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Puzzles pieces Puzzles pieces 3D Puzzle. Out of stock. Same author. I do not deny that those who are accustomed to taking advantage of the process of representation, either as representatives or as members of represented groups, have something to lose by such a reduction. In fact, what we are often confronted with today is nothing less than a potential legal war of all against all , carried on by way of legislation and representation. The alternative can only be a state of affairs in which such a legal war cannot any longer take place, or at least not so widely or so dangerously as it now threatens to do.
Of course, a mere reduction in the area covered by legislation today could not completely solve the problem of the legal organization of our society for the preservation of individual freedom, any more than legislation now solves that problem by actually suppressing that freedom step by step. Usages, tacit rules, the implications of conventions, general criteria relating to the suitable solutions of particular legal problems also with reference to possible changes in the opinions of people at any given time and in the material background of those opinions—all these are yet to be discovered.
One may well say that this is an undeniably difficult, sometimes painful, and very often long process. It always was. According to the experience of our ancestors, the usual way of meeting this difficulty—as we have already pointed out—not only in Anglo-Saxon countries but everywhere in the West, was to entrust the process to specially trained persons like lawyers or judges. The very nature of the activity of such people and the extent of their personal initiative in finding legal solutions are still open questions.
It cannot be denied that lawyers and judges are men like any others and that their resources are limited; neither can it be denied that they may be subject to the temptation to substitute their own personal will for the impartial attitude of a scientist whenever the case is obscure and their own deeply rooted convictions are concerned. However, the position of lawyers and judges in the countries of the West as well as that of other honoratiores in similar societies Edition: current; Page: [ 22 ] in the past is fundamentally different from that of legislators, at least in three very important respects.
First, judges or lawyers or others in a similar position are to intervene only when they are asked to do so by the people concerned, and their decision is to be reached and become effective, at least in civil matters, only through a continuous collaboration of the parties themselves and within its limits. Second, the decision of judges is to be effective mainly in regard to the parties to the dispute, only occasionally in regard to third persons, and practically never in regard to people who have no connection with the parties concerned.
Third, such decisions on the part of judges and lawyers are very rarely to be reached without reference to the decisions of other judges and lawyers in similar cases and are therefore to be in indirect collaboration with all other parties concerned, both past and present. All this means that the authors of these decisions have no real power over other citizens beyond what those citizens themselves are prepared to give them by virtue of requesting a decision in a particular case.
It means also that this very power is further limited by the unavoidable reference of every decision to decisions issued in similar cases by other judges. No solemn titles, no pompous ceremonies, no enthusiasm on the part of applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned.
One of the paradoxes of our era is the continual retreat of traditional religious faith before the advance of science and technology, under the implied exigency of a cool and matter-of-fact attitude and dispassionate reasoning, accompanied by a no less continual retreat from the same attitude and reasoning in regard to legal and political questions. It is also paradoxical that the very economists who support the free market at the present time do not seem to care to consider whether a free market could really last within a legal system centered on legislation.
The fact is that economists are very rarely lawyers, and vice versa, and this probably explains why economic systems, on the one hand, and legal systems, on the other, are usually analyzed separately and seldom put into relation to each other. It is well known that people sometimes prefer to have any rule whatsoever rather than none at all. This may happen in several contingent cases. Something of this kind seems to have occurred during the postclassical period of the Roman law when the emperors conferred on certain jurisconsults the power to issue legal opinions jus respondendi which became ultimately binding on judges in given circumstances.
But, as I try to stress in Chapter 8 of this book, this possibility, far from being necessarily implied in the nature of lawyers. But this deviation can be avoided and is therefore not an insurmountable obstacle to the satisfactory performance of the judicial function of determining what the will of the people is. After all, checks and balances may Edition: current; Page: [ 25 ] well be applied within the sphere assigned to the exercise of the judiciary function, namely, in the highest stages of it, just as they are applied among the various functions and powers of our political society.
One final remark needs to be made. What I am dealing with here are mainly general principles. I do not offer particular solutions for particular problems. I am convinced, however, that such solutions can be found much more easily in accordance with the general principles I have proposed than by applying others. On the other hand, no abstract principle will work effectively by itself; people must always do something to make it work. This applies to the principles that I have advanced in this book no less than it does to any others. I do not seek to change the world, but merely to submit some modest ideas that should be, unless I am wrong, carefully and fairly considered before concluding, as do the advocates of inflated legislation, that things are unchangeable and, although not the best, are the inevitable response to our needs in contemporary society.
In using the same word, we do not mean the same thing. As a matter of fact, when Lord Acton, at Bridgenorth in , delivered his famous lectures on the history of freedom, the respect accorded to religious minorities by the English authorities Edition: current; Page: [ 27 ] and the English majority was still one of the big issues of the political life of the Victorian age in the United Kingdom.
With the abrogation of such discriminatory laws as the Corporation Act of and the Test Act of , and with the admission, in , of the Protestant Dissenters and of the Catholics the Papists, as they were called to the universities of Oxford and Cambridge, the so-called Free Churches had just won a battle that had lasted two centuries.
Previously these universities had been open only to students belonging to the Reformed Church of England. Lord Acton, as is known, was himself a Catholic and for this reason had been prevented, much against his will, from attending Cambridge. This happens quite frequently.
The history of political ideas evinces a series of definitions such as the one given by Lord Acton. I would not go so far as to say that it is only a word, as several representatives of the contemporary analytical school, in their self-styled philosophical revolution, might maintain. Thinkers who begin by asserting that something is simply a word and conclude that it is nothing but a word remind me of the saying that one must not throw the baby out with the bath water. Linguistic analysis has received increasing attention in certain Edition: current; Page: [ 28 ] quarters, especially after the Second World War, but it is not yet very popular.
Many people do not like it or do not bother about it. Learned men not devoted to philosophical or philological matters are more or less inclined to think of it as an idle occupation. Neither can we receive much encouragement from the example of the contemporary analytical school of philosophers. After having focused their attention on linguistic problems and made the latter the center of their research, they seem more inclined, instead of analyzing, to destroy altogether the very meaning of the words belonging to the vocabulary of politics.
Moreover, linguistic analysis is not easy. But I would suggest that it is particularly necessary in these times of semantic confusion. Should uncertainty arise about the meaning of our words, it would be sufficient, in order to eliminate the misunderstanding, simply to point to the thing we are naming or defining. Thus, two different words referring to the same thing and used respectively by us and by our listener would prove equivalent.
We could substitute one word for the other, whether we speak the same language as our listener as we do in the case of synonyms or different languages as we do in the case of translations. It was this that made it possible for early European explorers to make themselves understood by the inhabitants of other parts of the world and that still makes it possible for thousands of contemporary American tourists to spend their holidays, say, in Italy without knowing a word of Italian. In spite of this ignorance on their part they are understood perfectly for many practical purposes by Italian waiters, taxi drivers, and porters.
The common factor in conversation is the possibility of pointing to material things like food, luggage, and so on. Of course, it is not always possible to point out the material things we refer to by our words. But whenever two different words refer to material things, they prove easily interchangeable.
Natural scientists agree quite easily about the use of words designating Edition: current; Page: [ 29 ] newly discovered phenomena. Usually they choose Greek or Latin words, and their method is successful, since uncertainty can be avoided by pointing out which phenomena are designated by these words. This calls to mind the wisdom of the reply made by an old Confucian pedagogue to his heavenly disciple, a very young Chinese emperor who had been asked by his teacher the name of some animals they met while taking a walk through the countryside.
Unfortunately, much greater difficulty arises if we try to define things that are not material and if our listener does not know the meaning of the word we are using. In such a case we cannot point out to him any material object. Our way of understanding each other is completely different and it is necessary to resort to altogether different ways of discovering a common factor, if any, between our language and his.
Banal and self-evident as it appears, this fact is probably not noticed, or at least it is not emphasized sufficiently, when we consider the use of our language. We are so accustomed to our vocabularies that we forget the importance we attached to pointing out things at the beginning of our learning process. We are inclined to think of our linguistic achievements mainly in terms of definitions simply read in a book.
This explains certain metaphysical trends among those ancient Greek philosophers who treated nonmaterial things—justice, for example—as if they were similar to visible, material things. Thus, we feel that something has been lost in passing from one language to the other. As a matter of fact, nothing has been lost. It is this fact that still renders it practically impossible to translate an English or American legal book into German or Italian. Many words could not be translated into corresponding words because the latter are simply nonexistent.
Instead of a translation, it would be necessary to supply a long, cumbrous, and complicated explanation of the historical origin of many institutions, their present way of working in Anglo-Saxon countries, and the analogous working of similar institutions, if any, in Continental Europe. These words are often so firmly rooted in one definite historical environment that we cannot find corresponding words in the language of other environments. Of course, students of comparative law have attempted on several Edition: current; Page: [ 31 ] occasions to bridge the gap between the European and the Anglo-Saxon legal traditions.
Thus, reciprocal ignorance is the result of different institutions in different countries, and historical ignorance is the result of changing institutions within the same country. Unfortunately, this is not the only difficulty of being unable to point to material things in the definition of legal concepts. Words that have apparently the same sound may have completely different meanings relating to different times and places. This is often the case with nontechnical words or with words originally having a technical use, but which were introduced into everyday language rather carelessly without paying heed to their technical sense or without even recognizing it.
If it is unfortunate that strictly technical words, such as those belonging, for instance, to legal language, cannot be translated at all into corresponding words in other languages, it is even more unfortunate that nontechnical or half-technical words can be translated only too easily into other words in the same language or into cognate words of other languages that have a similar sound. In the first case a confusion is created between words that actually are not synonyms, while in the latter case people speaking a different language think that the meaning they attach to a word in their language corresponds to the different meaning you attach to an apparently similar word in yours.
Many terms belonging both to the language of economics and to the language of politics are typical in this respect. The German philosopher Hegel once said that anyone can determine the suitability of a legal institution without being a lawyer, just as Edition: current; Page: [ 32 ] anyone, without being a shoemaker, can decide whether a pair of shoes is suitable for his feet or not.
This does not seem to apply to all legal institutions. Few people actually are suspicious and inquisitive about the framework of such legal institutions as contracts, evidence, etc. But many people think that political and economic institutions are just their business. They suggest, for instance, that governments must adopt or reject this or that policy in order to redress, say, the economic situation of a country or to modify the terms of international trade or both.
These languages use terms in a definite and unambiguous way. Thus, the semantic confusion that can arise from the ambiguous use of this originally technical word is bitterly regretted by those economists who, like Professor Ludwig von Mises, hold that the increase in prices is the consequence of the increase in the quantity of money circulating in the country. This word belongs to the language of politics and of the history of political institutions. Now it belongs also to ordinary language, and this is the reason why a great deal of misunderstanding arises at present among people using the same word with completely different meanings—say, the man in the street in America and the political rulers in Russia.
I would suggest that a special reason why the meanings of half-technical words tend to be confused is that within technical languages such as that of politics the meaning of these words was originally connected with other technical words that often have not been introduced into ordinary language for the simple reason that they could not be translated easily or at all. Thus, applications that gave an unequivocal meaning to the original use of a word have been lost. We notice that words like ecclesia, polis, Landsgemeinde , and referendum are usually quoted in other languages without being translated because there are no satisfactory words for that purpose.
Lacking their original connection with technical words, half-technical or nontechnical terms often go adrift in ordinary language. Their meaning can change according to the people using them, although their sound is always the same. To make matters worse, several meanings of the same word may prove mutually incompatible in some respects, and this is a continual source not only of misunderstandings, but also of verbal disputes or worse.
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Political and economic affairs are the main victims of this semantic confusion, when, for instance, several types of behavior implied by different meanings of the same word prove to be mutually incompatible and attempts are made to grant them all a place in the same legal and political system. I do not say that this confusion, which is one of the most obvious characteristics of the history of the countries of the West at the present time, is semantic only, but it is also semantic.
Men such as Ludwig von Mises and F. Hayek have pointed out on several occasions the necessity of removing semantic confusions, not only for economists but for political scientists as well. It is a very important task for learned people to collaborate in the elimination of semantic confusion in the language of politics no less than in that of economics. I am reminded of what Leibniz once said about the way our civilization is threatened by the fact that after the invention of the printing press too many books might be written and diffused and too few would be actually read by each individual, with the probable result that the world could be plunged into a new era of barbarism.
As a matter of fact, many writers, chiefly philosophers, have contributed much to semantic confusion. Some of them have used words taken from ordinary language and given them odd meanings. In many cases they never bothered to state what they actually meant by using a word, or they gave rather arbitrary definitions that were at variance with those in the dictionaries, but that were accepted by readers and disciples. This practice has contributed, at least to some extent, to the confusion of the meanings accepted in ordinary language.
Because of the connections between ethical and political subjects, on the one hand, and between economic and ethical subjects, on the other, some philosophers contributed, consciously or not, to an increase in the huge stock of semantic confusion and to the contradictions between the meanings of words in the ordinary language of today. Moreover, this word has different meanings according to the historical environments in which it has been used in both ordinary language and the technical languages of politics and of economics.
We cannot understand, for example, the meaning of the Latin term libertas without making reference to such technical terms of the Roman language of politics as res publica or jus civitatis or to some other technical terms like manus which designated the power of the patres familias over their wives, children, slaves, land, chattels, and so on or manumissio , which designated the legal act—or rather the legal ceremony—by which a slave changed his status and became libertus. This implied sooner or later a disconnection of the word itself from several technical terms belonging to the legal or to the political language of these countries.
Semantic changes have been introduced at will by a number of different people in different places. Many new meanings have been proposed by philosophers that are at variance with the meanings already accepted in the ordinary languages of the West. Shrewd people have tried to exploit the favorable connotations of this word in order to persuade others to change their corresponding ways of behaving into new and even contrary ones.
The very word free , to take a trivial example, in its use in ordinary English, may or may not correspond to the French word libre or to the Italian libero. It has become usual, especially in modern times, to speak of freedom as one of the basic principles of good political systems.
Not all Americans are inclined to recognize this fact. The English and American political systems have been imitated to a certain extent, and are imitated still in many respects, by all the peoples of the world. European nations have contrived some very good-looking imitations of these systems, and this is also due to the fact that their history and their civilization were somewhat similar to those of the English-speaking peoples. The rules may seem to be almost the same, but they do not work in the same way.
Neither the citizens nor the officials interpret them as the English or the Americans do, the resulting practice being rather different in many respects. In other countries, including Italy, notwithstanding laws such as certain special articles e. When at last he is found guilty and condemned, he perhaps must be set free immediately since he has already spent in prison all the time of his sentence.
Of course, if he is proved not guilty, no one can restore to him the years lost in jail. One is sometimes told that in Italy the judges are not sufficiently numerous and that the organization of the trials probably is not so efficient as it could be, but public opinion is obviously not alert or active enough to denounce these defects of the judiciary system, which do not appear so clearly incompatible with the principle of political freedom as they would to public opinion in England or the United States. It must be pointed out also that this word may have different meanings and different implications at different times in the history of the same legal system, and, what is even more striking, it may have different meanings at the same time in the same system under different circumstances and for different people.
An example of the first case is provided by the history of military conscription in the Anglo-Saxon countries. Until comparatively recent times, military conscription, at least in time of peace, was considered both by the English and by the American people as incompatible with political freedom. Because of these changes, connections which were taken for granted before are now lost, and contradictions appear which are strange enough to the technicians, but which other people accept unconsciously or even willingly as natural ingredients of their political or economic system.
As Lord MacDermott points out, this is a broad provision and can be used to cover acts which are done outside the trade or employment involved and which must inevitably cause loss or hardship to interests having no part in the Edition: current; Page: [ 39 ] dispute. Another statute, the Trade Union Act of , repealed by another Trade Disputes and Trade Union Act in , but fully restored by the Trade Disputes and Trade Union Act of when the Labour Party had returned to office, gave British trade unions an enormous political power over their members and also over the whole political life of that country by authorizing the unions to spend the money of their members for purposes not directly related to trade and without even consulting the members themselves about what they actually wanted done with their money.
Since the enactment of these statutes in Great Britain there is no longer protection against everyone in this respect, and there is no doubt that this fact has introduced a striking contradiction in the system so far as freedom and its meaning are concerned.
Injunctions in American and English law are court orders that certain people shall not do certain things which would cause a loss that could not be remedied later by a damage suit. They merely apply principles of laws already on the statute books, and labor unions often use them for this purpose against employers and against rival unions.
American courts used to behave in a way similar to that of the English courts before At first sight one might think that both the American and the English courts were prejudiced against the unions. Many people said so both in the United States and in England. As a matter of fact, the courts adopted against the unions only the same principles that they still apply against all other people who conspire, for instance, to damage property. Judges could not admit that the same principles that worked to protect people from constraint by others could be disregarded when those others were union officials or union members.
Both are descriptive of the meaning attached to a word; but the former refers to a meaning that the author of the definition proposes to adopt for the word in question, whereas the latter refers to the meaning that ordinary people give to the word in common usage. Since the Second World War a new trend in linguistic philosophy has emerged. It recognizes the existence of languages whose purpose is not only descriptive or even not descriptive at all—languages that the school of the so-called Vienna Circle would have condemned as altogether wrong or useless.
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The aim of persuasive definitions is not to describe things, but to modify the traditional meaning of words with favorable connotations in order to induce people to adopt certain beliefs or certain forms of behavior. The formulation of such persuasive definitions would not be a proper task for the scholar. Stipulative definitions may appear to be, on the surface, a solution to the problem. Stipulating seems to depend entirely on us or at most also on a partner who agrees with us about what we want to define.
When the adherents of the linguistic school speak of stipulative definitions, they emphasize the arbitrariness of such formulations. This is evidenced, for instance, by the enthusiasm with which the advocates of stipulative definitions quote an authority who is not properly a philosopher—at least not an official one. This oft-quoted gentleman is Lewis Carroll, the brilliant author of Alice in Wonderland and Through the Looking-Glass , who describes the impossible and sophisticated characters met by Alice during her travels.
One of these, Humpty Dumpty, made words say what he wanted them to say and also paid them a sort of salary for their service. When they speak of stipulative definitions, the analytical philosophers have in mind chiefly those of logic or of mathematics, where everybody seems to be free to start when and where he wants provided that he defines precisely the terms he employs in his reasoning. I do not think that people would fight for triangles. Perhaps a few mathematicians would do so. But many people say that they are prepared to fight for freedom just as they are prepared to fight for a piece of land or to protect the lives of their loved ones.
This is not intended to be a panegyric on behalf of freedom. The facts referred to here can easily be verified in the historical records of many countries or observed in everyday life. This means that it is not conceived of by ordinary people simply as a word, as a nominal entity the meaning of which it is only necessary to agree on by means of a stipulation similar to those of mathematics or logic.
Of course, every definition is to some extent stipulative, since it implies a certain agreement about how a word is to be used. Even lexicographic definitions do not exclude stipulations concerning the way of describing, say, what people mean by a certain word of ordinary usage in France or in England or in both countries or all over the world.
For instance, we can make stipulations about the languages to be taken into consideration in elaborating a lexicographic definition or about the choice to be made among the meanings of the same word when dictionaries give several. But in all such cases we Edition: current; Page: [ 46 ] never forget that there are some uses which are revealed by common dictionaries and which cannot be changed by stipulation without disregarding the meanings of the words as other people actually use them.
Stipulations are simply instrumental devices to convey to others something we want them to know. In other words, they are a means of communicating or transmitting information, but the information itself cannot be stipulated. This common factor may be an intuition in mathematics or a sensorial experience in physics, but it is never itself a subject of stipulation in its turn. Whenever a stipulation seems to be based on another stipulation, the problem of finding a common factor that permits the stipulation to function is simply postponed; it cannot be eliminated.
It is doubtful whether information knowable only by the author of the definition would be of any interest whatever to other people who have no share in the content of that information. Being completely personal, it would be of little concern to others. Indeed, it would be impossible to reveal it to other people. These experiences are different at different times and in different places and are also connected with abstract concepts and technical words, but they cannot merely be identified with abstract concepts or reduced to a mere word. Aristotle made a penetrating remark when he said at the beginning of his treatise on politics that people are divided into two broad categories, those who were born to rule and those who were born to obey rulers.
All this is not merely a play on words. A free market is rooted in a situation in which those engaged in market transactions have some power to constrain the enemies of a free market. Economists do not deny, but also do not take into direct consideration, the fact that every economic act, as a rule, is also a legal act the consequences of which may be enforced by the authorities Edition: current; Page: [ 50 ] if, for instance, the parties to the transaction do not behave as they are expected to behave on the basis of their agreement.
As Professor Lionel Robbins pointed out in his The Nature and Significance of Economics , studies of the connection between economics and the law are still rather unusual on the part of the economists, and the connection itself, although indisputable, is rather neglected. In this way economists recognize that the utilities that they usually take into consideration are only those compatible with the existing law of most countries. Thus, the connection between economics and the law is implied, but it is rarely regarded by economists as a special object worthy of their research.
They consider, for instance, the exchange of goods, but not the behavioral exchange that makes possible an exchange of goods, regulated and occasionally enforced for that purpose by the law of all countries. People who ignore this fact ought to take seriously a couplet once sung in a cabaret in Montmartre:. To be sure, economic theory has not ignored the fact that it is the government that gives people the practical power to avoid constraint on the part of other people on the market. We must add that it is human in so far as some preference on the part of men is always implied when we use that term in ordinary language.
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An explorer may be starving in the desert where he wanted to go alone without being constrained by anybody else. Several thinkers, ancient as well as modern, have tried to connect the fact that some people are not free from hunger or from disease with the fact that other people in the same society are not free from the constraint of their fellow men.
Of course, the connection is obvious when someone is in bondage to other people who treat him badly and let him die, for instance, through starvation. But the connection is not at all obvious when people are not in bondage to others. History is so full of examples of violence, robbery, invasions of land, and so on, that many thinkers have felt justified in saying that the origin of private property is simply violence and that it is therefore to be regarded as irremediably illicit at present as well as in primitive times.
The Stoics, for example, imagined that all the land on earth was originally common to all men. They called this legendary condition communis possessio originaria. Certain Fathers of the Christian Church, particularly in the Latin countries, echoed this assumption. Thus, Saint Ambrose, the famous archbishop of Milan, could write in the fifth century C. He quotes the Stoics, who maintained, as he says, that everything in the earth and in the seas was created for the common use of all human beings.
A disciple of Saint Ambrose, called the Ambrosiaster, says that God gave everything to men in common and that this applies to the sun and to the rain as well as to the land. Modern socialists, including Marx, have simply produced a revised version of this same idea. For instance, Marx distinguishes various stages in the history of mankind: a first stage, in which the production relations had been those of cooperation, and a second stage, in which some people acquired for the first time control of the factors of production, thereby placing a minority in the position of being fed by the majority.
Modern economists explain the difference by pointing out that there is no scarcity of moonlight, while there is a scarcity of land. This confusion is connected, in its turn, with another. When a grocer or a doctor or a lawyer waits for customers or clients, each of them may feel dependent on the latter for his living. This is quite true. But if no customer or client makes his appearance, it would be an abuse of language to assert that the customers or clients who do not appear constrain the grocer or the doctor or the lawyer to die by starvation.
In fact, no one committed any constraint against him for the simple reason that no one put in an appearance. To put the matter in the simplest possible terms, the customers or clients did not exist at all. What Shylock wanted was only to constrain Antonio to respect his agreement after he had signed it. Notwithstanding these obvious considerations, people are often inclined to judge Shylock in the same way as they would judge a murderer and to condemn usurers as if they were robbers or pirates, although neither Shylock nor any ordinary usurer can properly be accused of constraining anyone to go to him to ask for money at a usurious rate.
This is not, in my opinion, in accordance with the proper usage of ordinary language in all the countries with which I am familiar. Unprejudiced historians, such as Professor T. Ashton, have demonstrated that the general situation of the poor classes of the English population after the Napoleonic wars was due to causes that had nothing to do with the behavior of the entrepreneurs of the new industrial era in that country and that its origin is traceable far back into the ancient history of England. What is more, economists have often demonstrated, both by adducing cogent arguments of a theoretical nature and by examining statistical data, that good wages depend on the ratio between the amount of capital invested and the number of workers.
But this is not the main point of our argument. I must point out too that a similar semantic confusion underlies many of the demands made upon the peoples of the West including the United States and the attitudes adopted toward them by the ruling groups in certain former colonies like India or Egypt. Thus, a confusion of words causes a confusion of feelings, and both react reciprocally on each other to confound matters even more.
I am not so naive as Leibniz, who supposed that many political or economic questions could be settled, not by disputes clamoribus , but by a sort of reckoning calculemus through which it would be possible for all people concerned to agree at least in principle about the issues at stake. But I do maintain that semantic clarification is likely to be more useful than is commonly believed, if only people were put in a condition to benefit from it. The complete story of this change cannot be written yet, since the process is still going on.
Moreover, it is a story to a certain extent complicated, fragmentary, tedious, and, above all, hidden from people who read only newspapers, magazines, or fiction and who have no special taste for legal matters or for such technicalities as, say, the delegation of judicative authority and legislative powers. I agree with Professor Hayek that we are confronted in this respect with a sort of silent revolution. Continental European scholars, notwithstanding their wisdom, their learning, and their admiration for the British political system, from the times of Montesquieu and Voltaire have not been able to understand the proper meaning of the British constitution.
Montesquieu is probably the most famous of those who are open to this criticism, particularly as far as his celebrated interpretation of the division of powers in England is concerned, in spite of the fact that his interpretation many people would say his misinterpretation had, in its turn, an enormous influence in the English-speaking countries themselves. Eminent English scholars, in their turn, suffered a similar criticism because of their interpretations of European Continental constitutions. If we confine our observation to the Europe of the twentieth century, we might well say that in most European countries the rule of law is now nearly as well established as in England and that private individuals at any rate who do not meddle in politics have little to fear as long as they keep the law, either from the government or from anyone else.
On the other hand, some Continental scholars— e. Welcker, Robert von Mohl, and Otto von Gierke—supposed I would say, wrongly that they were describing and recommending to their fellow citizens a type of state very similar to that of England. This ideal and that of the Rechtsstaat before its corruption did indeed have much in common. Americans may wonder whether or not Dicey considered the American system in the same class as the Continental systems of Europe.
Americans derive or appear to derive their individual rights from the general principles laid down in their Constitution and in the first ten amendments. According to Professor Hayek, the generality , the equality , and the certainty of the law, as well as the fact that administrative discretion in coercive action, i.
Apparently, the theories of Professor Hayek and of Dicey coincide except for some minor details. Equality , in its turn, is an idea embodied in the Dicean description of the second characteristic of the rule of Edition: current; Page: [ 63 ] law, that is, that every man, whatever his rank or condition, is subject to the ordinary law of the realm.
Dicey, according to Sir Carleton and Professor Hayek, was wrong in believing that the French and generally the Continental droit administratif , at least in its mature stage, was a sort of arbitrary law because it was not administered by ordinary tribunals. According to Dicey, only ordinary courts, in England as well as in France, could really protect citizens by applying the ordinary law of the land.
Dicey and Hayek apparently differ only slightly in their respective interpretations of equality as a characteristic of the rule of law. Both maintain that independent courts are essential in order to grant to the citizens equality before the law. A minor difference between the two interpretations of the functions of the courts seems to be that while Dicey does not admit the existence of two different judiciary orders, one to settle disputes between ordinary citizens only and one to settle disputes between ordinary citizens, on the one hand, and state officials, on the other, Hayek thinks that the existence of two different judiciary orders is not objectionable in itself, provided that both orders are actually independent of the executive.
Of course, independent administrative tribunals are better than the simple bestowal of judiciary power on the executive in administrative matters, such as occurs in England today and, to a certain extent, in the United States as well. State officials, as representatives of the public administration, are regarded as people having eminentia jura pre-eminent rights over other citizens. Thus, officials are entitled, for instance, to enforce their orders without any prior control whatever on the part of a judge over the legitimacy of these orders, whereas such a control would be prescribed if a private citizen demanded anything of another private citizen.
It is true that Continental theorists admit as well that individuals have a right to personal liberty that limits the eminentia jura or, as they also say, the supremacy of the administration. But the principle of the supremacy of the administration is something that today qualifies the administrative law of all countries in Continental Europe and, to some extent, of all countries in the world. It is exactly this principle that administrative tribunals take into account in judging controversies between private citizens and officials, whereas ordinary judges would consider all the private parties involved in a case as exactly on the same level.
This fact, which has in itself nothing to do with the extent to which the administrative tribunals are independent of the executive or of state officials, is at the base of the existence of administrative tribunals as separate courts of judicature. Now, if we admit, with Dicey, that the only law to be taken into consideration in judging controversies between citizens whether they are state officials or not is one that is in accordance with the rule of law as Dicey conceives of it, his conclusion that a system of administrative courts whether they are independent of the government or not is to be avoided and that only ordinary courts are to be accepted is perfectly consistent.
With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.
About the course
The reports abound with cases in which officials have been brought before the courts and made, in their personal capacity, liable to punishment or to the payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person.
Dicey cannot be justly criticized for his condemnation of administrative tribunals on the basis of a principle he has so clearly enunciated, viz. We can form as many categories of people as we want in order to apply the same laws to them. Of course, we can, in the same way, have three or four or thousands of laws of the land—one for landlords, one for tenants, one for employers, one for employees, etc.
We can also imagine that the same courts are entitled to apply all these laws of the land equally to all those included in the categories concerned. We also have in my country other laws that constrain people to give away a part of their land for a compensation fixed by the government itself and which the proprietors think in many cases to be ridiculously low when compared with the market price of the land.
Other people—for instance, owners of buildings, of business firms, or of securities—are still left free to do what they want with their property. Theorists could probably elaborate a series of principles to explain all this and speak, for instance, of a jus subjectionis of the landlords or of jura eminentia or supremacy on the part of the tenants and the government officials who fix the amount to be paid to the expropriated landlords.
But things remain as they are: people are not equally treated by the law of the land considered as a whole in the sense intended by Dicey in his famous book. Indeed, it is not easy to establish what renders one law general in comparison with another. Dicey explained with his usual lucidity what he meant by this:. If it be allowable to apply the formulae of logic to questions of law, the difference in this matter between the constitution of Belgium and the English constitution may be described by the statement that in Belgium individual rights are deductions drawn from the principles of the constitution, whilst in England the so-called principles of the constitution are inductions or generalizations based upon particular Edition: current; Page: [ 70 ] decisions pronounced by the courts as to the rights of given individuals.
According to Professor Hayek, 13 the certainty of the law is probably the most important requirement for the economic activities of society and 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.
Apparently, this fact is connected with the absence of written—and therefore, in a way, of certain —rules in the English traditional common law, including constitutional law. If certainty were connected only with written rules, neither the common law nor that part of it that can be called constitutional law would be certain at all. This impatience with unwritten law is an outgrowth of the increasing number of statutes in contemporary legal and political systems and of the increasing weight that has been given to statutory law as compared with case law that is, with the unwritten law in England as well as in other countries of the British Commonwealth and in the United States of America.
In a similar way, Professor Hayek believes that no serious inconvenience can arise from the fact that rules are issued by parliaments or by some delegated authority, provided only that those rules be general, clearly stated, and published in advance. This is surely a classic interpretation of the certainty of the law. One can also add that it is probably the most famous one, for it has received many celebrated formulations since the days of ancient Greek civilization, as some quotations from the Politics and the Rhetoric of Aristotle could easily prove.
When that philosopher praises the government of laws, he very probably has in mind those general rules, known in advance to all citizens, which were written in his day on the walls of public buildings or on special pieces of wood or stone, like the kurbeis that the Athenians used for that purpose.
The ideal of a written law, generally conceived and knowable by every citizen of the small and glorious towns scattered all along the coasts of the Mediterranean Sea and inhabited by people of Greek descent, is one of the most precious gifts that the fathers of Western civilization have bequeathed to their posterity. Aristotle knew well the harm that an arbitrary, contingent, and unpredictable rule whether a decree approved by the mob in the Athenian agora or the capricious Edition: current; Page: [ 73 ] order of a tyrant in Sicily could cause to ordinary people in his day.
This ideal of certainty has been implanted and reinforced in the European Continent through a long series of events. This ideal was not repudiated, but was even emphasized, in the seventeenth and eighteenth centuries in Continental Europe, when the absolutistic governments, as the late Professor Ehrlich has pointed out in his brilliant essay on legal reasoning Juristische Logik , wanted to make sure that their judges did not alter the meaning of their rules.
Everybody knows what happened in the nineteenth century in Continental Europe. All the European countries adopted written codes and written constitutions, accepting the idea that precisely worded formulae could protect people from the encroachments of all possible kinds of tyrants. Governments as well as courts accepted this interpretation of the idea of the certainty of the law as the precision of a written formula laid down by legislatures.
This was not the only reason why Continental Europe adopted codes and constitutions, but it was at least one of the main reasons. 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. We shall return to this question a little later. The Greek or Continental notion of the certainty of the law actually corresponds to the ideal of individual liberty formulated by the Greek authors who speak of government by the laws.
Edition: current; Page: [ 74 ] There is no doubt that government by the laws is preferable to government by decrees of tyrants or of the mob. From this point of view, we cannot help admitting that general rules, precisely worded as they can be when written laws are adopted , are an improvement over the sudden orders and unpredictable decrees of tyrants. 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. This is particularly true in our time. In my country the legislative process now means about two thousand statutes every year, and each of them may consist of several articles. Sometimes we find dozens or even hundreds of articles in the same statute. Quite frequently one statute conflicts with another. We have a general rule in my country that when two particular rules are mutually incompatible because of their contradictory content, the more recent rule abrogates the old one.
DPhil in Law
But, according to our system, nobody can tell whether a rule may be only one year or one month or one day old when it will be abrogated by a new rule. 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. T he Greek conception of the certainty of the law was that of a written law.
Although we are not directly concerned here with problems of historical research, it may be interesting to recall that the Greeks, especially in earlier times, also had a conception of customary law and generally of unwritten laws. Aristotle himself speaks of the latter. These were not to be confused with the more recent concept of the law as a complex of written formulae in the technical sense that the word nomos assumed in the fifth and fourth centuries before Christ.