, who attempted to systematize Roman atch cis la; Aroleis Vinius (1588-1637) was also a Dutch legal theorist and a contempo- rary of Grotivs, Ed) ®*MareusTullus Czar, De Domo Sua, 1383 (Loeb edition, pp. 172-73), where he speaks of “the pocular mark of @ fe comm unty—the right, I mean, accordance with which it isunia flor any aulegeslegum, 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 ‘beter of ci piege or pal propery o be made without a vert fe sna, of pope of ‘he cour const od win each ype of fons “*Mareas Till Cicero, Delius 10, [Lege gum translates literally as “laws inthe legals.” Eat] These “higher ls were recoized bythe Romans, sho inseribed in their ste prxion stating tha hey were no sacrosanct oe Carin, igh Lac” Bag, pp. 12-10 (aan Lae Rese, 42 1928-20) 157-045 Sted gs, vl 1 pp. 0 Hs Liberey Fund eon pp. 11-17], and teterature there quoted "Marcas Tilus Cicero, Po Chet 53.146 “ormeslogu serv sus ut Heese pose rns” [Cicero writes: “Lega minis maga leg interpreters, legun dee idcirco omnes ert suns uber ese poms” ("The maghtaes who amine the a, the jurors who interpret kalo ws inshort—aey the law tothe end that we may be fee") EA] Cr Monesquicu, Sito he Las [Dk 26, chap. 20a. 2p 70; French eon, vl. 2, 772]: “Libery consists, principally in nt bing forced o doa thing where the ls do not ‘hlige: people are in thin ate ony a they are governed by cl ws: al because they ive tinder dune chills they ae Bie” ['Laliberé conse prinipalement ne pow Ee nce Asie une chowe quel lol wordonne pas ton nest dance état que parce quon et govern par de is hes nous sommes donc Hrs, pace que nous vivo se es los cles} Valse, Pu sar erent (1752) (Burs compte, Lois Mola dl (32 vols ai Garnier fies 1877-15) vl. 25, p. 526; “La ibe consisted ne depende que de is” [Tab- erty consis of depending only upon the lt Jean Jaoqes Reta, Lt ris dea Mon tage, Leter 8 "he Pal Wig of Jean Jaques Rasa, Chats Elwyn Vaughan, ed ‘cited fom the Orginal Manuscripts and Authentic Edition (2 vol; Cambridge: Cambri University Pres 1915), vol. 2. p. 255, There ino iberty without avs, no where somone above the ls ven inthe sate of nature, mani fee only heeaune ofthe tral as, hich “nin everyone” [The orga French reads“ nya done point de ber sats Lo ni ob ‘quel eta dessus des Loe dans état meme ‘homme west Hove qu’ la aver ‘lel La naturelle qui commande a tous” Ltrs Eertes de la Montagne” (utiome Ler) ure, Conpt,Beroae Gagebin aad Maret Raymond, ed Bibliotheque de la Pade (3 ‘ols Paris Eelons Gaia, 1968), vo. 3, p82], Mateus Tl Cicero, De gs 122: "Magiratum lgem exe loquentem.”[“The mage iserate the law speaking” Eal] CX. Sir Edward Coke [*Seveth Report,” in The Ropar of aa Cal, Kt: In hirer Parts, Jon Henry Thomas and Jon Farquhar Fraser ed (15 pars in vols Londen} Buterworh a Sn, 1825, p76 p. 6; Livy Fa ein, ol, 174] in Calvin's Cae (a quoted in chapter 4 note 18, Jade et ex loguens” [The jae B the spoken ln.” Ea and the eightcnth-cenary legal ax, "Rex lis et qua ex ages” [The king is nothing other than the law in action" Ed; alo Monteqie, Sit of fhe Ls, bk. chap ol 1p. 15% French eon: vl 2p. 408) “The nasonal judges are sno more than he mouth hat preosnce the word of the ly mere passive bring, nespable of madera ethers oreo orga” [-Ma sues de a nai rman von cit ‘qe la bouche qu prononce les parce de aloes ves inanimés qu en pewvent modern Ta force ila sigctr™ Ed. The phrase was ill repeated in the United Stats by Chit Justice John Marshal (Odo x Bak of United Sat, 22 US. (9, What 738 at 060), when he spoke of judges a8 “the mere mouthpieces of the law” and “capable of ling nothing” [In ft, what arhal wrote was: “Courts ate the mere instruments of Ue lve and can wil nothing" El] 25upon certain attributes of the laws its generality and certainty, and the restrie- tions it places on the discretion of authority “This classical period was also a period of complete economic freedom, to sshich Rome largely owed its prosperity and power.” From the second century ap, however, state socialism advanced rapidly.” In this development the free- ‘dom which equality before the law had ereated 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 aver economic life. The outcome of this process, which ‘culminated under Constantine, was, in the words of a distinguished stu- dent of Roman law that “the absolute empire proclaimed together with the inciple of equity the authority of the imperial will unfettered by the bar- rier of law. Justinian with his learned professors brought this process to its conclusion.” Thereafter, fora 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 con- ception 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 differ- See Michael Kanovitch Rostovize, Glia und Witch i rnin Kairih, Lothar Wicker, erins (2 vole; Leipzig: Quelle nel Meyer, 1931) vol 1, pp. 49 and 140, "Cr. Friedrich Oertel, “The Economic Life of the Empire,” in Cambridge Ancien Fiery. Vol 12: The bnpeial Geis and Reeser 1.0. 193-324 (Cambridge: Cambrage University Pres, 1939), pp. 282-1, esp. 270, and the "Appendix" to Robert von Pohlmann, Gah dr sean Frage tnd des Secatinus in de antien Ut Sd ed; 2 vols; Muni: C. H. Beck, 1925), ol. 2, pp. SUL 185; also vm Luton, Bite nd Hl der icon Fri, pp 87-107; Michael Ivanonitch Ros- tostaelf, “The Decay of the Ancient World and Its Economic Explanation,” Eawmic Hor Review, 2 (1930): 196-214; Tenney Frank, “Epilogue: The Economie Decay of the Roman World” in Exam Surg of Ancient Rane (6 vos Bale: Johns Hopkins Press, 1933-40), vol 5, pp. 296-304; Henry Joseph Haskell, Te Naw Deal in Old Rome: How Gasman inthe Ancient inld Trin Deal with Men Plans (New York: A. Knopf, 1959); andl Ligh Roberto Ena, Greatness and Decline of Planned Economy in the Helles Worl,” Asks 2 (1948) [part 1, pp. 198-210; part 2, pp. 289-316}, reprinted as Creams and Dei of Plane Economy x he Hel. leit Winld Herne: A. Francke, 1950) "Pri Pringsheim, “Jus aequum und jus stricta,” ZetschiaerSasign-Sfmg fir Rechte. sce, Romansch Abang 42 (1921); 668. [The original German reads: “Das absolute Kai- sertr verkindet mit dex aeqitaszugleich die von der Schrank des jus befeite Antoritt des laiefichen Wills Justinian mit seinen gelebrten Professoren bringt die Entwicklung umm Abschlusse.”—Ed Cl. also the same author's Hoke and Ende der RimaichenJursprdene: Vorrag halen bei der Bribe cisunscafichn Gesell am 3. December 1932 (Feiburg in Baden: Speyer tind Kacener, 1935) "See Adhémar Esmein, “La Maxime Prinps legis sls et dans ancien droit public ran ai” Bigs in Lgal History Read Bee the Iceratonal Congres of Histrical Sais Held in Lond in 1913, Sir Pal Vinogradoft, ed, (London: Oxford University Pres, 1913), pp. 201 26ent 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. 'To the nineteenth-century historian the measures of James I and Charles I which provoked the conflict might have seemed antiquated issues without topi cal interest. To us the problems caused by the attempts of the kings to set up industrial monopolies have a familiar ring: Charles I even attempted to nationalize the coal industry and was dissuaded from this only by being told that this might cause a rebellion." Ever since a court had laid down in the famous Case of Monopolies that the grant of exclusive rights to produce any article was “against the common law and the liberty of the subject,” the demand for equal laws for all citizens became the main weapon of Parliament in its opposition to the king’s aims. Englishmen then understood better than they do today that the control of production always means the creation of privilege: that Peter is given permis sion to do what Paul is not allowed to do. Tt was another kind of economic regulation, however, that occasioned the first great statement of the basic principle. ‘The Petition of Grievances of 1610 was provoked by new regulations issued by the king for building in Lon- on and prohibiting the making of starch from wheat. This celebrated plea of | the House of Commons states that, among all the traditional rights of Brit- ish subjects, “there is none which they have accounted more dear and pre cious than this, to be guided and governed by the certain rule of law, which «giveth to the head and the members that which of right belongeth to them, and not by any uncertain and arbitrary form of government. ... Out of this °C John Ulric Nef Iadutey ond Grwrmmen in Fane and Engle American Philosophical Society, 1940), p. 114. An interesting account of ho late ‘orn of the Press thus came to England al bt incdenally tothe elimination of a commercial ‘monopoly i given by Maurice Wiliam Cranston, Jon Lace o Bigraphy (London: Longmans, 1957), p 387 "Diy Alan [alo speed “Allen” (“The Case of Monopolies") Co, Rep. 84 b, 77 Eng Rep. 1260 (1603); Moore 671, 72 Eng, Rep. 830 (1603); Noy 178, 74 Eng. Rep. 1131 (1603) (The ease also appears in the Liberty Fund edition, vo. 1, pp. 394-404, [The pase “aginst the common law because it was against the Hberty of the subject” appears—in law French in Dasenant s Hance i quote in English by Coke in Dar ler (77 Eng, Rep. 1263). al] The principle seems to have been state ist fr years eae in Daven! x Hs [The Merchant Tailors’ Case”) Moore 576, 72 Eng Rep. 769 (King’s Hench 1590], when it was suid that “prescription of such nature, a induce sole rade o talc to.a company ot person, and to exclude all others is against the lav” See Willa Lewis Lets, “The English Common Lave Concerning Monopolies” Uns of Chiegy Emo Review, 21 (1953-54): 835-85, andthe two ticles by Donald Owen Wegner, “Coke andthe Rise of Eeonomie Liberalism,” Esonmic His ty Review, 6 (1935-36): 30-44, and "The Common Law and Free Enterprise: An Eatly Case af Monopoly” Ecaomie Hity Rei, 7 (1936-87) 217-20. 207root has grown the indubitable right of the people of this kingdom, not to be made subject to any punishments that shall extend to their lives, nel, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament.” It was, finally, in the discussion occasioned by the Statute of Monopolies of 1624 that Sir Edward Coke, the great fountain of Whig principles, devel oped his interpretation of Magna Carta that became one of the cornerstones of the new doctrine. In the second part of his Institutes ofthe Laws of England, soon to be printed by order of the House of Commons, he not only con- tended (with reference to the Case of Monopolies) that “if a grant be made to ‘any man to have the sole making of cards, or the sole dealing with any other trade, that grant is against the liberty and freedom of the subject, that before did, or lawfully might have used that trade, and consequently against this Great Charter”;" but he went beyond such opposition to the royal preroga- tive to warn Parliament itself “to leave all causes to be measured by the golden and straight metewand of the law, and not to the incertain and crooked cord of diseretion.”"” ‘Out of the extensive and continuous discussion of these issues during the Civil War, there gradually emerged all the political ideals which were thence- forth to govern English political evolution. We cannot attempt here to trace their evolution in the debates and pamphlet literature of the period, whose ex- traordinary wealth of ideas has come to be seen only since their re-publication in recent times." We can only list the main ideas that appeared more and Great Britain, Public Record Office, Calon of Sate Pues, Dames Sees, of he Reig of ames 1 [Preserved inthe State Paper Department of Her Majess Public Record Office), Mary Annie Everett Green e(5 vols; London: Longman, Brown, Green, Longmans, and Roberts, 1857 72), vol. 5, July 7, 1610. [The Gander of late Papers doesnot generally nchade dhe fll ext of the documents to which creer, but rather to documents held in the British National Archives. The Citation should presumably therefore be to the original document, details of which should be available from the National Archives. transcript of the petition can be fund in Paedigs i Partoment, 1610. Nol. 2: Howe of Commons, Eizabeth Read Foster ed, (New Haver Yale Univer Sty Press, 1956), pp. 257-71. The pansige quoted is located at p. 258, Ea] "Sir Edward! Cake, The Stand Part of the fine of he Lacs of gland. Containing the Expat of Many clin and Modern Statutes (London: Printed for B. and R. Brooke, 1797), p. 47 (Liberty Fund edition, vol. p. 851). [The quotation ean also be found in he Galdm Pasiage i th Gat (Charter of Eland, Caled Maga Carta othe Charter f English Lees Grad by Kg Job tH Sub jets in the 178 eno sReign in Raning-Mead(Lonelon: Pentel forthe use of the Landon Asso~ ‘ation, 1776), p. 10.—Edl} "Sir Eaward Coke, The Sand Pit the Ista. (Hayekis in error in ascribing this quotation to the Second Part of Coke's Institutes, Ii infact, to be found in the Four Pat of he ster of the Laces of gland, Concerning the Jrstcon of Cua (London; Printed for E, and R, Brooke 1797), pp. 40-41; Liberty Fund edion, vol. 1, p.1143.—Ed,] See Sit Wiliam Clarke, The Clake Papo Section ftom the Paper of Wilian Clare, Secretary the Counc ofthe Army, 1647-1649, and to Gveral Mons andthe Commanders of the clrmy Seaton, 248more frequently until, by the time of the Restoration, they had become part of an established tradition and, after the Glorious Revolution of 1688, part of the doctrine of the victorious party ‘The great event that became for later generations the symbol of the per- manent achievements of the Givil War was the abolition in 1641 of the pre- rogative courts and especially the Star Chamber which had become, in F. W. Maitland’s often quoted words, “a court of politicians enforcing a policy, not 4 court of judges administering the lav.”*" At almost the same time an effort was made for the frst time to secure the independence of the judges." In the debates of the following twenty years the central issue became increasingly the prevention of arbitrary action of government. Though the two mean- ings of “arbitrary” were long confused, it came to be recognized, as Parlia- ment began to act as arbitrarily as the king,” that whether or not an action ‘was arbitrary depended not on the source of the authority but on whether was in conformity with pre-existing general principles of lave? The points ‘most frequently emphasized were that there must be no punishment without a previously existing law providing for it,” that all statutes should have only pro- spective and not retrospective operation," and that the discretion of all mag- 1651-1660, Chasles Handing Fit, e. (4 vols London: Printed fr the Camden Society, 1891 1901); George Peabody Gooch, English Denacaic Is i th Seeteth Ceatey (Cambridge: Casa bridge University Pres, 1898}; Theodore Calin Pease, The Lally Mocement: A Sud nthe Bis tora Palit Theory of te Engh Gl War Washington, DC: American Historical Assocation, 1916); Willi Haller, ed, Ton Ley the Prtan Resolution, 1658-1647 3 wos; New York Columbia University Pres, 1934), Arthur Sutherland Pigott Woodhouse ed, Pilaniom andi ey: Being the Ary Dates (167-9) fs the Cloke Manas with Suplometary Ducane (Lon don: JM. Dent and Sons, 1988) William Haller and Godtrey Davies, ed, The Lvllr Tat 1647-1653 (New York: Columbia University Pres in cooperation with the Henry E. Hunting- tom Library ane Art Gallery, 1914); Don Marion Wolfe, Laellr Mnf of ke Parton Resolution (New Yorks. Nelon and Sons, 1944); Willa Halle, ley and efrmation i the Pitan Ra latin (Nev Vork: Guba University Press, 1953); Perez Zagovin, Mistry of Pita! Tag ie the Eglsh Reon (London: Routledge and Paul, 1954) Frederic William Maitiand, The Constitutional History of England: A Cour of Ltrs (Camm bridge: Cambridge University Pre 263, 1 Charles Howard Mellwain, “The Tenure of English Judges,” in Cantona andthe (Changing Wind: Caleta Papers Cambridge: Cambridge University Pres, 1959), p. 300, See Gough, Fundamental Law in English Cnsittonal History, pp. 76AL and 158. "Samuel Rawson Garciner, Mistery ofthe Gret Civ Mar: 1642-1049 (new ed ols London:Long- mans, Green, and Co, 1858), v3, pp. 382-94, "This one ofthe main topics of the recorded part of the Army Debates (ee Arthur Suter lana Pigott Woodhouse, ed, Parizanam and Lie Being th Ary Debts (1647-49) fom he Clarke Manusepts, With Supplementary Deconnts [London: J. M. Dent and Sons, 1938}, pp. 336, 315, ‘ane 472). erives fiom Si Balad Coke, The Sond Part ofthe I ue, 2 ri” [PA new aw ‘ought to regulate what isto follow, not the pas.” The quotation carries the meaning that any 29istrates should be strictly circumscribed by lav.” Throughout, the governing idea was that the law should be king or, as one of the polemical tracts of the period expressed it, Lx, Rex. Gradually, two crucial conceptions emerged as to how these basic ideals should be safeguarded: the idea of a written constitution™ and the principle of the separation of powers. When in January, 1660, just before the Resto- new law that is made ought to affect future transactions, not past ones. The quotation appears in chap. of the Send Poof he Fstier marked “Merton,” which is not included in dhe Lib ‘erty Fund edition —Eal] See Woodhouse, Pramion end Fibs, pp. 154HE and 3531 Samuel Ruthesford, La, Rex: The Law and the Prince A Dispute or the Just Prgatie of King ‘and Pople (London: Printed for John Field, 1644); excerpts are given in Woodhouse, Pantano «and Libs, pp. 199, 212. The phrase of the tide goes back to the ancient Greck mmos bss “The iswe of lave versus arbitrarines was not used only by the Resndheads it also apes re= ‘quenly in the Royalist argument, andl Chases I in his Big Chas hi Sch Made wp he Sd 1 Whichal- Ca, Imei bore his sctin, Tusa the 30 of Jen 1648. With a Relatinof he Mane of His Gang to Fuca (London: Printed by P. Cole, 1648}, p. 6) could assert tha “Their Liberty and their Freedom consists in having of government those Laws, by which their Life and their Goorls maybe most thee oven isnot for having share in Government.” "See Samuel Rawson Gardines, The Custntional Dosonat of the Patan Resto, 1625-1660 Sid ed. rev; Oxford: Clarendon Pres, 1906). Much dhe best bref account is now tobe found in Francis Dunham Wormuth, The Orig of Maden Costtutonalan (New York: Harper, 1949) sce also Walther Rothschild, Dr Gk der gshribnenTifasng inde encom Reoation (Tabin- ‘gen: J,C. B. Moh, 1903; Margaret Apwood Jucson, he Cris of te Contain: A Eva in Con stwinal end Pull Thonght in England, 1603-1945 (New Brunswick, NJ: Rutgers University Press 110); the work by Gough, Fundanentl Law in Engh Contain istry alo cf. i= ver Cromwell, Ole Crome ates nd Specs, Thomas Carle ed. 2nd ed. enlarged; 3 vos London: Chapman and Hall, (246), ve 3, p. 67 [Speech delivered before the First Protectorate Parliament, 12 September 1654]: “In every Government there must be somewhat [e] fund ‘mental, somewhat ikea Magia Cota, which must be standing, be unalterable. "The idea ofthe separation of powers seems firs to have appeared in 1645 in a pamphlet by John Lilla (se Pease, The Levllr Moonen. 114) (The pamphlet co which Hayek refers is “etited Eglo’ Birthright Fused. Ee, andl son after that it occurs frequenth for instance in John Miton's Hiatus (1640), in The Paw Winks, With « Preface, Preminry Remark, and Ns, James Augustus St Jon, ed. ( vols; London: H.J- Bohn, 1884, vol 1, p. 363: "In al ‘wise nations the legislative power, andthe judicial execution ofthat power, have een most com- only cistnet, and in several hand; but yet the former supreme, the other subordinate”; and inJohn Sadler, Rights of te King (1619), quoted in Worrmuth, The Orgs of Moen Const ation, . 6: “Temay be much disputed, that the leita, juan executive power should toe in stint subjees by the law of nature” [The orginal source is Anonymous (John Sadler), Rights of the Kingdon , Casts of oar Anes: Teuhing the Duby, Powe, Election, or Sucesion of os Kings and Parianens (London: Printed by Richard Bishop, 1649). 92.-Eal] The idea was very filly elaborated by George Laven, cn Exaninatin ofthe Polite Part of Mr Holts, Hs Lathan (Landon: Printed by R. White for Francis Tyton, 1657) (See A. H. Maclean, "George Law son and John Locke.” Candrdge Hisaraljurnal 9 [1917]: 69-78), Additional references will be Found in Wormuth, Ong 4f Modern Cansittonalisn, pp. 58-72, and, forthe later development, pp. 191-206. One partcuanyusetul guido to the iter ature ofthe eighteeih-cetury English Wis is the wrk of Carlne Robbin, The Eighoonth Contry Commonweaten (Cambridge, MA: Harvard Uri veraty Press, 1959), 250ration, a last attempt was made in the “Declaration of Parliament Assembled at Westminster” to state in a formal document the essential principles of a constitution, this striking passage was included: “There being nothing more essential to the freedom of a state, than that the people should be governed by the laws, and that justice be administered by such only as are account- able for mal-administration, itis hereby further dectared that all proceedings touching the lives, liberties and estates of all the free people of this common- ‘wealth, shall be according to the laws of the land, and that the Parliament will, not meddle with ordinary administration, or the executive part of the law: it being the principal part of this, as it hath been of all former Parliaments, to provide, forthe freedom of the people against arbitrariness in government.”"" If thereafter the principle of the separation of powers was perhaps not quite “an accepted principle of constitutional law," itat least remained part of the ‘governing political doctrine. 5, All these ideas were to exercise a decisive influence luring the next hun= dred years, not only in England but also in America and on the Continent, in the summarized form they were given after the final expulsion of the Stuarts 1688, Though at the time perhaps some other works were equally and per- haps even more influential," John Locke's Second Treatise on Cizil Government is so outstanding in its lasting effects that we must confine our attention to it “Worm, Origins of Madera Cnsttatonain, p71 thi, p72. The to main authors whom a fuller account would mainly have to considerate Algernon Sidney and Gilbert Burne. The chief points relevant to usin Sidney Dienst concerning Gio- ‘rama ist published in. 1698) are chat “liberty solely consists in an indlependeney upon the wil ‘of another” which connects with the maxim “poteniora erantlegun quam hominam impe= Fa" (Inks, p10 [Liberty Fund edition, p. 17), that “ws that aim atthe public good make ho disinetion of persons” (Winks, p. 150 (Liberty Fund edition, p. 130), that laws are made “because nations will be governed by rule, and not arbitrarily” (Hrs, p. 938 (Liberty Fund ‘edition, p. $92) and that las “ought to aim at perpetuity” (Works, p. 482 [Liberty Fund edie tion, p. 359). OF Gilbert Burners numerous writing, see particularly his anonyrnoxly pub shed Engi in th Measures of Submision tthe Saree thr and of he Gund yp hich i ay be Lael er Nees or Sbjct te Duind Tir Religion, Lives, and Liberties (London, 1688); quoted. in the Harlin Miselen: oA Galton of Scare, Caos, an Entraining Panphes and Tracts, Wil Fam Olds, ed (12 vols; London: Printed for R, Dutton, 1808-11, val 9, p. 204: “The plea for Tiberty ales proves self ules it appears that it given wp, o Finite by any special ee ment... In the management of this cv sore, great distinction isto he made between the power of making laws fr the regulating the conduct of it, and the power of exccuting those Taw the supreme authority must sill be supposed to be lodged with those who have the lei Intve powcr reserve o thems; bu not with those who have only the executive, which x plnly 205-6: "The measures ‘of power and, by rust be taken from the expres laws of any state, ‘or body of men, fom the oaths tha they swear, or from immemorial prescription, and a long possession, which both give ate, and, in along tract of time, make a bad one become good: ‘Since prescription, when it passes the memory of man, and isnot disputed by any other pre= tender, gives, by the common sene of all men, just andl good tile So, upon the whole mater, 21Locke's work has come to be known mainly as a comprehensive philo- sophical justification of the Glorious Revolution: and itis mostly in his wider speculations about the philosophical foundations of government that his orig- inal contribution lies. Opinions may differ about their value, The aspect of his work which was at least as important at the time and which mainly con- ‘cerns us here, however, is his codification of the vietorious political doctrine, of the practical principles which, it was agreed, should thenceforth control the powers of government." While in his philosophical discussion Locke’s concern is with the source ‘which makes power legitimate and with the aim of government in general, the practical problem with which he is concerned is how power, whoever exer- cises it, can be prevented from becoming arbitrary: “Freedom of men under the degrees ofl civ authority are tobe taken either fom express aw immemorl esto, ‘or from parila oath, hich the subjects sora other prints his lo be al doen fora principe that, ial the caputes been power and ier; power mnt aways be proved but iberty procs il che one being founded upon postive law and the other upon the law of nature” Va, p. 200: "The ee design of our whol land al he several rls of ou constr tution it secre and maintain our br” was to thi tract that a contemporary Cantinen- tal disanerer of English Hbery sacha Guy Mite (Be pie de Grane Birtg, p51 13), primary refereed ain his wrt: Mibge contend hat "na sujet in thew so many fundauental and inherkable Herts a the people of England” and that ‘wos thertore mest happy and preferable to tha of al Europe [Hayek seve quot ing rom the German tation of 171th Git adic Stat on Gg Bite dnd tov der aarti ej Beroharl Heinzcman trans (Lap Verlag Mori George ‘Weidmanns, 1718) pp, 312-13. The German read “keine Unterthanen in der Wel, des vil fundamen nd rice Feycen genie, wie das Volk in Englan?” and “sein Stand es) ilcselig und r allen Europaischen Unterthanen hin. vorauiehen” al) This may stil be sid even though it now appears that the Tree was dae before the rewhtin of 168 (See Cranston, Jon Locke: Bopapy, 326, and especialy Pee Lasts it~ ‘ductor essay in Joba Lock, Two ates of Goverment A Cra! Eon, Pela Lasle. (Can- bldg: Cambie Univers Pres, 1864 ch we ae ere qutng ) CE. Job Wiedholft Gough, Jan Lor’ Pita! Phish Eight Suds (Onfrd: Clarendon Pres, 1950, ‘The extent wo which Locke in dealing wih the pints here discs merely sum- smarined views long expressed by layers af the period tl deserves td: Espey important in this connection i Sit Mathew Hale, who, in a maniscrpe reply to Hobbes hich was wre ten about 1673 and which Locke sly to have know ce Aubey's eter to Locke quoted in Cranston, uh Lac A Boal. p. 152), argued that “to avi that great uncertain inthe pplication ob reason by partclar persons to particular instances and so othe end that men tight ert by what rue and mee to fve ad poses migh ot be wer the Unknown arbitrary certain teaxon of particular perons, has ben the pine resus, thatthe ‘wiser sort of the word have inal ages agree! upon some certain ls and rales ae meth ‘uso adminsvation of common juni, and these to be as particular and eran could be ‘ell thought of "Sir Mathew Hales Crcims on Hobbes Dislgue ofthe Common Tass el aan appends to Wiliam Seale Holdsworth, Hiss of Engl Lx [Lamdon: Me 924), wl, p 503. Se alo Job Greve Agud Pocak, The Arlen Contin end te Foul Law New Yak CambrgeUnverty Pes, 1957) 252government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my ‘own will in all things, where that rule prescribes not: and not to be subject to the inconstant, uncertain, arbitrary will of another man.”*" It is against the “irregular and uncertain exercise of the power” that the argument is mainly directed: the important point is that “whoever has the legislative or supreme power of any commonwealth is bound to govern by established standing laws promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the forces of the community at home only in the execution of | such laws. Even the legislature has no “absolute arbitrary power,"" “can- not assume 10 itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promul- «gated standing laws, and known authorized judges,”® while the “supreme executor of the law... has no will, no power, but that of law. Locke is loath to recognize any sovereign power, and the Treatise has been described as an assault upon the very idea of sovereignty. The main practical safeguard against the abuse of authority proposed by him is the separation of powers, ‘which he expounds somewhat less clearly and in a less familiar form than did some of his predecessors.”' His main concer is how to limit the diseretion of “him that has the executive power,” but he has no special safeguards to offer Yet his ultimate aim throughout is what today is often called the “taming of power”: the end why men “choose and authorize a legislative is that there may be laws made, and rules set, as guards and fences to the properties of all the members of society, to limit the power and moderate the dominion of every part and member of the society.””» 6, Itisa long way from the acceptance of an ideal by public opinion to its full realization in policy; and perhaps the ideal of the rule of law had not yet “John Locke, Sond Teas, see. 22, . 18. Thi, sec, 127, p63, “thi, see. 131, p64, Mi see. 137, p69, Thi see. 136, p68, thi ee. 151, p75. "See John Neville Figs, Te Din Right of Rn (2nd, with three addtional essays; Cam= bridge: Cambridge University Press 1914). 242: Wiliam Searle Hosworth, Se Zsa om (Ou Lal Hisry ‘New Yorke Macmilan, 1928), pp. 126-27; and Charles Edwyn Vaughan, Sid ies th Hor of Pita Philly bj and afer Rouse (2 vols; Manchester: Manchester Uni- verity Press, 1939), vol. 1, p. 13. "John Locke, Sond Trae, chap. 13, pp.74-79. Compare n. 58, above on the separation of powers, John Locke, Stam Tras, see. 159 John Locke, Send Tras se. 2 p20, p17 253been completely put into practice when the process was reversed two hundred years later. At any rate, the main period of consolidation, during which it pro- _gressively penetrated everyday practice, was the first half of the eighteenth ‘century From the final confirmation of the independence of the judges in the Act of Settlement of 1701,” through the occasion when the last bill of attainder ever passed by Parliament in 1706 led not only to a final restatement of all the arguments against such arbitrary action of the legislature” but also oa reaffirmation of the principle of the separation of powers,” the period is ‘one of slow but steady extension of most of the prineiples for which the En- alishmen of the seventeenth century had fought. ‘A few significant events of the period may be briefly mentioned, such as the occasion when a member of the House of Commons (at a time when Dr Johnson was reporting the debates) restated the basic doctrine of mula poena “sine lge, which even now is sometimes alleged not to be part of English law: CL. George Macaulay Trevelyan, Engi Social His: A Sure of Six Contr, Chace een Vicor (London: Longmans, Green, ant Co, (942), pp. 245 and 350M, esp. 351: "The specific ‘work of the eatfier Hamenerian epach was the etalishment of the re of Is; and that bi With all ts grave faults, was atleast a lw of freedom. On that solid foundation all ove subse ‘quent reforms were bul” On the significance ofthis event see particularly Holdsworth, Hist of English Lav, vo. 10, ‘spp B47: “As the result of all these consequences ofthe independence ofthe cout, the doc= trine of the rule o supremacy of the law was established i ts moder form, an became per haps the most distinctive, andl certainly the mont salutary of all the characterises of English "es inflence was revived in the nineteenth century by the dramatic account given of the ‘pizode in Thomas Babington Macaulay, Baron Macatlay, History of gland om the lesion of Jans (Everyman ed. 4 vole; London: J M. Dent, 22, vol 4, pp. 272-92, [The “events described concern the attaining ad exeeuion of Si Jobin Fenvsck in 1596, Te las bill fof ltainder was infact enacted by Parliament in 1798 against Lord Edward Fitgeral for his participation in the Ish Rebellion of that yea, Bill of atainder were finally abolished in Great Briain in 1870,Ee) CE. also Daniel Defoe, The History ofthe Kiaih Pion (London, 1701), and his so-called Lege Memoria (1701) [A Memorial fom the Gentlemen, Freeholders, and Inhabitants of the ‘Counties of ———, in Behalf of Themselves and Many Thousands of the Good People of En- land’] in The Winks of Dani Dyfi vols; London: John Clemens, 1813), vol. 3, p.3 [no com tinuous pagination; p. 5 of the pamphlet in question), where he waite that “Englishmen are rho mo to be slaves to Parliaments than to Kings.” See on this also Mcfiwain, Consitaiona fam: niet end Moder: A Cantonal erection ee; Uhaca, NY: Cornel Universiy Pes, 1947), . 150, n.6 [Liberty Fund edition, p.5,n. 6) CL, for instance, Sir Alfred Denning, Baron Denning, Feadbm ander the Law (London: Ste- ven, 1919}, pH, where he sys with rexpect to the Continental doctrine Vil crn, mle oo sine lige “In this country; hossewer, de common Taw has not Fite itself in that way: Tis not contained in a cade but in the breast of the judges, who enunciate and develop the p ciples needed to deal with any new situations which arise.” See also Stefan Glaser, “Nullam ‘rimen nulla poena sine lege,” Jura! of CmporatieLaidaton and International Lax, Srl sex, 24 (1942: 29-11 Inthe form quoted, the Latin maxim dates only from the endl ofthe eighteenth century (see chap. 13, n. 2, below), but there was current in eighteenth-century England the 24