Decline of the Rule of Law
There can be little doubt about the source from which the Englishmen of the late Tudor and early Stuart period derived their new political ideal for which their sons fought in the 17th century; it was the rediscovery of the political philosophy of ancient Greece and Rome which, as Thomas Hobbes complained, inspired the new enthusiasm for liberty. Yet if we ask precisely what were the features in the teaching of the ancients which had that great appeal, the answer of modern scholarship is none too clear. We need not take seriously the fashionable allegation that personal freedom did not exist in ancient Athens: whatever may have been true of the degenerate democracy against which Plato reacted, it certainly was not true of those Athenians whom, at the moment of supreme danger during the Sicilian expedition, their general reminded above all that they were fighting for a country in which they had "unfettered discretion to live as they pleased." But wherein did this freedom of the "freest of the free countries," as Nicias called it on the same occasion, appear to consist – both to the Greeks themselves and to the Elizabethans whose imagination it fired?
I suggest the answer lies in part in a Greek word which the Elizabethans borrowed from the Greeks but which has since gone into disuse; its history, both in ancient Greece and later, provides a curious lesson. Isonomia, which appears in 1598 in John Florio's World of Wordes as an Italian word meaning "equalitie of lawes to all manner of persons," two years later, in its Englished form "isonomy," is already freely used by Philemon Holland in his translation of Livy to render the description of a state of equal laws for all and of responsibility of the magistrates. It continued to be used frequently throughout the 17th century, and "equality before the law," "government of law," and "rule of law," all seem to be later renderings of the concept earlier described by the Greek term.
Equal Laws for All
The history of the word in ancient Greek is itself instructive. It was a very old term which had preceded demokratia as the name of a political ideal. To Herodotus it was "the most beautiful of all names" for a political order. The demand for equal laws for all which it expressed was originally aimed against tyranny, but later came to he accepted as a general principle from which the demand for democracy was derived. After democracy had been achieved, the term continued to be used as a justification and 'later, as one scholar suggests, perhaps as a disguise of the true character of democracy: because democratic government soon proceeded to destroy that very equality before the law from which it derived its justification. The Greeks fully understood that the two concepts, although related, did not mean the same thing. Thucydides speaks without hesitation of an "isonomic oligarchy," and later we find isonomia used by Plato quite deliberately in contrast to, rather than in vindication of, democracy.
In the light of this development the celebrated passages in Aristotle's Politics in which he discusses the different kinds of democracy, even though he no longer uses the term isonomia, read like a defense of this old ideal. Readers will probably remember how he stresses that "it is more proper that law should govern than anyone of the citizens," that the persons holding supreme power "should be appointed only guardians and servants of the law," and particularly how he condemns the kind of government under which "the people govern and not the law." Such a government, according to him, cannot be regarded as a free state: "for when the government is not in the laws, then there is no free state, for the law ought to be supreme over all things"; he even contends that "any such establishment which centers all power in the votes of the people can not, properly speaking, be called a democracy, for their decrees can not be general in their extent." Together with the equally famous passage in the Rhetorics, in which he argues that "it is of great moment that well-drawn laws should themselves define all the points they can and leave as few as may be for the decision of the judges," this provides a fairly coherent doctrine of government by law.
How much all this meant to the Athenians is shown by the account given by Demosthenes of a law introduced by an Athenian under which "it should not be lawful to propose a law affecting any one individual, unless the same applied to all Athenians," because he was of the opinion that, "as every citizen has an equal share in civil rights, so everybody should have an equal share in the laws." Although, like Aristotle, Demosthenes no longer uses the term isonomia, the statement is little more than a paraphrase of the old concept.
A characteristic dispute between Hobbes and Harrington, from which, I believe, the modern use of the "government by laws and not by men" derives, indicates how alive these views of the ancient philosophers were to the political thinkers of the 17th century. Hobbes had described it as "just another error of Aristotle's politics that in a well-ordered commonwealth not men should govern but the law." Harrington countered that the "art whereby a civil society is instituted and preserved upon the foundation of common right or interest" is "to follow Aristotle and Livy … the empire of laws, not of men."
To the 17th-century Englishmen, it seems, the Latin authors, particularly Livy, Cicero, and Tacitus, became increasingly the more important sources of political philosophy. But, even if they did not go to Holland's translation of Livy where they would have found the word, it was still the Greek ideal of isonomia which they met at all the crucial points. Cicero's Omnes legum servi sumus ut liberi esse possumus [we are all servants of the laws in order that we may be free] (repeated later, almost word for word, by Voltaire, Montesquieu, and Kant) is perhaps the most concise expression of the ideal of freedom under the law. During the classical period of the Roman Law, it was once more understood that there was no real conflict between freedom and the law, their generality, certainty, and the restrictions they placed on the discretion of the authority, which was the essential condition of freedom. This condition lasted until the strict law (ius strictum) was progressively abandoned in the interest of a new social policy. As a distinguished student of Roman Law, F. Pringsheim, has described this process 'which started under the Emperor Constantine:
The absolute empire proclaimed together with the principle of equity the authority of the imperial will unfettered by the barrier of law. Justinian with his learned professors brought this process to its conclusion.
Struggle for Economic Freedom
When it comes to show what the Englishmen of the seventeenth and eighteenth centuries made of the classical tradition they had rediscovered, any brief account must inevitably consist mainly of quotations. But many of the most telling and instructive expressions of the central doctrine as it developed are less well known than they deserve. Nor is it generally remembered today that the decisive struggle between King and Parliament which led to the recognition and elaboration of the Rule of Law was fought mainly over the kind of economic issues which are again the center of controversy today. To the 19th-century historians the measures of James I and Charles I which produced the conflict seemed antiquated abuses without topical interest. Today, some of these disputes have an extraordinarily familiar ring. (In 1628 Charles I refrained from nationalizing coal only when it was pointed out to him that it might cause a rebellion!)
Throughout the period it was the demand for equal laws for all citizens by which Parliament opposed the King's efforts to regulate economic life. Men then seem to have understood better than they do today that the control of production always means the creation of privilege, of giving permission to Peter to do what Paul is not allowed to do. The first great statement of the principle of the Rule of Law, of certain and equal laws for all and of the limitation of administrative discretion, is contained in the Petition of Grievances of 1610; it was caused by new regulations for building in London and the prohibition of the making of starch from wheat which the King had made. On this occasion the House of Commons pleaded:
Among many other points of happiness and freedom which Your Majesty's subjects of this kingdom have enjoyed under your royal progenitors, Kings and Queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law, which giveth both 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 root hath grown the indisputable right of the people of this kingdom, not to be subject to any punishment that shall extend their lives, lands, bodies, or goods, other than such as are ordained by the common law of this land, or the statutes made by their common consent in Parliament.
The further development of what contemporary Socialist lawyers have contemptuously dismissed as the Whig doctrine of the Rule of Law was closely connected with the fight against government-conferred monopoly and particularly with the discussion around the Statute of Monopolies of 1624. It was mainly in this connection that that great source of Whig doctrine, Sir Edward Coke, developed his interpretation of Magna Carta which led him to declare (in his second Institutes):
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 … and consequently against this great charter.
We have already noticed the characteristic positions taken on the critical point of executive discretion by Hobbes and Harrington respectively. We are not interested here in tracing the further steps in the development of the doctrine and shall pass over even its classical exposition by John Locke, except for the rarely noticed modern justification which he gives it. Its aim is to him what contemporary writers have called the "taming of power":
Laws made and rules set … to limit the power and moderate the dominion of every part and member of society.
The form in which the doctrine became the common property of an Englishmen was determined, however, as is probably always true in such cases, more by the historians who presented the achievements of the revolution to later generations than by the writings of the political theorists. Thus, if we want to know what the tradition in question meant to the Englishman of the late eighteenth or early 19th century, we can hardly do better than turn to David Hume's History of England which indeed is to a large extent an interpretation of political progress from "government of will" to "government of law." There is particularly one passage, referring to the abolition of the Star Chamber in 1641, which shows what he regarded as the chief significance of the constitutional developments of the 17th century:
No government, at that time, appeared in the world, nor is perhaps found in the records of any history, which subsisted without a mixture of some arbitrary authority, committed to some magistrate; and it might reasonably, beforehand, appear doubtful whether human society could ever arrive at that state of perfection, as to support itself with no other control, than the general and rigid maxims of law and equity. But the Parliament justly thought that the King was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty. And in the event it has been found that, though some inconveniencies arise from the maxim of adhering strictly to law, yet ,the advantages so much overbalance them, as should render the English forever grateful to the memory of their ancestors who, after repeated contests, at last established that noble principle.
Later, of course, this Whig doctrine found its classic expression in many familiar passages of Edmund Burke. But if we want a more precise statement of its content we have to turn to some of his lesser contemporaries. A characteristic statement which has been attributed to Sir Philip Francis (but which probably occurs in the Junius letters) is the following:
The government of England is a government of law. We betray ourselves, we contradict the spirit of our laws, and we shake the whole system of English jurisprudence, whenever we entrust a discretionary power over the life, liberty, or fortune of the subject to any man, or set of men, whatsoever, on the presumption that it will not be abused.
The fullest account of the rationale of the whole doctrine which I know occurs, however, in the chapter "Of the Administration of Justice" in Archdeacon Paley's Principles of Moral and Political Philosophy:
The first maxim of a free state is, that the laws be made by one set of men, and administered by another; in other words, that the legislative and the judicial character be kept separate. When these offices are united in the same person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends: whilst they are kept separate, general laws are made by one body of men, without forseeing whom they will affect; and, when made, must be applied by the other, let them affect whom they will….
Parliament knows not the individuals upon whom its acts will operate: it has no case or parties before it: no private designs to serve: consequently, its resolutions will be suggested by the consideration of universal effects and tendencies, which always produce impartial and commonly advantageous regulations.
Here, I suggest, we have nearly all the elements which together produce the complex doctrine which the 19th century took for granted under the name of the Rule of Law. The main point is that, in the use of its coercive powers, the discretion of the authorities should be so strictly bound by laws laid down beforehand that the individual can foresee with fair certainty how these powers will be used in particular instances; and that the laws themselves are truly general and create no privileges for class or person because they are made in view of their long-run effects and therefore in necessary ignorance of who will be the particular individuals who will be benefited or harmed by them. That the law should be an instrument to be used by the individuals for their ends and not an instrument used upon the people by the legislators is the ultimate meaning of the Rule of Law.
Since this Rule of Law is a rule for the legislator, a rule about what the law ought to be, it can, of course, never be a rule of the positive law of any land. The legislator can never effectively limit his own powers. The rule is rather a meta-legal principle which can operate only through its action on public opinion. So long as it is generally believed in, it will keep legislation within the bounds of the Rule of Law. Once it ceases to be accepted or understood by public opinion, soon the law itself will be in conflict with the Rule of Law.
As the establishment of the Rule of Law in England was the outcome of the slow growth of public opinion, the result was neither systematic nor consistent. The theorizing about it was mainly left to foreigners who, in explaining English institutions to their compatriots, had to try to make explicit and to give the appearance of order to a set of seemingly irrational traditions which yet mysteriously secured to the Englishman a degree of liberty scarcely known on the Continent.
These efforts to embody into a definite program for reform what had been the result of historical growth at the same time could not but show that the English development had remained curiously incomplete. That English law should never have drawn such obvious conclusions from the general principle as formally to recognize the principle nulla poena sine lege, or to give to the citizen an effective remedy against wrongs done him by the state (as distinguished from its individual agents),or that English constitutional development should not have led to the provision of any built-in safeguards against the infringement of the Rule of Law by routine legislation, seemed curious anomalies to the Continental lawyers who wished to imitate the British model.
The demand for the establishment of the Rule of Law in the Continental countries also became to some extent the conscious aim of a political movement, which had never been the case in England. Indeed, for a time in France and for a somewhat longer period in Germany, this demand was the very heart of the liberal program. In France it reached its height during the July monarchy when Louis Philippe himself proclaimed it as a basic principle of his reign: "Liberty consists only in the rule of laws." But neither the reign of Napoleon III nor the Third Republic provided a favorable atmosphere for the further growth of this tradition. And although France made some important contributions in adapting the English principle to a very different governmental structure, it was in Germany that the theoretical development was carried furthest. In the end it was the German conception of the Rechtsstaat which not only guided the liberal movements on the Continent but became characteristic of the European governmental systems as they existed until 1914.
This continental development is very instructive because there the efforts to establish the Rule of Law met from the very beginning conditions which arose in England only much later – the existence of a highly developed central administrative apparatus. This had grown up unfettered by the restrictions which the Rule of Law places on the discretionary use of coercion. Since these countries were not willing to dispense with its machinery, it was clear that the main problem was how to subject the administrative power to judicial control. It is a matter of comparative detail that in fact separate administrative courts were created to enforce the elaborate system evolved to restrain the administrative agencies. The main point is that the relations between these agencies and the citizen were systematically subjected to legal rules ultimately to be applied by a court of law. The German lawyers indeed, and with justice, regarded the creation of administrative courts as the crowning achievement of their efforts toward the Rechtsstaat. There could hardly have been a more grotesque and more harmful misjudgment of the Continental position by an eminent lawyer than A. V. Dicey's well-known contention that the existence of a distinct administrative law was in conflict with the Rule of Law.
Limits to Coercion
The real flaw of the Continental system, which English observers sensed but did not understand, lay elsewhere. The great misfortune was that the completion of the Continental development turned on a point which to the general public inevitably appeared merely a minor legal technicality. To guide all administrative coercion by rigid rules of law was a task which could have been solved only after long experience. If the existing administrative agencies were to continue their functions, it was evidently necessary to allow them for a time certain limited spheres within which they could employ their coercive powers according to their discretion. With respect to this field the administrative courts were therefore given power to decide, not whether the action taken by an administrative agency was such as was prescribed by the law, but merely whether it had acted within the limits of its discretion. This provision proved to be the loophole through which, in Germany and France, the modern administrative state could grow up and progressively undermine the principle of the Rechtsstaat.
It cannot be maintained that this was an inevitable development. If the Rule of Law had been strictly observed, this might well have caused what David Hume had called "some inconveniences," and might even substantially have delayed some desirable developments. Although the authorities must undoubtedly be given some discretion for such decisions as to destroy an owner's cattle in order to stop the spreading of a contagious disease, to tear down houses to prevent the spreading of tire, or to enforce safety regulations for buildings, this need not be a discretion exempt from judicial review. The judge may want expert opinion to decide whether the particular measures were necessary or reasonable. There ought to be the further safeguard that the owners affected by such decision are entitled to full compensation for the sacrifice they are required to make in the interest of the community.
The important point is that the decision is derived from a general rule and not from particular preferences which the policy of the government follows at the moment. The machinery of government, so far as it uses coercion, still serves general and timeless purposes, not particular ends. It makes no distinction between particular people. The discretion conferred is a limited discretion in the sense that the agent is to carry out the sense of a general rule. That this rule cannot be made wholly explicit or precise is the result of human imperfection. That it is in principle, however, still a matter of applying a general rule is shown by the fact that an independent and impartial judge, who in no way represents the policy of the government of the day will be able to decide whether the action was or was not in accordance with the law.
No Permanent Achievement
The suspicion with which Dicey and other English and American lawyers viewed the Continental position was thus not unjustified, even though they had misunderstood the causes of the state of affairs which existed there. It was not the existence of an administrative law and of administrative courts which was in conflict with the Rule of Law, but the fact that the principle underlying these institutions had not been carried through to its conclusion. Even at the time when, in the later part of the last century, the ideal of the Rechtsstaat had gained its greatest influence, the more deliberate efforts made on the Continent had not really succeeded in putting it into actual practice as fully as had been the case in England. There still remained there, as an American observer (A. B. Lowell) then described it, much of the kind of power which "most Anglo-Saxons feel … is in its nature arbitrary land ought not to be extended further than is absolutely necessary." And before the principle of the Rechtsstaat was completely realized and the remnants of the police state finally driven out, that old form of government began to reassert itself under the new name of Welfare State.
At the beginning of our century, the establishment of the Rule of Law appeared to most people one of the permanent achievements of Western civilization. Yet the process by which this tradition has been slowly undermined and eventually destroyed had even then been underway for nearly a generation. And today it is doubtful whether there is anywhere in Europe a man who can still boast that he need merely keep within the law to be wholly independent, in earning his livelihood, from the discretionary powers of arbitrary authority.
The attack on the principles of the Rule of Law was part of the general movement away from liberalism which began about 1870. It came almost entirely from the intellectual leaders of the socialist movement. They directed their criticism against practically everyone of the principles which together make up the Rule of Law. But initially it was aimed mainly against the ideal of equality before the law. The socialists understood that if the state was to correct the unequal results which in a free society different gifts and different luck would bring to different people, these had to be treated unequally. As one of the most eminent legal theorists of Continental socialism, Anton Menger, explained in his Civil Law and the Propertyless Classes (1890):
By treating perfectly equally all citizens, without regard to their personal qualities and economic positions, and admitting unlimited competition between them, it was brought about that the production of goods was increased without limit, but also the poor and weak had only a small share in that increased output. The new economic and social legislation attempts therefore to protect the weak against the strong and to secure for them a moderate share in the good things of life. We know today that there is no greater injustice than to treat as equal what is in fact unequal.
A few years later, Anatole France was to give wide circulation to the similar ideas of his French socialist friends in the much quoted gibe about "the majestic equality of the laws, which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, to steal bread." Little did the countless well-meaning persons who have since repeated this phrase realize that they were giving currency to one of the cleverest attacks on the fundamental principles of liberal society.
The systematic campaign which during the last sixty years has been conducted against all the constituent parts of the tradition of the Rule of Law mostly took the form of alleging that the particular principle in question had never really been in force, that it was impossible or impracticable to achieve it, that it had no definite meaning, and, in the end, that it was not even desirable. It may well be true, of course, that none of these ideals can ever be completely realized. But, if it is generally held that the law ought to be certain, that legislation and jurisdiction ought to be separate functions, that the exercise of discretion in the use of coercive powers should be strictly limited and always subject to judicial control, etc., these ideals will be achieved to a high degree. Once they are represented as illusions and people cease to strive for their realization, their practical influence is bound to vanish rapidly. And this is precisely what has happened.
The attacks against those features of the Rule of Law were directly determined by the recognition that to observe them would prevent an effective control of economic life by the state. The economic planning which was to be the socialist means to economic justice would be impossible unless the state was able to direct people and their possessions to whatever task the exigencies of the moment seemed to require. This, of course, is the very opposite of the Rule of Law.
Concept of Justice Abandoned
At the same time, another and perhaps even more fundamental process helped to speed up that development. Jurisprudence abandoned all concern with those metalegal criteria by which the justice of a given law can alone be determined. For legal positivism the concrete will of the majority on a particular issue became the only criterion of justice applicable in a democracy. On this basis it became impossible even to argue about – or to persuade anybody of – the justice or injustice of a law. To the lawyer who regards himself as a mere technician intent upon implementing the popular will, there can be no problem beyond what is in fact the law. To him the question whether a law conforms to general principles of justice is simply meaningless. The concept of the Rechtsstaat, which originally had implied certain requirements about the character of the laws, thus came to mean no more than that everything the government did must be authorized by a law – even if only in the sense that the law said that the government could do as it pleased.
Years before Hitler came to power German legal scholars had pointed out that this complete emptying of the concept of the Rechtsstaat had reached a point where what remained no longer formed an obstacle to the creation of a totalitarian regime. Today it is widely recognized in Germany that this is exactly where that development led.
But if there is now a healthy reaction under way in German legal thinking, the state of British discussion on this crucial problem seems to be very much where it was in pre-Hitler Germany. The Rule of Law is generally represented as either meaningless or requiring no more than legality of all government action. According to Sir Ivor Jennings, the Rule of Law in its original sense, "is a rule of action for Whigs and may be ignored by others." In its modern sense, he believes, it "is either common to all nations or does not exist." In Professor W. A. Robson's opinion it is possible to "distinguish 'policy' from 'law' only in theory" and "it is a misuse of language to say that an issue is 'nonjusticiable' merely because the adjudicating authority is free to determine the matter by the light of an unfettered discretion; and equally incorrect to say that an issue is 'justiciable' when there happens to be a clear rule of law available to be applied to it." Professor W. Friedmann informs us that in Britain "the Rule of Law is whatever Parliament, as the supreme lawgiver, makes it" and that therefore, "the incompatibility of planning with the Rule of Law is a myth sustainable only by prejudice or ignorance." Yet another member of the same group even went so far as to assert that the Rule of Law would still be in operation if the majority voted a dictator, say Hitler, into power: "the majority might be unwise, and it might be wicked, but the Rule of Law would prevail. For in a democracy right is what the majority make it to be."