Certainty of the Law

In the closing paragraphs of the third chapter which I covered in my previous post, Leoni concentrates on the last aspect of Hayek’s theory of the “rule of law” – “certainty.” Before doing that however, he writes about why Dicey considered “the exercise of the rights of the individual under the English constitution [to be] more certain than the exercise of similar rights under Continental constitutions.” The reason Dicey gave was the skill of the English “in contriving remedies connected with these rights.” Though Dicey thought that the difference between the unwritten English constitution and the written one of France was merely formal, he noted how they varied in practice.

[G]reat practical differences had been revealed by historical evidence relating, for instance to the French Constitution of 1791, which proclaimed a series of rights, while “there never was a period in the recorded annals of mankind when each and all of these rights were so insecure, one might almost say completely nonexistent, as at the height of the French Revolution.”

What does “certainty of the law” refer to, Leoni asks? As far as Hayek is concerned certainty is important because it has “contributed much to the greater prosperity of the Western world as compared with the Orient, where the certainty of the law was not so early achieved.” But, according to Leoni, neither Hayek nor Dicey analyzed the concept very deeply. For many scholars, certainty is all about written rules. But neither the English common law nor the constitution is written. Leoni says, this clamor for law in the “written” form arises from the increasing use of statutes—statutory law.

General regulations laid down in due time and made known to all citizens make it possible for them to foresee what will happen on the legal stage as a consequence of their behavior, or, to use the words of Professor Hayek: “as a general rule, circumstances which are beyond his [the individual’s] field of vision must not be made a ground for his coercion.”

Leoni notes the Greek origin of this idea of certainty—written law known in advance. And this spread across Europe.

In brief, the Continental idea of the certainty of the law was equivalent to the idea of a precisely worded, written formula. This idea of certainty was to a great extent conceived as precision.

But is this meaning the one which is included in the English “rule of law”? He then says that certainty of this kind isn’t very helpful.

We can set aside for the moment the questions arising from the fact that rules may be perfectly “certain” in the sense we have described, that is to say, precisely formulated, and be at the same time so tyrannical that nobody can be said to be “free” by behaving according to them. But there is another inconvenience that also results from adopting such general written laws, even when they do allow us considerable “freedom” in our individual behavior. The usual process of law-making in such cases is by way of legislation. But the legislative process is not something that happens once and for all. It takes place every day and is continually going on.

[…]

All these rules are precisely worded in written formulae that readers or interpreters cannot change at their will. Nevertheless, all of them may go as soon and as abruptly as they came. The result is that, if we leave out of the picture the ambiguities of the text, we are always “certain” as far as the literal content of each rule is concerned at any given moment, but we are never certain that tomorrow we shall still have the rules we have today.

This is “the certainty of the law” in the Greek or Continental sense.

The Greeks might have produced great philosophers but their idea of “certainty” is quite unhelpful. There is, though, another civilization which was known for its laws. And their conception of “certainty” is what is built into the English “rule of law.” Rome.

The above idea of “certainty,” Leoni writes in the next chapter—-“Freedom and the Certainty of the Law”— could be called “the short-run certainty of the law.” The Romans, however, viewed “certainty” differently. Its not that they did not have statutory law. They did, in the form of constitutional, administrative and criminal law. But very rarely did this intrude into the private domain. Leoni writes-

This meant that whenever a difference arose between Roman citizens about their rights or their duties according to a contract, for example, they could rarely base their claims on a statute, on a written rule precisely worded, and therefore certain in the Greek or short-run sense of the word. Thus, one of the most eminent among contemporary historians of Roman legal science and law, Professor Fritz Schulz, has pointed out that certainty (in the short-run sense) was unknown to the Roman civil law. This does not mean at all that the Romans were not in a position to make plans about the future legal consequences of their actions. Everybody knows the enormous development of the’ Roman economy, and it is hardly necessary to refer here to the imposing work of Rostovtzeff on this subject.

On the other hand, it is well known to all students of Roman private law that, as Professor Schulz says, “the individualism of Hellenistic liberalism caused the private law to be developed on a basis of freedom and individualism.” As a matter of fact, most of our contemporary Continental codes, such as the French, the German, and the Italian, were written according to the rules of the Roman law recorded in Justinian’s Corpus Juris. They have been labeled as “bourgeois” by some socialist reformers. So-called social “reforms” in European countries today can be brought about, if at all, only by modifying or canceling rules that very often go back to those of ancient Roman private law.

Thus, the Romans had a law sufficiently certain to enable citizens freely and confidently to make plans for the future, and this without being a written law at all, that is, without being a series of precisely worded rules comparable to those of a written statute. The Roman jurist was a sort of scientist: the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concerning their plants or their production. Hence, private Roman law was something to be described or to be discovered, not something to be enacted—a world of things that were there, forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will. This did not mean absence of change, but it certainly meant that nobody went to bed at night making his plans on the basis of a present rule only to get up the next morning and find that the rule had been overturned by a legislative innovation.

The Romans accepted and applied a concept of the certainty of the law that could be described as meaning that the law was never to be subjected to sudden and unpredictable changes. Moreover, the law was never to be submitted, as a rule, to the arbitrary will or to the arbitrary power of any legislative assembly or of any one person, including senators or other prominent magistrates of the state. This is the long-run concept, or, if you prefer, the Roman concept, of the certainty of the law.

“To a certain extent, [this concept] put juridical relations among citizens on a plane very similar to that on which the free market put their economic relations,” he writes. He then tackles an objection which says that because the Roman legal system was derived from the Roman constitution, all private law was indirectly statutory law subject to the whims of the majority, or the powerful, in some way or the other. Not the case, he says. When a dictator, Sulla, enacted a statute that deprived the inhabitants of certain cities of their Roman citizenship, Cicero fought and won a case that overthrew the statute. Leoni writes-

The law enacted by Sulla was a statute formally approved by the people, of the type the Romans used to call a lex rogata) that is, a statute whose approval had been requested and obtained from a popular assembly by an elected magistrate by due process of law. We are told by Cicero, in this connection, that all bills to be made into statute law used to contain, from very ancient times, a clause the meaning of which, although not completely understandable in a later age, obviously related to the possibility that the content of the bill, if it became a statute, might not be legal: “Si quid jus non esset rogarier, eius ea lege nihilum rogatum” (“if there is in this bill whose approval I am requesting of you,” said the magistrate to the legislative assembly of the Roman people, “anything that is not legal, your approval of it is to be considered as not requested”).

This seems to prove that there were statutes that could be contrary to law and that statutes like those depriving citizens of their freedom or of their citizenship were not considered as legal by Roman courts.

If Cicero is correct, we may conclude that Roman law was limited by a concept of legitimacy strikingly similar to that set forth by Dicey in regard to the English “rule of law.”

The most important thing to note is that “law” is not “made,” it has to be “discovered” by applying reason to a problem. That is the essence of natural law. It is objective in nature, and open to reason. That is what common law is all about. On the attack on common law, the process of discovery as well as personal biases rendering the “objective” subjective, and therefore no different than legislation, he does not deny the possibility. He writes-

My point is merely that courts of judicature could not easily enact arbitrary rules of their own in England, as they were never in a position to do so directly, that is to say, in the usual, sudden, widely ranging and imperious manner of legislators. Moreover, there were so many courts of justice in England and they were so jealous of one another that even the famous principle of the binding precedent was not openly recognized as valid by them until comparatively recent times. Besides, they could never decide anything that had not been previously brought before them by private persons. Finally, comparatively few people used to go before the courts to ask from them the rules deciding their cases. As a result, judges were more in the position of spectators than of actors in the law-making process, and, moreover, of spectators not allowed to see all the things that happen on the stage. Private citizens were on the stage; common law was chiefly just what they commonly thought of as being law.

[…]

The increasing importance of the legislative process in the present age has inevitably obscured, both on the European Continent and in the English-speaking countries, the fact that law is simply a complex of rules relating to the behavior of the common people. There is no reason to consider these rules of behavior much different from other rules of behavior in which interference on the part of political power has been only exceptionally, if ever, exercised.

[…]

We have become increasingly accustomed to considering law-making as a matter that concerns the legislative assemblies rather than ordinary men in the street and, besides, as something that can be done according to the personal ideas of certain individuals provided that they are in an official position to do so. The fact that the process of law-making is, or was, essentially a private affair concerning millions of people throughout dozens of generations and stretching across several centuries goes almost unnoticed today even among the educated elite.

It is said that the Romans had little taste for historical and sociological considerations. But they did have a perfectly clear view of the fact I have just mentioned. For instance, according to Cicero, Cato the Censor, the champion of the traditional Roman way of life against the foreign (that is, Greek) importation, used to say that

the reason why our political system was superior to those of all other countries was this: the political systems of other countries had been created by introducing laws and institutions according to the personal advice of particular individuals like Minos in Crete and Lycurgus in Sparta, while at Athens, where the political system had been changed several. times, there were many such persons, like Theseus, Draco, Solon, Cleisthenes, and several others. … Our state, on the contrary,is not due to the personal creation of one man, but of very many; it has not been founded during the lifetime of any particular individual, but through a series of centuries and generations. For he said that there never was in the world a man so clever as to foresee everything and that even if we could concentrate all brains into the head of one man, it would be impossible for him to provide for everything at one time without having the experience that comes from practice through a long period of history.

Leoni then makes a very interesting point. von Mises had proved that any economy that followed socialism- full socialism, with state ownership of the means of production – would not be able to function properly because capital goods weren’t priced. But this fact, he says, is just a corollary of the fact that central authorities will always lack knowledge of what goes on at the lowest levels.

Even those economists who have most brilliantly defended the free market against the interference of the authorities have usually neglected the parallel consideration that no free market is really compatible with a law-making process centralized by the authorities. This leads some of these economists to accept an idea of the certainty of the law, that is, of precisely worded rules such as those of written law, which is compatible neither with that of a free market nor, in the last analysis, with that of freedom understood as the absence of constraint exercised by other people, including the authorities, over the private life and business of each individual.

[…]

If one seeks historical confirmation of the strict connection between the free market and the free law-making process, it is sufficient to consider that the free market was at its height in the English-speaking countries when the common law was practically the only law of the land relating to private life and business. On the other hand, such phenomena as the present acts of governmental interference with the market are always connected with an increase in statutory law and with what has been called in England the “officialization” of judiciary powers, as contemporary history proves beyond doubt.

If we admit that individual freedom in business, that is, the free market, is one of the essential features of political freedom conceived of as the absence of constraint exercised by other people, including the authorities, we must also conclude that legislation in matters of private law is fundamentally incompatible with individual freedom in the above-mentioned sense.

Thus, if we want certainty in the “rule of law,” it is long-run certainty which we must aim for.

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