The Roots of Freedom and the Rule of Law

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The Roots of Freedom and the Rule of Law

• Dr. Karen Horn
• Institut der deutschen Wirtschaft Köln

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Questions

• Where do freedom and the rule of law come from?
• How did these concepts evolve and how did they
  get to be instituted and protected?
• What is freedom, what is the rule of law,
  exactly? What do these concepts encompass? How do
  they relate?
• Preliminary Does cultural evolution necessarily
  bring about freedom and the rule of law?

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Friedrich August von Hayek

• Friedrich August von Hayek (1899-1992) was an
  eminent Austrian economist and social philosopher
  known particularly for his defence of classical
  liberalism and free markets against socialist and
  other collectivist thought. He taught at the LSE,
  in Chicago, in Freiburg and in Salzburg. He
  shared the 1974 Nobel Prize in economics with
  Gunnar Myrdal.

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Cultural evolution and spontaneous order

• a process of winnowing and sifting, directed by
  the differential advantages gained by groups from
  practices adopted for some unknown and perhaps
  purely accidental reasons (Hayek, The Political
  Order of A Free People, Vol 3. of LLL, Chicago
  University Press, 1979, p.155).
• the results of human action but not of human
  design (Hayek, in New Studies in Philosophy,
  Politics, Economics, and the History of Ideas,
  London, Routledge, 1978, p. 96-105).

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Cultural evolution and spontaneous order

• The extended order resulted not from human
  design or intention but spontaneously it arose
  from unintentionally conforming to certain
  traditional and largely moral practices, many of
  which men tend to dislike, whose significance
  they usually fail to understand, whose validity
  they cannot prove, and which have nonetheless
  fairly rapidly spread by means of an evolutionary
  selectionthe comparative increase of population
  and wealthof those groups that happened to
  follow them. (Hayek, The Fatal Conceit, in his
  Collected Works, Vol. 1, Chicago University Press
  1988, p. 6)

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The long march towards freedom and the rule of law

• the invention of democracy and the preparation
  for the rule of law in Ancient Greece,
• the development of a true rule of law and a whole
  body of written law by the Romans, together with
  a more elaborated notion of individualism and the
  creation of private property,
• the rediscovery of Ancient Greece and Rome in the
  course of the so-called Papal Revolution,
• the idea of self-ownership and the importance of
  property, as developed by Locke,
• the idea of a social contract, invented by Hobbes
  and taken up later by Rousseau and Rawls,
• the limitation of government through the
  separation of power, as developed by Montesquieu,
• the idea of human perfectibility, as elaborated
  by Humboldt,
• the idea of modern liberty, as developed by
  Constant,
• the insights into the workings of self-regulating
  systems, especially markets, as developed by
  Hume, Smith, and Hayek,
• the emergence of liberal constitutions

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The invention of democracy and the preparation
for the rule of law in Ancient Greece
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Friedrich Schiller

• Friedrich Schiller (1759 1805) is not only one
  of Germanys best-known poets and playwrights and
  a contemporary and close friend of Goethe.
• He was also a historian and a philosopher, an
  outstanding intellectual, a foremost classical
  liberal, a renegade and a rebel.

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Lycurgus and Solon

• The oligarchic government, associated with
  Lycurgus (ca. 800 BC) in Sparta, reduces man to a
  beast, denying individual human creativity.
• Solons (d. 559 BC) republican government in
  Athens however is premised on a conception of man
  raised to the level of participation in the
  divine.

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The invention of democracy On the new
constitution of Athens

• Solon, also called the law-giver, undertook the
  great work of giving the republic a new
  constitution The first three classes could
  assume public offices those from the last class
  were excluded from public office, but had one
  vote in the national assembly as all the others,
  and, for that reason alone, had a large share in
  the government. All major issues were brought
  before the national assembly, called the
  Ecclesia, and also decided by this assembly the
  election of magistrates, assignments to offices,
  important affairs in law, financial affairs, war,
  and peace In this way, the constitution of
  Athens was transformed into a complete democracy
  in the strict sense, the people was sovereign,
  and it ruled not merely through representatives,
  but in its own person and by itself. (Schiller)

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Preparation for the Rule of Law

• In Ancient Greece, laws were finally put in
  writing and so they became a document that
  anybody could look at, read, check, verify, and
  refer to.
• This is also where the concepts and institutions
  of equality before the law and generality first
  came into being.

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The Rule of Law

• The core of rule of law is an autonomous legal
  order, be it a higher, transcendental idea of law
  or a constitution. It limits government
  arbitrariness and power abuse.
• Second, the rule of law means equality before
  law.
• Third, rule of law implies procedural and formal
  justice.

• We are free because we live under civil laws.
  (Montesquieu)

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The Roman contribution

• The development of a real rule of law
• with a limitation of the governments ability to
  change the law,
• a separation of powers,
• and a whole body of written legal rules that were
  more found than created,
• together with a more elaborated notion of
  individualism
• and the institutional creation of private
  property.

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Cicero on natural law according to the Stoics

• True law is right reason in agreement with
  nature it is of universal application,
  unchanging and everlasting it summons to duty by
  its commands, and averts from wrongdoing by its
  prohibitions It is a sin to try to alter this
  law, nor is it allowable to attempt to repeal any
  part of it, and it is impossible to abolish it
  entirely. We cannot be freed from its obligations
  by senate or people, and we need not look outside
  ourselves for an expounder or interpreter of it.
  And there will not be different laws at Rome and
  at Athens, or different laws now and in the
  future, but one eternal and unchangeable law will
  be valid for all nations and all times, and there
  will be one master and ruler, that is, God, over
  us all, for he is the author of this law, its
  promulgator, and its enforcing judge. Whoever is
  disobedient is fleeing from himself and denying
  his human nature (Cicero, De Republica, 3.22).

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Corpus Juris Civilis

• A vast and differentiated body of law that had
  grown over many centuries, a body of law that
  most western countries still trace their civil
  law back to, with all the notions and legal
  concepts that we still use today, such as the law
  of persons, with figures such as inheritance,
  adoption, and tutelage the law of things, with
  property low, ownership law, usufruct,
  co-ownership, and rent the law of obligations,
  with mortgages, mandates, purchase, and sale etc.

Justinian (482 565) was Roman Emperor from 527
until his death. Under his reign, the Corpus
Juris Civilis saw the light.
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The Papal Revolution

• In 1075, Pope St. Gregory VII declared papal
  supremacy over the church,
• and also declared the church's independence from
  secular control.
• He asserted the pope's powers to depose emperors.
  
• Thanks to his efforts, the Roman law was
  rediscovered and reinstituted,
• the University was created,
• reason was rehabilitated,
• and dynamism sprang up.

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The idea of a social contract
Thomas Hobbes
John Locke
Jean-Jacques Rousseau
John Rawls
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Leviathan or the Hobbesian nightmare

• Thomas Hobbes (1588 - 1679) was an English
  philosopher, whose famous 1651 book Leviathan
  established the foundation for most of Western
  political philosophy.
• In the state of nature, each person would have a
  right, or license, to everything in the world.
  This inevitably leads to conflict, a war of all
  against all, and thus lives that are solitary,
  poor, nasty, brutish, and short.
• To escape this state of war, all individuals in
  the state of nature engage in a social contract
  according to which they all cede their natural
  rights for the sake of protection.

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John Locke

• John Locke (1632-1704) was an English philosophr
  of the natural rights tradition. Locke is
  considered the first of the British Empiricists,
  but is equally important to social contract
  theory. His ideas had enormous influence on the
  development of epistemology and political
  philosophy, and he is widely regarded as one of
  the most influential Enlightenment thinkers and
  contributors to liberal theory. Locke is also
  known for his writings on toleration in which he
  came up with the right to freedom of conscience
  and religion.

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Locke on the separation of powers

• The Legislative Power is that which has a right
  to direct how the Force of the Commonwealth shall
  be imploy'd for preserving the Community and the
  Members of it. But because those Laws which are
  constantly to be Executed, and whose force is
  always to continue, may be made in a little time
  therefore there is no need, that the Legislative
  should be always in being, not having always
  business to do. And because it may be too great a
  temptation to humane frailty apt to grasp at
  Power, for the same Persons who have the Power of
  making Laws, to have also in their hands the
  power to execute them, whereby they may exempt
  themselves from Obedience to the Laws they make,
  and suit the Law, both in its making and
  execution, to their own private advantage, and
  thereby come to have a distinct interest from the
  rest of the Community, contrary to the end of
  Society and Government Therefore in well order'd
  Commonwealths, where the good of the whole is so
  considered, as it ought, the Legislative Power is
  put into the hands of divers Persons who duly
  Assembled, have by themselves, or jointly with
  others, a Power to make Laws, which when they
  have done, being separated again, they are
  themselves subject to the Laws, they have made
  which is a new and near tie upon them, to take
  care, that they make them for the publick good.
  (Second Treatise, 143)

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Locke on property and the law

• every man has a property in his own person.
  (Second Treatise)
• 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 the" is no
  freedom.  For liberty is to be free  from
  restraint and violence from others which cannot 
  be where there is no law and is not, as we are
  told, a  liberty for every man to do what he
  lists. (For who could be free when every other
  man's humour might domineer over him?) But a
  liberty to dispose, and  order as he lists, his
  person, actions, possessions, and his whole
  property, within the allowance of those laws 
  under which he is, and therein not to he the
  subject of the arbitrary will of another, but
  freely follow his  own. (Second Treatise)

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Montesquieu

• Charles-Louis de Secondat, baron de La Brède et
  de Montesquieu (1689-1755) was an important
  French political thinker in the Enlightenment. He
  is famous for his articulation of the theory of
  separation of powers in his book De l'Esprit des
  Lois (The Spirit of the Laws).
• Montesquieu says that government should be set
  up so that no man need be afraid of another. He
  describes a division of political power among ann
  executive, a legislature, and a judiciary.
• His core sentence is There would be an end of
  every thing were the same man, or the same body,
  whether of the nobles or of the people to
  exercise those three powers that of enacting
  laws, that of executing the public resolutions,
  and that of judging the crimes or differences of
  individuals.

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Wilhelm von Humboldt

• Friedrich Wilhelm Christian Karl Ferdinand
  Freiherr von Humboldt (1767-1835) was a Prussian
  government official, minister, diplomat,
  philosopher, reformer, founder of the Humboldt
  University in Berlin, a close friend of Goethe
  and especially of Schiller, the elder brother of
  Alexander von Humboldt, an explorer, geographer
  and natural scientist.
• He published On the Limits of State Action in
  1819, one of the boldest defences of the
  liberties during the Enlightenment. It
  anticipated Mills essay On Liberty by which von
  Humboldt's ideas became known in the
  English-speaking world. He describes the
  necessary conditions without which the state must
  not be allowed to limit the action of
  individuals.

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Humboldt on liberty

• Reason cannot desire for man any other condition
  than that in which each individual not only
  enjoys the most absolute freedom of developing
  himself by his own energies, in his perfect
  individuality, but in which external nature
  itself is left unfashioned by any human agency,
  but only receives the impress given to it by each
  individual by himself and of his own free will,
  according to the measure of his wants and
  instincts, and restricted only by the limits of
  his powers and his rights.
• the ultimate task of our existence is to give
  the fullest possible content to the concept of
  humanity in our own person ... through the
  impact of actions in our own lives.

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Benjamin Constant

• Henri Benjamin Constant de Rebecque (1767 1830)
  was a prolific political philosopher, novelist,
  and politician and a pretty tortured soul.
• Liberty is the most important human value it
  consists both of active political participation
  and inviolable individual freedom.
• All legal rules must be universal, general and
  non-arbitrary courts must be independent and
  bureaucracy has to be neutral.
• All power needs to be limited neither a
  sovereign ruler nor the people as a whole are
  entitled to violate the rights of the individual.

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Insights into the workings of self-regulating
systems, especially markets
Adam Smith
Friedrich A. von Hayek
David Hume
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Adam Smith

• In almost every other race of animals each
  individual, when it is grown up to maturity, is
  entirely independent, and in its natural state
  has occasion for the assistance of no other
  living creature. But man has almost constant
  occasion for the help of his brethren, and it is
  in vain for him to expect it from their
  benevolence only. He will be more likely to
  prevail if he can interest their self-love in his
  favour, and show them that it is for their own
  advantage to do for him what he requires of them.
  Whoever offers to another a bargain of any kind,
  proposes to do this. Give me that which I want,
  and you shall have this which you want, is the
  meaning of every such offer and it is in this
  manner that we obtain from one another the far
  greater part of those good offices which we stand
  in need of. It is not from the benevolence of the
  butcher, the brewer, or the baker, that we expect
  our dinner, but from their regard to their own
  interest. We address ourselves, not to their
  humanity but to their self-love, and never talk
  to them of our own necessities but of their
  advantages. Nobody but a beggar chuses to depend
  chiefly upon the benevolence of his
  fellow-citizens. (Wealth of Nations)

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Hayek

• the economic problem of society is thus not
  merely a problem of how to allocate given
  resources if given is taken to mean given to a
  single mind which deliberately solves the problem
  set by these data. It is rather a problem of how
  to secure the best use of resources known to any
  of the members of society, for ends whose
  relative importance only these individuals know.
  Or, to put it briefly, it is a problem of the
  utilization of knowledge which is not given to
  anyone in its totality.
• The price system is just one of those formations
  which man has learned to use after he had
  stumbled on it without understanding it. Through
  it not only a division of labour but also a
  coordinated utilization of resources based on an
  equally divided knowledge has become possible.
• Nobody has yet succeeded in designing an
  alternative system in which certain features of
  this can be preserved such as particularly the
  extent to which the individual can choose his
  pursuits and consequently freely use his own
  knowledge and skill.

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The emergence of liberal constitutions

• individual liberty,
• personal dignity,
• the safeguard of private property,
• equality before the law,
• freedom of the press,
• freedom of assembly,
• active and passive political freedom

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Freedom and the rule of law
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