The Anglo-American Conception of the Rule of Law 3030263606, 9783030263607

Table of contents :
Acknowledgements......Page 7
Praise for The Anglo-American Conception of the Rule of Law......Page 9
Contents......Page 10
Introduction......Page 11
The Main Theses......Page 15
Order of Presentation......Page 18
The Progression of the Discussion......Page 19
References......Page 26
Spontaneous Order: The Simple Version......Page 28
The Entrenched High-Ground Opposition......Page 33
Prior Agreement as Custom......Page 37
Custom as Spontaneous Order......Page 38
Alternatives to Establishment Metaphysics and Epistemology......Page 39
New Philosophical Foundations......Page 41
Spontaneous Order: Philosophical Version......Page 43
Philosophical Positivism (Logical Positivism, Logical Empiricism, Vienna Circle) and Legal Positivism......Page 46
Philosophical Positivism and Analytic Philosophy......Page 50
Norms......Page 52
Common Misunderstandings of SO (Spontaneous Order)......Page 53
Summary......Page 58
References......Page 66
Introduction......Page 68
Ockham (1285–1349)......Page 73
Protestant Reformation......Page 74
Thomas Hobbes (1588–1679)......Page 75
John Locke (1632–1704)......Page 77
Scottish Enlightenment......Page 78
David Hume (1711–1776)......Page 81
Edmund Burke (1729–1797)......Page 89
J. S. Mill (1806–1873)......Page 90
German/Austrian Expatriates......Page 92
Friedrich Hayek (1899–1992)......Page 93
Michael Oakeshott (1901–1990)......Page 94
References......Page 100
Introduction......Page 103
The Continental Legal Tradition......Page 104
Time Immemorial......Page 113
Romans vs. Germanic Tribes......Page 115
Common Law......Page 117
Magna Carta......Page 118
Fundamental Tension(s)......Page 120
Edward Coke (1552–1634)......Page 122
Thomas Hobbes......Page 124
Matthew Hale......Page 125
Hume......Page 126
Edmund Burke (1729–1797)......Page 127
Jeremy Bentham and John Austin......Page 128
F. W. Maitland......Page 131
Why is the History Important?......Page 132
References......Page 141
Introduction......Page 145
The Law of the Constitution......Page 148
Dicey on the ‘Rule of Law’......Page 150
The Crux of the Matter......Page 153
Dicey’s Critics......Page 155
Bruno Leoni......Page 158
Conclusion......Page 159
References......Page 165
Introduction......Page 167
History of Law......Page 168
Outline......Page 169
Ancient World......Page 170
Early Modern World (Post-renaissance)......Page 172
Nineteenth Century......Page 173
Positivism (Philosophical Positivism, Logical Positivism, Logical Empiricism, Vienna Circle and Legal Positivism)......Page 175
Kelsen......Page 178
H. L. A. Hart......Page 185
Raz......Page 190
Positivism Morphs into Analytic Philosophy......Page 192
Relation of Law to Morality......Page 197
Lon Fuller—The Restoration of the Rule of Law......Page 198
References......Page 211
Introduction......Page 215
Continental Tradition......Page 216
Critique of Scientism in the Social Sciences (Economics and Law)......Page 219
Dworkin......Page 223
Unger and Critical Legal Studies......Page 228
Hayek on the Rule of Law (Law, Legislation, and Liberty)......Page 232
Status of Hayek’s Analysis of the ‘Rule of Law’......Page 235
Critics Miss the Point (Again)......Page 236
References......Page 249
Human Predicament......Page 251
Philosophy......Page 255
Social, Political,and Economic Thought......Page 256
Philosophical Jurisprudence......Page 260
Law......Page 263
‘The Rule of Law’ (1983)......Page 267
Threats to the Rule of Law......Page 271
Summary......Page 272
Conclusion......Page 275
References......Page 288
Appendix: Timeline......Page 291
Index......Page 293

Citation preview

PALGRAVE STUDIES IN CLASSICAL LIBERALISM SERIES EDITORS: DAVID HARDWICK · LESLIE MARSH

The Anglo-American Conception of the Rule of Law Nadia E. Nedzel · Nicholas Capaldi

Palgrave Studies in Classical Liberalism Series Editors David Hardwick Vancouver, BC, Canada Leslie Marsh Department of Pathology and Laboratory Medicine, Faculty of Medicine University of British Columbia Vancouver, BC, Canada

This series offers a forum to writers concerned that the central presuppositions of the liberal tradition have been severely corroded, neglected, or misappropriated by overly rationalistic and constructivist approaches. The hardest-won achievement of the liberal tradition has been the wrestling of epistemic independence from overwhelming concentrations of power, monopolies and capricious zealotries. The very precondition of knowledge is the exploitation of the epistemic virtues accorded by society’s situated and distributed manifold of spontaneous orders, the DNA of the modern civil condition. With the confluence of interest in situated and distributed liberalism emanating from the Scottish tradition, Austrian and behavioral economics, non-Cartesian philosophy and moral psychology, the editors are soliciting proposals that speak to this multidisciplinary constituency. Sole or joint authorship submissions are welcome as are edited collections, broadly theoretical or topical in nature. More information about this series at http://www.palgrave.com/gp/series/15722

Nadia E. Nedzel · Nicholas Capaldi

The Anglo-American Conception of the Rule of Law

Nadia E. Nedzel Southern University Law Center Baton Rouge, LA, USA

Nicholas Capaldi College of Business Loyola University New Orleans New Orleans, LA, USA

Palgrave Studies in Classical Liberalism ISBN 978-3-030-26360-7 ISBN 978-3-030-26361-4  (eBook) https://doi.org/10.1007/978-3-030-26361-4 © The Editor(s) (if applicable) and The Author(s) 2019 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For Diana, Meredith, Chantal, Michael, Anna, Sophie, Julia, Alex, and Marcel

Acknowledgements

We wish to thank all of the following organizations and individuals who helped to make possible the completion of this book. Professor Nadia Nedzel specifically wants to thank the Southern University Law Center for providing a one-year sabbatical. The Institute for Economic Analysis in London hosted her as a visiting scholar in the fall of 2018. She offers special thanks to its director Jamie Whyte. The History of Political Economy Center at Duke University hosted her during the spring of 2019. While there, Bruce Caldwell and Kevin Hoover provided invaluable assistance and scholarly wisdom. As always, she is perennially grateful to Judge Carl E. Stewart of the Fifth Circuit for his inspiration and example. Professors James Viator and David Gruning of Loyola University New Orleans Law School were not only her teachers but also continue to serve as scholarly mentors. The Federalist Society provided several opportunities to present early versions of the manuscript. Professor Nicholas Capaldi wishes to thank Loyola University New Orleans for providing a sabbatical. Both Professors Nedzel and Capaldi extend a warm thank you to Liberty Fund for allowing us to direct several colloquia on the rule of law. We wish to thank the fellows and the innumerable scholars with whom we have interacted at such colloquia. We wish to acknowledge the special help we received from the librarians at the Hoover Institution at Stanford and the London School of Economics who gave us access to the archives and letters of Hayek and Oakeshott. vii

viii  

ACKNOWLEDGEMENTS

Finally, special thanks go to Eric Mack, Timothy Fuller, Jeffrey Ludwig, Alexei Marcoux, and Alberto Mingardi for reading and critiquing the manuscript.

Praise for The Anglo-American Conception of the Rule of Law

“In their new book, Nadia E. Nedzel and Nicholas Capaldi offer a real tour de force of the history of the English legal tradition of the ‘rule of law’, which has been under attack since 19th century Positivism made inroads into jurisprudence. However, Nedzel and Capaldi trace the beginning of the attacks on Rule of Law to the 17th century, and link it with the Baconian Project and the later Enlightenment Project, which was bound to undermine “civil association” and, consequently, individual freedom. They begin their discussion with Ockham, Bacon, Coke, Hobbes, and others before concluding with Hayek and Oakeshott—the last great proponents of the English legal tradition. This is by far the most scholarly, comprehensive, insightful, and provocative discussion of the rule of law to date. This book is a hallmark of profound scholarship and sound philosophical analysis.” —Zbigniew Janowski, Lecturer, Towson University

ix

Contents

1 Why the ‘Rule of Law’ 1 2 Spontaneous Order 19 3 The British Intellectual Inheritance 59 4 The English Legal Inheritance 95 5 A. V. Dicey 137 6 The Vanishing of the ‘Rule of Law’ 159 7 Rediscovery of the ‘Rule of Law’ in Hayek 207 8 Oakeshott 243 Appendix: Timeline 283 Index 285

xi

CHAPTER 1

Why the ‘Rule of Law’

Introduction The ‘rule of law’1 arose in England2 both because of its individualistic cultural heritage and because of the non-rationalist character of its intellectual heritage, most especially in the common law. An understanding of and appreciation for this ‘rule of law’ has been limited to legal theorists like Hayek and Oakeshott3 (and before them Dicey, Leoni, and Fuller) because they opposed the rationalism and ‘scientism’ that has been the basic intellectual orthodoxy since the nineteenth century. This opposition enabled them to resist the idea that reason or science can identify a substantive common end for society in the service of which all individuals must be directed and that law is the instrument that directs this service. The mainstream of contemporary social scientific and legal thought has little room for the traditional understanding of the rule of law. Hayek and Oakeshott find such a place and articulate a morally significant picture of the rule of law precisely because they reject the rigidity of the rationalist, scientistic, positivist perspective. Their non-rationalist, inductive understanding of human life and human society underwrites this ‘rule of law’ perspective according to which the role of law is to define the rules that enable individuals, who have their own ends and commitments, to live in peace and voluntary cooperation with their fellows.

© The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4_1

1

2  N. E. NEDZEL AND N. CAPALDI

Our purpose is to explain the meaning and significance of that ‘rule of law.’ The meaning has been obscured because much of twentiethcentury jurisprudence and the philosophy of law has lost its way. It did so because it was misguided by a powerful intellectual movement. The significance of the ‘rule of law’ is that it was thought to have promoted and protected human freedom. That significance has been challenged by writers who have a different conception of freedom or who prioritize other values over individual freedom. We shall begin by identifying the larger intellectual movement and then identify its use within jurisprudence. In the context of the larger intellectual world, we can label that movement as the Enlightenment Project,4 namely, that there can be social experts armed with a social technology for addressing social issues. The Enlightenment Project presupposes ‘scientism,’ namely, the view that science is the whole truth about everything and that there can be a social science modeled along the lines of physical science. This view originated in France in the eighteenth century and was called ‘positivism’ by the French sociologist Comte in the nineteenth century.5 In the twentieth century, this movement was programmatically developed in Vienna in the 1920s and 1930s before being transplanted to the UK and to the United States. Legal theorist Hans Kelsen was initially identified with this movement, and he became one of the transplants. ‘Positivism’ has generated confusion, in part because every scholar or every movement defines it differently.6 ‘Positivism’ is a version of ‘scientism,’ and when developed programmatically becomes the Enlightenment Project. Although it is possible to be committed to some version of scientism without any ulterior agenda, the most prominent legal theorists of the twentieth and twenty-first centuries (Kelsen, Hart, Raz, Rawls, and Dworkin) have been uniformly in favor of different versions of social technology.7 When we, as the authors, use the term ‘positivism’ we have something quite specific in mind, something that has a clear historical pedigree.8 In the eighteenth century, there was a philosophical movement primarily among the French philosophes9 called the Enlightenment Project.10 Inspired by the success of Newtonian physical science in explaining the world and the subsequent technological control it engendered, the philosophes initiated the idea of a social science, the aim of which was to explain, predict, and control the social world. In short, they believed in the existence of a beneficial if not utopian social technology. Legal

1  WHY THE ‘RULE OF LAW’ 

3

thought primarily in the United States in the late nineteenth and early twentieth centuries had already found advocates who wanted to apply science to the law. Rather than thinking that law has to be understood in its own terms, various aspects of social science have been applied to legal analysis. They go by different names such as sociological jurisprudence, formalism, anti-formalism, realism, legal positivism,11 analytic jurisprudence, critical legal studies, even law and economics. What holds all of these together is the view that some version or understanding of social science can discredit all previous jurisprudence and provide an alternative version that makes law a better instrument to achieve some favored political agenda. According to the Stanford Encyclopedia of Philosophy12: Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (17901859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings. [italics added]

Legal positivism so understood is inconsequential to the point of being reduced to triviality. Even defenders of natural law can agree with its definition of law and then add that the laws are unjust. So, everyone is a legal positivist. That is not helpful.

4  N. E. NEDZEL AND N. CAPALDI

None of the important questions in jurisprudence have been adequately answered. Many of these questions have merely been obfuscated by positivist semantics. Worse still, some of the questions such as the meaning of the rule of law have been abandoned or misconstrued. More importantly, the real story of the genesis and controversial motivation behind legal positivism has not been told. We think that there is a story, there is an agenda, and there is no place for the ‘rule of law’ in that agenda. When we speak of ‘legal positivism,’ we are here following Hayek’s understanding, an understanding that was informed by intellectual developments in Germany in the late nineteenth and early twentieth centuries. What we mean is the program of giving a ‘scientific’ account of the law or even a specific legal system, an account that is intended to challenge the previous normative framework that informs that law and to replace it with an instrumental conception of law that serves a different normative framework. All talk about separating law from morality obfuscates the substitution of ‘scientific’ politics as both the foundation of law and a replacement for morality; hence, the subordination of law to some political vision.13 As heirs to the Enlightenment Project, positivism has a normative agenda: morality itself (a la Comte) is the product of custom, superstition, and naïve theology. Morality will be replaced by scientifically rooted legislation.14 This concern might strike some as odd given the insistence by positivist-inspired legal philosophers that law should be understood independently of normative concerns, but in those countries where law has been codified, the hierarchy of norms is now internal to the positive law itself. In so doing, legal positivism has encoded into legal theory its own morality, and that morality incorporates the values of representative democracy and socialism. Thus, the insistence that law and morality be separated turns out to be either illusory or a sleight of hand because law, in any scientistic-positivistic account, should serve a particular political agenda. Normative concerns are merely postponed or assigned a different locus. Inevitably, politics is prioritized over law. Positivist-inspired legal theorists are not focused on individual liberty but on the role of the state in maintaining or enhancing equality. The analysis of the meaning of the rule of law is a reflection of a hidden normative debate. It should come as no surprise that positivist democratic socialism seeks to eviscerate traditional centers of moral authority (churches, family, etc.) of all legitimacy and to absorb all the functions of welfare (e.g., charity, philanthropy, medical care, care for aged, child care, education, etc.) into the government.

1  WHY THE ‘RULE OF LAW’ 

5

‘Scientistic’ thinking supports a mind-set that encourages us to think that institutions such as ‘law’ have some sort of objective meaning so that we can speak of law as a genus of which specific national legal systems are mere species all of whom share some specific features. As a consequence, there is a tendency to talk about the rule of law as if it were something universally present in all the species. The rule of law then comes to mean something innocuously formal like legality. What is missed is that the ‘rule of law’ has a special meaning in English-derived legal systems, a meaning that is lacking in other systems, most especially in Continental legal systems and their derivatives. Unfortunately, the ‘scientistic’ approach tends to downgrade the intellectual significance of history in favor of more timeless preoccupations. Finally, there is a utopian philosophical conceit that scientism will lead to objective results on which there can be unanimous rational agreement such that universal global standards and perhaps world peace will be achievable through conceptual clarification.

The Main Theses a. The five writers who have done the most to clarify the ‘rule of law’ are Dicey, Leoni, Fuller, Hayek, and Oakeshott. b. All five of these writers locate and explicate the meaning of the concept primarily within the Anglo-American legal inheritance. c. There are non-English Continental writers who have also articulated this concept but the political and legal entities to which they belonged did not embrace it; instead those states embraced what is called ‘rule thru law’15 (mere ‘legality’). d. The difference between the Anglo-American legal inheritance and the Continental legal tradition reflects both a different intellectual starting point and a difference in their histories; Continental law (sometimes known as the ‘civilian’ tradition) reflects ‘rule thru law.’ The ‘rule of law’ protects individual freedom; the ‘rule thru law’ is based upon and promotes community. e. Positivism is one form of the commitment to scientism. Scientism is the position that science (ultimately understood in terms of physical science) is the ultimate truth about everything; that science exhibits a method(s) of authentication that achieves universal agreement. Concomitantly, parliamentary democracy ideally mimics or is supposed to mimic science by engaging in debate until

6  N. E. NEDZEL AND N. CAPALDI

everyone agrees. Norms should inevitably be the product of democratic decision-making. There is, in short, a social democratic bias built into positivism. On the contrary, one of the distinctive features of the specifically Anglo-American ‘rule of law’ legal inheritance is the assumption that the function of a legal system is not to achieve universal agreement but to manage conflict. f. Individual liberty is an important component or presupposition of the ‘rule of law.’ Individual liberty is threatened by the belief that there can be a principled and effective managerial state in which law becomes the administrative arm of politics. The possibility of such a managerial state presupposes the existence of scientifically ascertainable and meaningful universal truths about human beings. The social sciences are supposed to be the source of such truths. The belief that the social sciences are really scientific in the relevant sense is based upon a larger understanding or philosophy of science. If that conception or philosophy of science is mistaken, then the hope for the reality of such social sciences is misplaced. That is why it is important for Hayek and Oakeshott as well as Fuller to challenge the current dominant notion of what constitutes science. If the philosophy of science is wrong, then the idea of social science is misguided, and if the latter is the case then the idea of a managerial state is misguided. This necessitates a different understanding of law and the meaning of the ‘rule of law’ within it. Dicey, Hayek, Leoni, Fuller, and Oakeshott provide such an understanding through a deeper historical16 understanding of the Anglo-American legal inheritance. g. There are Anglo-American writers who reject or seek to replace the ‘rule of law’ and embrace ‘rule thru law’ (Hart, Raz, Rawls, Dworkin, Allison, and Loughlin); the intellectual dominance within law of these writers accounts in part for the neglect of Dicey, Leoni, Fuller, Hayek, and Oakeshott. Fuller, Hayek, and Oakeshott are writers all of whom directly and consciously oppose ‘scientism.’ For that reason alone, this trio of writers is either ignored or dismissed in much of the jurisprudential literature. h.  The five writers who defend the ‘rule of law’ either against Continental writers or Anglo-American critics did so because they were concerned both with the erosion of the ‘rule of law’ and what they perceived as a threat to individual freedom.

1  WHY THE ‘RULE OF LAW’ 

7

i. All five defenders of the ‘rule of law’ (Dicey, Leoni, Hayek, Fuller, and Oakeshott) attribute the erosion to the ever-increasing power of regulatory government bureaucracies. j. One of those writers, Fuller, further attributes it to a fundamental jurisprudential misperception of the nature of law itself. k. Three of the writers, Fuller, Hayek, and Oakeshott, believe that the ever-increasing power of government agencies rests upon a political vision (Enlightenment Project social technology or managerialism) that in turn came to rest upon a faulty philosophy (namely scientism/positivism and its later manifestations). l.  That philosophy, interestingly, was a product of Continental thinkers (French philosophes, Comte, Marx) and presently dominates even the Anglo-American intellectual world and accounts for why ‘rule thru law’ has become popular.17 m. Hayek and Oakeshott understood their philosophical role, specifically in their philosophical jurisprudence, as partly therapeutic: to alert their audience that a specific scientistic misconception of philosophy is ultimately unintelligible and dangerous. n. Hayek and Oakeshott expended great effort in exposing and critiquing what they saw as a misguided intellectual framework; in its place, they will provide an alternative intellectual starting point (what Hayek called ‘spontaneous order’). o. In order to get the whole argument, it is first necessary to explain ‘spontaneous order’ and respond to misunderstandings (usually scientistic) of it; Hayek and Oakeshott use some version of ‘spontaneous order’ to explain the unique history of Anglo-American law as well as some pivotal events. What Oakeshott highlights is an important transition in the early modern period, one that influenced every institution including the law. That transition was a movement away from community and toward the rise of the autonomous individual. This transition was documented both by those who approved of it (including Hobbes, Locke, Hegel, Maine, Dicey, Hayek, and Oakeshott) and those who opposed it (e.g., Rousseau, Tonnies, etc.).18 p. The ‘rule of law’ arose in England (or Britain) both because of its individualist cultural heritage (Macfarlane) and because of the non-rationalist (not anti-rationalist) character of its intellectual heritage, the strong non-rationalist character of English (British)

8  N. E. NEDZEL AND N. CAPALDI

culture/thought as exemplified by figures like Ockham, Hume, and Burke, and most remarkably in the common law. q. Legal scholars and students, especially in the United States, are largely unaware of both the philosophical explications of ‘spontaneous order’ by Hayek and Oakeshott and the legal writings of these two authors; there are two reasons for this: Hayek is usually thought of only as an economist and Oakeshott as a political philosopher who had been largely ignored and then dismissed by English critics most of whom were favorably inclined to ‘rule thru law’; the education of US legal scholars begins with self-selected students who want to politicize the law in order to change the world prior to understanding it, largely consists of political theory as taught by ideologues of the left, and who think Hobbes was an authoritarian and who do not understand Hegel let alone read him. To top it all off, the reigning intellectual giants of their world are Hart, Rawls, Raz, and Dworkin—all of whom had no use for the ‘rule of law.’

Order of Presentation Chapter 2 explains ‘spontaneous order’ in the works of Hayek and Oakeshott, explains that it is meant to replace misguided scientism, and responds to some typical misunderstandings. Part of the chapter is a form of therapy in which we show how the misunderstanding is largely the assumption that scientism is correct. The connection among scientism, the Enlightenment-Baconian project (collective goal of all political entities is economic growth and domination), and the ‘rule thru law’ will be explored. Throughout the book, we emphasize the remarkable commonalities between Hayek and Oakeshott and their occasional differences. Chapter 3 presents a history of the British or English mind-set from Ockham to Oakeshott with special emphasis on the importance of nominalism, the individual, and the abhorrence of abstractions. Chapter 4 presents a brief overview of the English legal inheritance from the Anglo-Saxons to the twentieth century. This overview is meant to show how the common law is an example of the English mind-set, how the law evolved in relation to judicial decisions and legislation, how the ‘rule of law’ evolved within that framework,

1  WHY THE ‘RULE OF LAW’ 

9

and how Anglo-American jurisprudence reflects a peculiar kind of thinking (we call explication) that is opposed to the kind theorizing (we call exploration) that is a reflection of scientism. Chapter 5 presents a summary of the first serious explication of the concept of the ‘rule of law’ in A. V. Dicey followed by a defense of Dicey by Leoni and Hayek, followed by the identification of the perspective of Dicey’s critics. Chapter 6 is an interlude designed ultimately to explain the eclipse of the ‘rule of law’ by putting it into a larger history of law in general and a specific history of the philosophy of law as it was transformed in theory in the twentieth century by Kelsen and Hart. Fuller emerges as the main voice against Kelsen and Hart. Chapter 7 focuses on Hayek’s retrieval of the ‘rule of law’ from Dicey. The first part focuses on Hayek’s critique of Kelsen’s positivism (Cairo lecture of 1955 and The Constitution of Liberty). The second part focuses on the transformation of positivism (analytic jurisprudence) in Rawls and Dworkin. The third part focuses on Hayek’s largely ignored critique of transformed positivism and his deeper defense of the ‘rule of law’ (via Oakeshott) in Law, Legislation, and Liberty. Chapter 8 is all about Oakeshott, presenting and situating his magisterial explanation and defense of the ‘rule of law’ within his larger philosophy, his understanding of the history of English law, his understanding of politics, and his warning about the Baconian Project19 and its promotion of what we call ‘rule thru law.’ The Progression of the Discussion a.  Dicey raised the issue of the meaning and importance of the ‘rule of law’; he identified its role in protecting individual liberty; stressed its origin in the common law and the difference from the Continent; he recognized the increasing danger to the ‘rule of law’ from administrative or public law; he left some ambiguity about the status of liberty as a norm and the relationship between legislation and adjudication. b. Leoni gave a more thorough discussion of the difference between English and Continental law and gave the classic exposition of the danger to individual liberty posed by legislation.

10  N. E. NEDZEL AND N. CAPALDI

c. Hayek did three important things: First, he gave a more detailed historical account of the unique emergence of the ‘rule of law’ in England; second, an account of the failure of Continental law to adopt the ‘rule of law’ which he attributed largely to positivism and the relation of positivism to legislation (politics) and collectivism; third he rooted the ‘rule of law’ philosophically in spontaneous order and identified it as a meta or cultural norm. d. Fuller elaborated the threat of positivism and managerialism within the American context, challenged the positivist inability to give an adequate account of norms in the works of Kelsen and Hart, and gave an early expression of what became Oakeshott’s adverbial account of the rule of law in a civil association. e. Oakeshott agreed with Hayek on the dangers of positivism and Enlightenment Project collectivism, but resolved by way of Hobbes the tension between adjudication and legislation, defused the potential threat of legislation to individual liberty by rooting the former in a culture of civil association (not a specific list of rights or theory of rights), outlined the historical and philosophical origins of civil association, and specified the adverbial character of law and therefore the ‘rule of law’ in a civil association. What these five authors (Dicey, Leoni, Fuller, Hayek, and Oakeshott) share is a commitment to individual liberty as a historical (English) entity—not an abstraction—as well as a philosophical critique of Enlightenment Project planning (Bentham, positivism, and rationalism), the notion of maintaining coherence with a previous inheritance [spontaneous order] rather than a utopian political theory, and a recognition of the Continent as more prone to Enlightenment Project collectivism, and the embrace of a judicial conception of politics as opposed to a politicization of the judiciary.

Notes

1. When we put single quotes around ‘rule of law’ we are referring to what we claim developed in Anglo-American jurisprudence. When we speak of ‘rule thru law’ we mean the different Continental analogue. We shall also speak of Anglo-American jurisprudence as an ‘inheritance’ in Oakeshott’s sense; we speak of the Continental ‘tradition’ because it has a more rigid structure. We are mindful of the sometimes-problematic differences

1  WHY THE ‘RULE OF LAW’ 







11

between English and American law and explain, briefly, how this reflects the Continental influence on American law. We plan a subsequent volume that will focus exclusively on the differences between the two forms of jurisprudence. 2. Tamanaha’s historical survey (2004, p. 5) concludes that ‘the rule of law ideal initially developed in non-liberal societies’ by which he means the classical world. We disagree. Everything depends upon one’s definition of the rule of law; the concept of ‘the rule of law’ is not to be confused simply with limiting the abuse of governmental power, without some argument about what those powers are and what one means by ‘abuse.’ We shall sharply distinguish between ‘the rule of law’ and ‘rule through law.’ We are not claiming that the ‘rule of law’ is present from day one, rather it evolves within a specific historical jurisprudence. Hence the important role of spontaneous order. 3. The full-scale philosophical challenge to positivism and later analytic philosophy is found primarily in Hayek and Oakeshott because they were thinkers who embraced and excelled in a number of academic disciplines, including philosophy, and because they addressed the underlying philosophical issues as opposed to focusing on law. 4. The ‘Enlightenment’ is a term used broadly to refer to the intellectual and social ferment in Western Europe during the eighteenth century. ‘The Enlightenment … was the work of three overlapping, closely associated generations. The first of these, dominated by Montesquieu and the longlived Voltaire … grew up while the writings of Locke and Newton were still fresh and controversial, and did most of its great work before 1750. The second generation reached maturity in mid-century: Franklin… Buffon… Hume… Rousseau… Diderot… Condillac … Helvetius … d’Alembert … It was these writers who fused the fashionable anticlericalism and scientific speculations of the first generation into a coherent modern view of the world. The third generation, the generation of Holbach and Beccaria, of Lessing and Jefferson, of Wieland, Kant and Turgot … moved into scientific mythology and materialist metaphysics, political economy, legal reform, and practical politics … In the first half of the century, the leading philosophes had been deists and had used the vocabulary of natural law; in the second half, the leaders were atheists and used the vocabulary of utility’ (Gay 1966, pp. 17–18). Randall (1962, p. 862) characterized the French appropriation as follows: ‘Voltaire and his successors took over and used four main bodies of English ideas. First, there was Newtonian science, which was developed in France into a thoroughgoing materialism. Secondly, there was natural religion, or Deism, which the French pushed to atheism. Thirdly, there was Locke and British empiricism, which became theoretically a

12  N. E. NEDZEL AND N. CAPALDI thoroughgoing sensationalism, and practically the omnipotence of the environment. Finally, there were British political institutions as interpreted by Locke, the apologist for 1688, which became the basis of the political theories of the Revolution.’ Our intention is not to generalize about this entire period but to identify a specific strand of thinking that we shall call the Enlightenment Project. Alasdair MacIntyre, in his enormously important and influential book After Virtue (1981), identifies the ‘Enlightenment Project’ as the attempt to provide an independent rational justification of morality (p. 38). The Enlightenment Project is the attempt to explain, predict, and control the human predicament through so-called social science and the use of a social technology: see Becker (1962, Chapter Four), for an exposition of the position that the dream of a technological utopia is the common inheritance of liberals, socialists, and Marxists. Advocates of social science, modeled after the physical sciences, believed they could engage in the explanation, prediction, and control of social phenomena. Berlin (2013, pp. 27–28) characterizes the Project as follows: ‘… there were certain beliefs that were more or less common to the entire party of progress and civilization, and this is what makes it proper to speak of it as a single movement. These were, in effect, the conviction that the world, or nature, was a single whole, subject to a single set of laws, in principle discoverable by the intelligence of man; that the laws which governed inanimate nature were in principle the same as those which governed plants, animals and sentient beings; that man was capable of improvement; that there existed certain objectively recognizable human goals which all men, rightly so described, sought after, namely, happiness, knowledge, justice, liberty, and what was somewhat vaguely described but well understood as virtue; that these goals were common to all men as such, were not unattainable, nor incompatible, and that human misery, vice and folly were mainly due to ignorance either of what these goals consisted in or of the means of attaining them-ignorance due in turn to insufficient knowledge of the laws of nature… Consequently, the discovery of general laws that governed human behaviour, their clear and logical integration into scientific systems-of psychology, sociology, economics, political science and the like (though they did not use these names) - and the determination of their proper place in the great corpus of knowledge that covered all discoverable facts, would, by replacing the chaotic amalgam of guesswork, tradition, superstition, prejudice, dogma, fantasy and “interested error” that hitherto did service as human knowledge and human wisdom (and of which by far the chief protector and instigator was the church), create a new, sane, rational, happy, just and self-perpetuating human society, which, having arrived at the peak of

1  WHY THE ‘RULE OF LAW’ 





13

attainable perfection, would preserve itself against all hostile influences, save perhaps those of nature.’ In the field of law, the Enlightenment Project was originally reflected in the work of Jeremy Bentham. Guided by its commitment to a narrow positivism, Bentham came in time to identify law with the commands of a sovereign. The fate of this direction will be elaborated upon shortly. 5. We think it is significant that this movement originated on the Continent. It reinforces our contention that the legal/intellectual systems of the Continent are, for historical reasons, different from Anglophone systems. Comte, unlike Mill, did not believe that any fundamental truths could be located in the psychology of the individual and therefore placed the locus of such truths in the social whole—hence the invention of the discipline of sociology. Hayek contends that this positivism undermined in the mid-nineteenth century the budding Rechsstaat which was initially inspired by the English model. 6. As we shall spell out below, positivism as a movement is not clear on its own history because positivism does not take history seriously as an explanatory domain. Ironically, positivism promotes an ahistorical mentality in later generations of its adherents. For example, Anthony J. Sebok (1995), identifies ‘legal positivism’ with three theses anachronistically attributed to Bentham as its originator: the separability thesis (that there is no necessary connection between law and morals); the command theory of law’s origin; and the ‘sources thesis’ that the authenticity of a law is a question exterior to, and independent of, that of its content, and one therefore had to know by whom and in what manner a norm was promulgated in order to determine its status as law. Sebok does not identify the French origins of Bentham’s own thought, does not connect positivism with the Enlightenment Project, failing to note that Bentham was the social engineer par excellence, nor does he connect it with its formal program as articulated in Vienna in 1929 [Thesis one]. The notion of a connection between law and morals is ambiguous. Sometimes it meant a rejection of natural law—but one does not have to be a positivist to share in the rejection; sometimes it meant the controversial and now largely debunked view that a legal system can be identified independent of all norms (scientism). One can also agree with the so-called sources-thesis [three] without being a positivist (Dicey, Oakeshott). As we shall show in Chapter 3, there is a long-standing tension in Anglo-American law between customary law and legislation. Those who have wanted to use law as an instrument of social reform have emphasized the primacy of legislation as well as minimizing the importance of the ‘rule of law.’ What is significant in the Anglo-American legal inheritance is that the norm of the ‘rule of law’ serves to limit the

14  N. E. NEDZEL AND N. CAPALDI rationalist excess of such reform, and this is precisely what Dicey meant by the Law of the Constitution. Sebok’s interpretation of positivism is itself positivistic. It presents ‘positivism’ in the form of conceptual analysis without context. ‘Positivism’ appears as an innocuous theoretical position vaguely associated with Bentham (‘fake’ history); it is what Oakeshott would call a ‘rationalist’ analysis of a term, abstracted from actual theorists. Sebok ignores real history, the fact that positivism was held by specific people who used the term (e.g., Comte) and had an agenda which could be read back into previous theorists. Historically, legal positivism was espoused in opposition to ‘natural law.’ 7.  Perhaps the most remarkable early treatment of ‘legal positivism’ is to be found in Fuller’s The Law in Quest of Itself ([1940 Lectures at Northwestern University] 1966). His specific focus was on American legal realism, Holmes, and Kelsen. His overall conclusion is ‘the essentially sterile nature of any form of legal positivism which purports to divorce itself from a definite ethical or practical goal’ (p. 99). He specifically calls attention to ‘[t]he most dangerous quality of legal positivism [is]…the inhibitive effect it inevitably has upon the development of a spontaneous ordering of human relations [italics added]…[citing Kelsen who denies] the possibility of an ordering of society which rests upon a voluntary acceptance of guiding notions and is not dependent upon any governmental structure’ (pp. 110–111). In trying to understand the vogue of positivism, Fuller points out that ‘[the] tacitly accepted philosophy of positivism seems to me also to underlie the modern preference for legislation as a means of legal reform’ (p. 131). See also in Chapter 7 a comparison to Oakeshott’s conception of the ‘rationalist.’ 8. One of the consequences of a commitment to ‘scientism’ is the denigration or demotion of history as an important explanatory factor. 9. The British thinker most enamored of this program was Jeremy Bentham. Bentham has been retrospectively called a ‘positivist,’ and his follower who allegedly employed some of these ideas in the law was John Austin. When many people talk about ‘legal positivism’ they mean the literature that begins with Austin and his twentieth-century critics such as Kelsen and Hart. This literature has taken on a life of its own. Generations of students have been initiated into a conversation without discussion of the origin or the rationale of the conversation. What is lost or obscured by this approach is the understanding of the basic importance of the program of social technology. 10. See N. Capaldi (1998). 11. Some are under the misimpression that ‘legal positivism’ only means that law must be identified with, and defined by, ‘positive’ law and not something else. However, the ‘positivism’ part actually refers to a philosophical

1  WHY THE ‘RULE OF LAW’ 

15

program initiated by Bentham and the French Philosophes and the term was coined by its greatest nineteenth-century advocate, Auguste Comte, and is anachronistically, but not inaccurately, applied to Bentham, perhaps controversially to Austin. Recognizing this requires some knowledge of intellectual history, but positivists and their progeny never took history itself seriously. We count analytic philosophy and analytic jurisprudence as part of the progeny. More will be said on this later. 12. https://plato.stanford.edu/entries/legal-positivism/. 13. Early positivists like their predecessors the philosophes championed democracy. The philosophes naively believed that all knowledge could be reduced to a finite set of truths (The Encyclopedia) that could be empirically verified and then taught to everyone because education was naively thought to be based on total environmental determinism (James Mill’s and Bentham’s education of J. S. Mill). In time, everyone would agree in a free and open discussion. Once these naïve conceptions were abandoned, analytic jurisprudence shifted its focus of reform from political democracy to an elite judiciary (The US Supreme Court became more important than Congress or the legislative power). A technocracy is the appropriate model of governance in light of the Enlightenment Project. This explains, in part, its attraction to law school faculty in particular and university faculty in general. 14. Legal positivism ‘is the carbon copy of positivism in the sciences. It seeks to turn the law into an empirical science along the lines of physics or biology. The subject matter of that science must confine itself to positive, observable law. This comprises the legal rules which have been introduced according to the formal procedures provided therefore in the legal system. In those countries where the law has been codified … legal positivism is the same as legislative positivism. All hierarchy of norms is internal to the positive law itself … legislative positivism is the transition into legal theory of the system of representative democracy combined with popular sovereignty’ (Lesaffer 2009, pp. 462–463). 15. See Rachel Kleinfeld (2006) for a discussion of the distinction between ‘rule of law’ and ‘rule by law.’ Kleinfeld focuses on the difficulties of promoting the rule of law in developing countries. Nevertheless, she is among the few to mention Oakeshott as well as Dicey and Hayek, is cognizant of the threat to the rule of law posed by administrative law, and recognizes the importance of the cultural context for reforming institutions, something Oakeshott stresses in his discussion of civil association. Our focus is on the conflict between these opposing conceptions as reflections of an underlying debate between advocates of liberty and advocates of equality within the Anglo-American legal inheritance.

16  N. E. NEDZEL AND N. CAPALDI The concept of the ‘rule of law’ can be distinguished from rule by law, or what we are calling ‘rule thru law,’ according to Li Shuguang: ‘The difference….is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government that suppresses in a legalistic fashion.’ Quoted in Mufson (1995). 16. This is why it is important to Oakeshott to establish the autonomy of history, specifically that it cannot be reduced to or further explained by any alleged social science. To take history seriously is to recognize that (a) there are no laws of historical causation or development and (b) not every thing and every concept exists from the beginning of time or in the ancient world but might have arisen much later (see next note). 17. Tamanaha (2007, p. 469) asserts: ‘…the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries.’ 18. This loss is reflected in Hobsbawm’s argument that globalization leads both to global gesellschaft and to artificially contrived collective (gemeinschaft) identities. 19. According to Oakeshott, Bacon and Descartes suggested the idea of a socially organized program to use science and technology to dominate and economically exploit the world. Neither intended or aspired to create a social technology—that was what the Enlightenment Project of the philosophes became. Nevertheless, such a program has ominous implications for social organization.

References Becker, C.L. ([1932] 1962) The Heavenly City of the Eighteenth Century Philosophers. New York: Yale University Press. Berlin, I. (2013) Against the Current. Princeton: Princeton University Press. Capaldi, N. (1998) “The Enlightenment Project in Twentieth-Century Philosophy.” In John C. McCarthy (ed.), Modern Enlightenment and the Rule of Reason. Washington, DC: Catholic University of America Press, 257–282. Fuller, L. ([1940 Lectures at Northwestern University] 1966). The Law in Quest of Itself. Clark, NJ: Lawbook Exchange Ltd. Gay, P. (1966) The Enlightenment. Vol. 1. The Rise of Modern Paganism. New York: Norton. Kleinfeld, R. (2006) “Competing Definitions of the Rule-of-Law.” In Thomas Carothers (ed.), Promoting the Rule of Law Abroad. Washington, DC: Carnegie, 31–73. Lesaffer, R. (2009) European Legal History: A Cultural and Political Perspective. Cambridge: Cambridge University Press.

1  WHY THE ‘RULE OF LAW’ 

17

MacIntyre, A. (1981) After Virtue. London: Bloomsbury Academic. Mufson, S. (1995) “Chinese Movement Seeks Rule of Law to Keep Government in Check.” Washington Post, 5 March, A 25. Randall, J.H. (1962) The Career of Philosophy. New York: Columbia University Press. Sebok, A.J. (1995) “Misunderstanding Positivism.” Michigan Law Review, Vol. 93, pp. 2054, 2058, 2126–2132. Tamanaha, B. (2004) On the Rule of Law. Cambridge: Cambridge University Press. Tamanaha, B. (2007) “How an Instrumental View of Law Corrodes the Rule of Law.” DePaul Law Review, Vol. 56, No. 2, pp. 469–505.

CHAPTER 2

Spontaneous Order

Introduction An understanding of and appreciation for the rule of law has been limited to legal theorists like Hayek and Oakeshott (and before them Dicey) who have themselves rejected the rationalism and ‘scientism’ that has become the basic intellectual orthodoxy since the nineteenth century. An alternative, non-rationalist understanding of human life and human society is needed to underwrite the rule of law perspective according to which the role of law is to define the rules that will enable individuals who have their own ends and commitments to live in peace and voluntary cooperation with their fellows. In this chapter, we explain what a spontaneous order understanding is in general. In subsequent chapters, we show how the British intellectual tradition in general reflects spontaneous order and how the legal inheritance in particular is an example of spontaneous order. Spontaneous Order1: The Simple Version Spontaneous order is easy to explain but difficult to understand. Here is the easy explanation.

© The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4_2

19

20  N. E. NEDZEL AND N. CAPALDI

1. Practice precedes theory. 2. Theory at best is the clarification of previous practice in order to explicate norms for future practice. 3. The clarification seeks consistency and coherence with previous practice. 4. The clarification is an imaginative and inductive process for which there is: a. No algorithm; b. No possible appeal to any structure outside of practice (hence there can be no theory of how practice and theory are related); c. No guarantee of convergence either within one culture (one set of practices) or among cultures; d. The lack of a guarantee does not preclude an evolving convergence. However, ‘There are, strictly speaking, no closed systems within the Universe.’2 5. All those committed to epistemological realism (positivists, natural law theorists) will either fail to grasp or object to 4(b) and 4(c). a. All versions of scientism (positivism, analytic philosophy, etc.) are anti-philosophical in their refusal to question their own starting point and ultimately lead to the end of rationality. b. Epistemological realists, i.e., those who believe that there is something outside of us to which our thoughts must conform, do not and cannot demonstrate the truth of their position3 but find subscribing to the concept of spontaneous order very uncomfortable. c. The spontaneous order view cannot guarantee a utopian resolution of all potential conflict, it posits that intellectuals in general and philosophers in particular possess no special public policy wisdom, and thus it does not entail a specific ideology or public policy theory. d. Whereas, scientism (which is a form of epistemological realism as is positivism) entails i.  Reductive epistemology in which we can eventually explain everything. ii. A social technology that would make (modern) liberals, socialists, and Marxists into heroes because they can in principle produce a utopian resolution of all social conflict by reference to a collective good.

2  SPONTANEOUS ORDER 

21

iii. Hence, the fact that both Hayek and Oakeshott object to scientism4 and to the undermining of individual liberty and link them together. 6. The ‘rule of law’ evolved out of the spontaneous order of the Anglo-American legal inheritance. It appears full-blown in England in the seventeenth century but has a long history from before that time. Both Hayek and Oakeshott show its English historical origin, and Hayek goes on to explain why and how it was thwarted on the Continent. Human action precedes human thought. Within human action, individuals pursuing individual goals in interactions with each other are not originally intending to create order through a previously agreed-upon plan. They may not even have a common language. Through trial and error, they find ways to agree on how to carry out one or more cooperative undertakings. Subsequent to the successful action, they articulate their understanding. In explaining the rules to later initiates, they articulate the groundwork for future planning and cooperation; but the original action did not depend on a preexisting or self-conscious plan. They might not even articulate the rules as rules until someone fails to perform correctly or disagreement arises on the next step. This is how social order emerges. The development of a natural language is an excellent example of spontaneous order. Languages cannot be planned or developed except by using a preexisting language. The first language itself is taught through actions such as pointing, head shaking, facial expressions, etc. According to advocates of spontaneous order, there cannot be a purely theoretical account showing some hidden plan underlying the relationship between thought and action. Nor can anyone control future permutations. Practice precedes theory. Recall Hume’s example of two men rowing a boat and who gradually coordinate their strokes. We theorize (explicate) when we need to clarify a practice either because someone has made a mistake (did not do what was expected) or we cannot agree on the next stage of the practice. The disagreement or confusion is understandable because a vast multitude of practices develop over a long period of time among many different members of a culture. Moreover, if a practice has been explicated, it may confront novel circumstances that call for further explication or refinement. The refinement may take the form of a rule or set of rules.

22  N. E. NEDZEL AND N. CAPALDI

The participants in a practice change the practice or cause the practice to evolve by adding on new interpretations of the rules. While a practice is open-ended and cannot be definitively analyzed, it can be studied historically, and it can continue to evolve, sometimes through the conscious efforts of its participants who seek to apply the historically inherited rules to new circumstances. There is no unique intellectual act by which rules are grasped and applied. We are free to reject any particular application, and this rejection cannot be formulated in advance. The final acceptance of an interpretation (even a proof in mathematics) is a new decision, not entailed by previous decisions. There can be no mechanical application of a rule because no system of rules can contain a meta-principle for the development and application of the rules. Translated into sociological terms, cultures are the institutionalized background in which what we as social agents do is embedded. The glue that holds it together, that makes communication possible, that preserves it from constant breakdown is the grounding in social practice. All meaning is thereby grounded in social practice. Cultures are not rigid structures that can be conceptualized once and for all, and any explication of a culture cannot be by appeal to a deductively organized set of principles, nor by a prioritized list of principles, nor by appeal to a structure at another level such as psychology or biology. No explication of a culture can guarantee the continued survival or coherence of that culture or prevent its splitting into a number of variants or denominations that share a history. No culture is intrinsically barred from moving in a new direction as long as some inherited practice can be interpreted to accommodate what originally might appear to be alien to it. One of the reasons that Dicey, Leoni, Fuller, and especially Hayek and Oakeshott can explicate the meaning of the ‘rule of law’ is that they ground it in English cultural history. The one thing that transcendent philosophers and those committed to scientism and social technology cannot do is explain the ‘rule of law’ precisely because they are looking for something independent of cultural history. This helps to explain in part why the World Bank failed in its efforts to promote the rule of law in countries to which it lent money, namely the imposition of an abstraction on a country independent of its cultural history.5 It also explains why and how Chile was able to develop a new criminal justice system promoting the rule of law by incorporating cultural attributes into its development.6 A cultural inheritance can never be retrieved simply by returning uncritically to the past. Instead, one must re-identify something that is a permanent part of the inheritance even though it has always been

2  SPONTANEOUS ORDER 

23

expressed in a specific historical context. A cultural inheritance is not a rigid structure but a fertile source of adaptation (Oakeshott) that both evolves and expands to incorporate things that might from an earlier perspective even seem alien. We are intellectually and morally obligated to engage in a perpetual retrieval of our cultural inheritance. Since this is not solely an intellectual act, we should now not be surprised that there is (a) no definitive articulation, (b) inevitable controversy over its articulation, and (c) a necessary act of faith in its continuing apprehension. Controversy is not a problem to be solved but an inevitable condition that requires a moral response. The spontaneous growth of law can be explained through the following sequence.7 1. Human beings are social animals and their societies adjust and develop over time. They were not invented from nothing. 2. Society is thus an order brought about by continually changing interactions. 3. The laws and customs that every society develops preexist legislation, and are not necessarily all good. Societies are inevitably dialectical. 4. While societies share some fundamental features because they all develop from a human context; nevertheless, each society develops some customs and laws that are unique to itself. 5. Justice can be defined as the virtue that inclines each to render unto others that which is due. 6.  The survival of a society depends on discovering and establishing that which is due. In other words, contract and ownership are intrinsic to this survival because they are essential to a trading order. 7. The trading order, i.e., the market, is simply a continuing set of transactions and is concerned only with reciprocal justice. Thus, it cannot solve all disputes that may arise in a society. 8. Controversies involving rival claims give rise to the need for unbiased, neutral judicial adjudication. 9. Unbiased adjudication is based on reflection on preexisting practice and its aims and requires interpretation, reinterpretation, and application. It is subject to revision. 10. The authority of adjudicators as well as the authority of legislators is subject to question and is contestable and the source of such authority must be accepted by or acquiesced in by those to whom they apply.8

24  N. E. NEDZEL AND N. CAPALDI

Practice precedes theory; Hayekian spontaneous order explains the origin of social phenomena. No one challenges this part of the explanation. As a historical claim this seems fairly obvious. It is the next step that is controversial. Once human beings become conscious of the implicit order in what they do, they can self-consciously articulate and follow the now explicit order. But new questions arise. How can we be sure that the explicated order will work for all future contingencies? What if different societies or subgroups have different evolved orders? How do we choose? How do we know that we made the right choice? All of the foregoing questions are asking what is the standard against which we measure a particular evolved order? The response is that the questions, in one sense, are illegitimate. There is no external (objective) standard. We can discover, and have discovered, ongoing tensions within the implicit order, and we continue to amend the order by introducing explicit rules. There is no reason to believe that there is or will be a final and definitive statement of the implicit/explicit order, however amended, that avoids all future tensions. There is no reason to believe that there is an inherent teleology or progressive development with a specific terminus that avoids all future tensions. In short, there is no way of stepping radically outside of all past practice. Why then is this so difficult to understand and to accept? First, in sophisticated human societies teaching is always part of a ritualized process that begins by articulating an initial order so that we tend to forget (or deliberately choose to downplay or mythologize) the origins of why we started the way we did. In even more sophisticated societies, intellectuals and technocrats as a special social class are tasked with planning the next step—thereby reinforcing at the highest level the belief that in the beginning there must have been an original plan or planner or, barring that, we need to formulate a complete and comprehensive plan for all future contingencies. We tend to forget that reflection is, ultimately, on previous action and not reflection on reflection.

The Entrenched High-Ground Opposition The second reason why spontaneous order can be difficult for some to accept is the fact that currently the highest echelons of the intellectual world are controlled by a combination of the presuppositions of objectivity, monism, realism, and utopianism, all vouchsafed by various permutations of scientism.

2  SPONTANEOUS ORDER 

25

Most of prior Western Thought has operated on the following model: there is an (external, objective, etc.) order to the world or universe, and our two obligations are (a) to intellectually apprehend the order that exists external to and independent of us, an order that was created or imposed by a supernatural Being (Monotheistic Religions) or is inherent in the world itself (Greek Philosophy) and (b) to conform our behavior to that order. Norms are allegedly inherent in the original objective order (either the Commands of the Supernatural entity—hence we speak of ‘law’ confusedly as both true of the physical world and the social world; or the presumed teleology of nature itself). In short, several millennia of thinking have conditioned us to expect that acceptable explanations (a) terminate in something independent of human beings self-conceptions and (b) that the same kind of explanation has to be given to everything, both human and non-human. However problematic this position becomes it is the default starting point of all objections to spontaneous order. The third reason that it is difficult to accept spontaneous order explanations is that they do not promise utopian resolutions. Keep in mind that the faith in scientism is historically a substitute for a lost faith in a monotheistic religion. Spontaneous order explanations do not reinforce what Oakeshott called the politics of faith.9 It requires, if you will, intellectual therapy to surrender this default attitude. Most of us would agree that it is admirable to try to resolve conflict and that the world would be a better place without conflict (or so we think). However (a) this has never been done successfully and (b) it could be argued that the search for utopia has engendered unnecessary conflict. If we may be permitted to repurpose a cliché, the perfect is sometimes the enemy of the good. A spontaneous order explanation can be difficult to accept precisely because it challenges its critics’ presuppositions. For advocates of spontaneous order explanations, there is no external position from which to judge order. Moreover, there is a fundamental difference between how we understand ourselves and how we understand the non-human world such that the former cannot be explained by the latter. It is, if anything, quite the reverse. We have mistakenly created a useful tool and then tried to explain the maker of the tool by reference to the tool. It is a mistake because the tool is itself unintelligible except by reference to the toolmaker. Spontaneous order explanations became popular precisely because of the ongoing problems with the traditional forms of explanation.

26  N. E. NEDZEL AND N. CAPALDI

The alleged virtue of the traditional forms of explanation is that they were comprehensive, related everything to everything else in a great collectivity without remainder, and their alleged objectivity promised to overcome all conflict by appeal to something other than a specific set of interests. Alas, this did not turn out to be true in the case of supernatural or religious explanations, both because of their competing proliferation and the requirement that wisdom involved acquiescence into mystery. The continuous misappropriation of religion for political purposes, human ambition, the religious wars of the seventeenth century, and the twentieth and twenty-first centuries’ reassertion of religious fundamentalism all reinforce this failure. Nevertheless, the utopian dimension still hovers in the background.10 Turning to classical Greek and Roman secular thought, two major competing models were offered, one originated by Plato and one by Aristotle. Plato asserted that the world could be understood as an imperfect manifestation of ideal concepts (forms), like geometry.11 Aristotle asserted that the world could be understood both in terms of the inner purpose (telos) of each entity and the holistic system formed by a hierarchy of purposes (teleology). Rather than appealing to abstractions, Aristotle believed that these purposes were empirical, that is, we could directly observe these purposes in our experience of nature. Nevertheless, Aristotle followed Plato in believing that an adequate explanation was geometric in form, namely, a deduction from first principles. In a monistic universe, everything has to be traceable back to a fundamental principle,12 and all adequate explanation has ultimately to be a deductive argument.13 Both Plato and Aristotle were monistic: There is only one kind of explanation for everything, both non-human and human. Their thinking is anti-historical: Time is cyclical; history is an inadequate form of thinking; there is no evolution. Even a good deal of medieval thought was the attempt to provide a rational for religious belief by employing both Platonic (Augustine) and Aristotelian (Averroes, Maimonides, Aquinas) models. It was most notably marked by attempts to spell out the relationship between faith and reason. The monistic perspective was eventually challenged in the early modern period. Besides the general dissatisfaction with the abstractness of philosophy, the great medieval Aristotelian synthesis reflected in Aristotle’s physics and Ptolemaic astronomy, was challenged by modern physical science (Copernicus, Galileo, Descartes, Newton). Specifically,

2  SPONTANEOUS ORDER 

27

the notion that nature was infused with purpose (organic holism) was rejected and replaced by a mechanistic model of the physical universe (no final causation or telos). The initial line of retreat was to deny teleology in the physical world but insist upon its presence in the biological and human world. In the nineteenth century, Darwin challenged this with regard to the biological world. Since then, philosophy has focused on putting Humpty Dumpty back together again. The nineteenth century also saw Dilthey’s challenge to the idea that the ‘human’ could be explained by the non-human. Although modern science has rejected Aristotle’s physics, much of the philosophy of science—as opposed to what scientists do or think- continues to use the transcendent and monistic categories of Plato and Aristotle (epistemological realism—there is an objective order outside of us) to understand science. ‘Scientism,’ which is a kind of new religion, (and its exemplification in positivism and analytic philosophy) continues to pour the new wine into the old bottles. The most serious problem generated by the transcendent perspective is the status of norms. The decline of teleology and Newtonian atomism led to a focus on individual interests or passions. This raised all sorts of issues about internal coherence and the coherence of one individual with others (all the irresolvable problems associated with utilitarianism); deontological theories moved the focus from (incalculable) consequences to motivation but required (unobtainable) agreement on the starting point (analogous to the problem of the first language).14 As we now know, positivists misunderstood science. Science cannot explain itself, and positivists make several common mistakes in applying what they think is scientific methodology to social issues. First, it is difficult to grasp any starting point for human behavior, and attributing the starting point to something else merely begs the question of its origin.15 In trying to ascertain a starting point, we can stand outside each and every specific thing and ask about its origin. What we cannot do is stand outside of everything at once. It’s a logical fallacy, namely, the fallacy of composition—believing that what is true of every part is also true of the whole. Wherever we stand, we are assuming the inherent norms of that stance. Even the social practice of science itself is a conscious choice guided by an evolving normative order; we cannot ‘objectively’ study this practice without reliance on a previous evolving order, ad infinitum. Oakeshott, like Wittgenstein, understood that he was providing therapy to help intellectuals escape from this misunderstanding.

28  N. E. NEDZEL AND N. CAPALDI

They are trapped in their own framework, and like Wittgenstein, Oakeshott wants to help the fly to escape from the fly bottle. Toward that end, he describes the ‘rationalist.’ He does not name a specific person because he is trying to capture a pathological attitude by holding up a mirror to those tempted or struggling with scientism: ‘…he stands (he always stands) for independence of mind on all occasions, for thought free from obligation to any authority save the “authority” of reason…. he is the enemy of authority, of prejudice, of the merely traditional, customary, or habitual. His mental attitude is at once skeptical and optimistic: skeptical, because there is no opinion, no habit, no belief, nothing so firmly rooted or so widely held that he hesitates to question it and to judge it by what he calls his “reason”; optimistic … His cast of mind is gnostic … a well-trained rather than … an educated mind … a deep distrust of time, an impatient hunger for eternity … he believes in argument as the technique and operation of “reason”… The conduct of affairs, for the Rationalist, is a matter of solving problems … the character which the Rationalist claims for himself is the character of the engineer … political life is resolved into a succession of crises, each to be surmounted by the application of “reason”… rationalist politics [are]…the politics of perfection, and … the politics of uniformity[16]… what he cannot imagine [is] a political problem of which there is no “rational” solution at all … the search … for an innocuous power which may safely be made so great as to be able to control all other powers in the human world, and the common disposition to believe that political machinery can take the place of moral and political education.’17 It is difficult to grasp this starting point. We cannot give a purely objective analysis of any one social institution (e.g., science or law); we can give an analysis but only because of prior social agreement on what we already think an analysis should be. We must always presume the prior agreement. How are we to understand the prior agreement?

Prior Agreement as Custom In the hard sciences, we find two kinds of explanation: elimination and exploration. In elimination, we substitute a new theory for an old one (Copernicus as opposed Ptolemy, Newton as opposed to Aristotle), and we can do so because there is a presumed set of consensus norms (data fit, predictability, practicality, etc.). This is the version of scientism to be found in positivism. In exploration, we explain the surface by appeal to

2  SPONTANEOUS ORDER 

29

hidden structure (atoms, molecules), and we can do so because we can later confirm scientifically what was initially hidden. This is the version of scientism in analytic philosophy (of law, etc.). The alleged social sciences that are supposed to explain all social practices (norms) including scientific practice fail18 because (a) they cannot appeal to consensus norms without arguing in a circle and (b) they are unable to confirm any hidden structures—all we ever get are newer and more fashionable conceptual schemes—the riders and tunes may change but we find ourselves back on the same carousel.19 In order to theorize, that is, in order to explore a hypothesis, about the hidden structure behind our practice we must first identify the object of analysis, i.e., one must first identify the practice. Therefore, one must already possess an intuitive common-sense understanding of practice before it can be analyzed. The theoretical analysis is forever parasitic upon the intuitive understanding and can never go beyond it. In examining any social practice, including our cognitive or normative practices, we are not really observing an independent object as the physical sciences presumably do, rather we are examining what we mean by what we are doing. It is therefore logically impossible to explore the hidden structure of our practice because there is no such structure! Social practice and its inherent norms are always presupposed. At best, we can explicate those practices and norms. Such explication presupposed agreement on some other level. If there are rival explications, we choose among them by appeal to a consensus explication of some more fundamental or encompassing practice. No practice can be judged by norms external to the practice except when those norms are themselves recognized as part of a more encompassing practice. The more encompassing practice is custom.

Custom as Spontaneous Order Custom reflects a specific form of social order. Custom arises from spontaneous order. The origin of social norms is not the result of any conscious intentions or mysterious objective purposes but the unintentional or unintended consequences in the actions of individuals directed toward other goals. Individuals do not, however, start out with pre-defined self-conscious goals. The social dimension is a prerequisite even for understanding individual action. There is no preexisting objective entity; spontaneous order is a retrospective reflection of what ‘we have been doing’; there is no original intention (no subconscious) or primordial

30  N. E. NEDZEL AND N. CAPALDI

choice (or telos or original position). We discover ourselves through reflection on previous actions; sustaining the social order, however, is a conscious choice. There are, of course, conflicting customary inheritances. However, we might want to examine a specific customary inheritance, the AngloAmerican legal inheritance, because it has been relatively successful in (a) maintaining order within its own boundaries, (b) successful in resisting the imposition of an external order, and (c) successful in promoting other values besides order (e.g., individual liberty, economic growth). Critics of this approach (Hayek in particular is always reproached this way) are apt to challenge sustainability. What the critics fail to see is that they too would have to specify a prior framework on which we can agree; failing that we would need a prior framework which allows us to agree on how to disagree—this is precisely what the ‘rule of law’ in the AngloAmerican legal inheritance uniquely allows us to do.

Alternatives to Establishment Metaphysics and Epistemology The competing position (which evolved slowly from Descartes’ initial insistence that the mind is different from the body through to Hume and Kant’s Copernican Revolution to idealism, Dilthey, etc.,) was that (a) the way in which we understand human beings is fundamentally and irreducibly different from the way in which we understand physical nature and (b) the way in which we understand the physical universe is derivative from and subservient to the way in which we understand ourselves. Another way of putting this is that modern and contemporary philosophy is a battleground between monists who tend to be epistemological realists (our knowledge is ultimately knowledge of structures independent of ourselves) and their opponents who reject realism by asserting that knowledge is always reflective of human interests or perspectives. The most outspoken and influential philosophical pluralist of the twentieth century was Ludwig Wittgenstein. Wittgenstein, in his later philosophy, was the antithesis of the positivist and the analytic philosopher. Wittgenstein rejected scientism, rejected the notion that philosophy was itself a cognitive discipline, and argued that philosophy was not the locus of theories (either eliminative or exploratory). The task of philosophy was the explication of norms inherent in our language (practice). There are no hidden rules, no hidden logic, and no discoveries about

2  SPONTANEOUS ORDER 

31

the real meaning of the expressions we use. Philosophical problems arose only when we confused the grammar of one kind of expression (or practice) with the grammar of another. In the Philosophical Investigations and in his subsequent work, Wittgenstein rejected scientism.20 Language is a tool,21 but scientism distorts the conception of language as a tool by making referential use basic. The distortion takes the form of likening language to a telescope in which we can only talk about the way in which the world appears using different sets of lenses. Scientism refuses to ask questions about the telescope itself, or the user of the telescope, or the interpretation of what is seen, or all of the uses to which it is put. If it did ask such questions, then we would see that the uses and the meaning of the results of the uses are molded by our culture. Wittgenstein further denied that the semantic and pragmatic dimensions of language can themselves be explained by some further science.22 Wittgenstein denied that reality determines the structure of language, rather language determines our view of reality. More accurately, the relation of human beings to external things (and to other human beings) is mediated by language in particular and culture in general. Thought itself is immersed in social life and social action. Consequently, practical reason takes primacy over theoretical reason. Language cannot be understood as a pictorial process. For something even to be a picture there must be an implicit interpretation of it as a picture, i.e., there must be picturing. Picturing is not a structure but the activity of a cultural agent. Despite the emphatic, repeated rejection by Wittgenstein of some of the philosophical presuppositions of the Tractatus, there are important connecting links between the earlier and the later work. Wittgenstein always denied that philosophy itself was a science. The Investigations stresses that the explication of what we are doing is (a) not science and (b) not capable of being superseded by a science. In the Tractatus, Wittgenstein had contended that it is not possible to discuss semantic notions since semantics was reflected in our usage. In the Investigations, Wittgenstein contends that we can discuss semantic conceptions but only in relation to how we live and act. Semantic constructs cannot even be identified in abstraction from our way of life (i.e., pragmatics). There is in the Tractatus the assertion of the existence of something ‘unsayable’ but nevertheless something which language showed. In the Investigations, the ‘unsayable’ is now to be understood as the pre-theoretical and its grounding in practice. The pre-theoretical resists and defies

32  N. E. NEDZEL AND N. CAPALDI

conceptualization. The famous lecture by Brouwer on intuitionism in mathematics led Wittgenstein to the insight that no system can be completely formalized in a finite set of principles and that there is always an ineliminable residue of interpretation. This foreshadows Godel’s proof that the total formalization of mathematics is impossible. There is no formalization apart from prior agency. Aided and abetted by some scientists (Polanyi) and some philosophers (Hayek, Popper) and historians of science (Kuhn, Feyerabend) who invoked social and historical frameworks to explain science, Wittgensteinians have maintained that thought always and irretrievably depends upon prior human action and interests. As Ryle once put it, efficient practice precedes theory. It is here that we must locate Hayek and Oakeshott. Given our description of the intellectual climate in the twentieth century and even today, it should be obvious why (a) Hayek and Oakeshott have been marginalized if not ignored in philosophical discussions in general and with regard to the understanding of law, (b) why they are critical of positivism in general and positivistic/analytical jurisprudence in particular, and (c) why they maintain that important norms such as the ‘rule of law’ cannot be understood and therefore might even be ignored, misrepresented, trivialized, or rejected by their opponents (Hart, Rawls, Raz, Dworkin, and Unger).

New Philosophical Foundations Philosophy, for them, is not an account of the world independent of human beings, nor is it an attempt to understand human beings from an external perspective. Philosophy is an attempt to understand human thinking about the world and the place of human beings within it. Any attempt to understand the world (or reality or however you choose to name it) independent of how humans think about the world (transcendent philosophy) is like trying to understand the world through the eyes of religions that claim to have access to a transcendent God. You will inevitably obtain a variety of conflicting accounts with no independent way to adjudicate among them. At least the Abrahamic monotheistic religions admit that there is a mystery at the heart of the universe—they recognized the limits of discourse (Oakeshott’s essays on the Tower of Babel). Transcendent philosophies recognize no such limits. In addition to engaging in interminable arguments among themselves, transcendent

2  SPONTANEOUS ORDER 

33

philosophies are united in denying that there are limits while at the same time conceding that they cannot explain what such a holistic account would be like. If philosophy is to be at all intelligible, it has to be immanent,23 that is it has to be an account of how human beings think about the world and the place of human beings within it. Will there be alternative immanent accounts? Yes, and the most any one account can do is to recognize the existence of alternatives. Hayek readily admits that this is the case and invites the reader to judge the adequacy of the Hayekian account. To the extent that he argues against other philosophies, it is against transcendent philosophy. The particular transcendent account that Hayek repeatedly attacks is known as scientism—physical science is the whole truth about everything without remainder. He singles out Descartes24 as the modern philosopher most responsible for starting this trend. Hayek debunks scientism on the ground that science, however valuable, cannot be explained except as a human intellectual construct (citing Hume and Kant in support of this contention). He specifically rejects attempts to use biology (or any natural science) or sociology (or any social science including economics) to explain how (except by analogy and example) we think. Our thinking according to Hayek (following the example of his cousin the philosopher Ludwig Wittgenstein25) is always expressed in language, and language is inevitably a human social intellectual construct. More specifically, it is a social construct that is integrally related to social practices or actions such that neither the language nor the practice can be understood independently of each other. The most we are capable of providing is an immanent account of our language(s), and this account is inevitably historical. It is necessarily historical because our thought has to be related to previous thought and most especially previous social practices with which it is integrally related. There is no standing outside this process (i.e., no transcendent account). ‘[A]dvance is here achieved by our moving within an existing system of thought and endeavoring by a process of piecemeal tinkering, or “‘immanent criticism”, to make the whole more consistent both internally as well as with the facts … Such “immanent criticism” is the main instrument of the evolution of thought …as distinguished from the constructivist (or naive) rationalism.’26 What we learn from history is that there are conflicting immanent accounts. How do we deal with such conflicts? We deal with them by (a) engaging in a social practice of conflict management and (b) by appeal

34  N. E. NEDZEL AND N. CAPALDI

to previous social practice. The best example of this, and it is Hayek’s, is the English common law. Is there any guarantee that we shall always be able to resolve or manage conflicts? The answer is no. Transcendent philosophy was supposed to resolve all such conflicts, but as we have previously stated there are conflicting alternative transcendent philosophies, historically these conflicts had led to or have been excuses for conflict on a global level, and we do not even understand what it means to offer a totalizing account. Transcendent philosophies are no more than secular religions. Historically speaking, insisting upon doctrinal uniformity has not defused conflict but exacerbated it. Nevertheless, by analogy with the common law, Hayek believes that some cultures have survived,27 prospered, and get to write the next installment in part because there is some stratum of practice with inherent norms that permits ongoing conflict management.

Spontaneous Order: Philosophical Version By the time we reflect on the evolution, we already have been operating within a set of inherited practices that contain inherent norms. All criticism or reflection or conflict resolution has to be imminent and by reference to inherent norms. The norms do not exist in a realm outside of inherited practice. So understood, there is no mystery of how one proceeds from ‘is’ to ‘ought.’ All practice already comes with implicit or explicit ‘oughts.’ The mystery is a problem only within secular transcendent philosophies. At best, we make explicit what has been merely implicit. It is a serious category mistake to take any one cultural practice (e.g., science) and pretend that it can explain this whole process or that there is a scientific account of science. This conception of philosophy is shared by Michael Oakeshott. Behind all of our practices and thoughts, there is a ‘non-rational framework of belief and institutions.’28 All of this applies to law and its inherent norms. ‘[A]ll positive law derives its validity from some rules that have not in this sense been made by men but which can be “found” and that these rules provide both the criterion for the justice of positive law and the ground for men’s obedience to it.’29 The original practices and their inherent norms are not something of which we are initially conscious. It is only later when we need to articulate the norms that we become conscious of them. The articulation is initiated by a problematic context or the existence of a challenge to habit.

2  SPONTANEOUS ORDER 

35

What this means is that we do not begin with a positive account of our norms but rather that we begin with a recognition of the violation of a norms(s). Therefore, imminent critique begins with the recognition of a violation of a norm(s). If this is the case, then there can never be a final and definitive or positive account of our norms. A positive account is the height of intellectual error and arrogance. There are several reasons why this is important. First, the origin of law and its inherent norms is shrouded in mystery known only through custom. If the ‘rule of law’ emerges as a norm, then its origin is in the discovery of the violation of some customary practice or privilege. Second, this reinforces the historical importance of events in the history of English law like Magna Carta. These turning points must be initially negative. Third there can be no such thing as a comprehensive positive vision: such as ‘social justice’ or any notion of ‘positive rights’ requiring redistribution. Fourth, any philosophy of law that originates with some positive agenda of what constitutes the human good (Bentham, Enlightenment Project, positivism,30 Raz, Rawls, Dworkin, etc.) commits a fundamental epistemological error and advances a private political agenda disguised as philosophy. Hayek articulates this conception of philosophy in many of his works, but for our purposes it is worth pointing out that he summarizes it in Law Legislation and Liberty (Introduction and Chapter 1). He then proceeds to offer a philosophy of law in that work, an account that can profitably read back into his earlier accounts specifically of the ‘rule of law.’ We shall turn to the details later. A more profound analysis requires the recognition of ‘pragmatics,’ not just semantics. Pragmatics is the study of the relation of language to the users and social context of that language. To analyze language, we must understand social practice. Such practice is not just a natural event but consists of symbolic activities that presuppose agreement on prior norms and our ability to follow rules. There is an intersubjective common-sense world. Individuals acquire a knowledge of what it is and how to act within it during the course of everyday exchanges with each other. The world of science, according to Hayek and Oakeshott, is an abstraction from the common-sense world, and this common-sense world cannot be reduced to, or replaced by, anything else. Wittgenstein31 explained what it meant to follow a rule or apply a rule (e.g., adjudication). To understand a rule is not the same as understanding the truth conditions of the statement of the rule. If this were

36  N. E. NEDZEL AND N. CAPALDI

possible, then total conceptualization (scientism) would be possible. There is no special identifiable mental act of grasping a rule. To recognize when a rule is followed or should be applied is not the same thing as formulating the rule. At each transition in an argument, we are free to reject a specific application. This cannot be formulated or conceptualized in advance. Even the acceptance of an argument or a line of reasoning is itself a new decision not entailed (deducible from) by previous decisions. Even if there are implicit norms in previous practice, no system of rules can contain a meta-principle (Grundnorm in Kelsen and later principles and policies in Dworkin) for the development and application of the rules. Our discourse cannot be understood as the transparent image of an external reality. What makes communication possible is that it is embedded in what we as social agents are doing (practices). All meaning is grounded in social practice.32 The best we can strive for is coherence. Before we do so, it is important to stress why Hayek went to all of this trouble throughout his entire intellectual life. He was especially anxious to focus on the transcendent philosophy we have called ‘scientism.’ Scientism is also known in philosophy proper as positivism (and now some versions of so-called analytic philosophy). Historically, philosophical positivism has a history that can be traced back to the eighteenth-century French philosophes and then in the nineteenth century notably to Comte33 and Marx, and later in the so-called Vienna Circle in the twentieth century. Many of the members of the latter group migrated primarily to the United States in the 1930s and fathered the analytic tradition in the United States. Hayek repeatedly points out that philosophical positivism came to dominate the intellectual world in nineteenth-century Germany and everywhere in the twentieth century. One of the consequences of philosophical positivism was legal positivism. We shall say more later because the expression ‘legal positivism’ has taken on several meanings. In Hayek’s account, the prominent representative of legal positivism in the twentieth century is Hans Kelsen (born in Austria, wrote in German, carried on an important debate with Carl Schmitt about Nazi Germany before moving to the United States).34 As we shall see, Hayek maintains that positivism in general and legal positivism in particular ultimately obfuscate the meaning and history of law and undermine the ‘rule of law’ by promoting socialism and ultimately totalitarianism. The essence of Hayek’s argument that positivism

2  SPONTANEOUS ORDER 

37

leads to socialism is that positivism makes political power the source and legitimacy of law. Positivism and later analytic philosophy of law believe that we can transcend the past and construct an ideal form of legislation and social order. Continental legal codes believe much the same. If that power is a social democracy (one that does not recognize the autonomous status of individuals), then socialism is the outcome. One can also argue that this is no different from the views of Justinian (the emperor is above the law) or of Bentham. All of this will be discussed at length below. In the meantime, it is worth noting that we shall also argue that the major figures in twentieth-century analytic philosophy of law (Hart, Dworkin, Raz, and Rawls) reflect some version(s) of democratic socialism in general and specifically either ignore, minimize, or reject the importance of what Hayek and Oakeshott understand as the ‘rule of law.’

Philosophical Positivism (Logical Positivism, Logical Empiricism, Vienna Circle)35 and Legal Positivism Philosophical positivism is based upon scientism. Scientism encompasses the following: 1. Everything that is true is related to everything else that is true so that it forms a system that can be conceptualized. 2. The system can be expressed as a deductive one, reducible in principle, to one basic axiom. 3. All meaningful discourse could eventually be reduced to a logical or syntactical structure. 4. Physical science is the whole truth about everything. Individual human agency cannot be autonomous and is ultimately reducible to something else. 5. All sciences are ultimately reducible to physical science. 6. The truths of the various sciences are in principle directly or indirectly confirmable by our experience. 7. If there are other meaningful statements but their meaning is neither true nor false (e.g., statements of value or norms of any kind) then the meaning can be explained by or reducible to something else (e.g., psychological or sociological or biological statements) which does meet scientific criteria.36

38  N. E. NEDZEL AND N. CAPALDI

This view stretches back to the French philosophes and has both an intellectual aim to develop social science and a practical aim to produce from the former a social technology. One version of this view understood science to imply that all meaningful statements must be empirically confirmable or logical tautologies (true by definition). It was also maintained (influentially by Hempel) that a valid explanation must ultimately be a deduction from first principles. This came to be known in the Vienna Circle37 as logical positivism. Positivism was not simply a twentieth-century reflection of the importance of science. Positivism existed in the nineteenth century, famously in the works of Comte38 (who coined the term) and Marx. The latter emerged from the eighteenth-century French intellectual movement called the Enlightenment Project. It is during the modern period going back at least to Descartes and Bacon that the success of physical science promised the possibility of economic growth. This led to an emphasis on more positive accounts of human flourishing in this world.39 This in turn generated the idea of an abstract positive conception of the human good. Rousseau was the first to assert the alleged fundamental goodness of human nature. Bentham (more appreciated in France than in England) is a primary example of someone who asserts that science can establish a positive account of human flourishing. This also underscores the difference between the US founders Declaration of Independence and the Constitution with its Anglo-derived negative conception of rights and a focus on avoiding abuse as opposed to the various French Constitutions with their insistence upon abstract positive rights. As we shall see, there is a conception of the ‘rule of law’ that is inherent in the AngloAmerican legal systems that sharply differentiates it from Continental legal systems. It is also the rejection of scientism that is reflected in Hayek’s critique of constructivism and in Oakeshott’s critique of rationalism in politics. Some scholars point out that members of the circle did not always agree and that their thinking evolved into several variants.40 Nevertheless, for our purposes, it is worth noting that the heyday of the Circle 1928–1934 coincided with an important period in Hayek’s own philosophical development in Vienna, that the Circle published a Manifesto in 1929,41 that the Circle had a left wing (Carnap, Neurath, and Reichenbach), that the manifesto explicitly asserts that the scientific worldview was intended to influence ‘the forms of personal and public life, in education, upbringing, architecture, and the shaping of economic and social life.’42

2  SPONTANEOUS ORDER 

39

For positivists, normative statements (statements of value or assertions of goodness and evil) are not empirically true statements. Normative statements, at best, are expressions of subjective or intersubjective preferences. Hence, all traditional sources of moral authority (including traditional practices or custom) are illegitimate. One such traditional source is Christianity, but Christianity depends upon a theology of natural law. Statements about God or religion are not empirically true and hence may be dismissed. Other versions of natural law theory (including secular ones) presume that there is a naturalistic universal human telos as opposed to a theologically based one, that is, that there are ends already built into human nature, and these so-called ends are the empirical basis of all meaningful norms. Philosophical positivism rejects teleology as incompatible with modern science. In their initial enthusiasm to debunk all traditional sources of authority, and consistent with the denial of teleology, positivists maintained that norms or statements of value were meaningless (in their jargon ‘ought’ cannot be deduced from ‘is’).43 This, of course, throws out the proverbial baby with the bathwater—how would positivists justify their own political agenda? Subsequently, various attempts were introduced to show how norms somehow ‘floated’ on a bed of facts.44 In the case of law, the real agenda of legal positivism in both Kelsen and Hart was to insist that all valid law depended upon a specific political base. As ‘scientific’ analysts of the law, they did not feel any intellectual obligation to discuss the political base openly. An alternative would be a traditional source of evolving norms embedded in prior practices (Hayek’s and Oakeshott’s favored position). However, these implicit norms do not form a deductive system and they are not based upon a scientifically unassailable theoretical foundation. Hayek’s counter-argument that science itself rests upon inherent norms of practice is dismissed because (from inside the positivist mind-set) it is not a scientific argument! So, in the end, we have an argument about conflicting views of science. Hayek called attention to this in his 1974 Nobel Prize acceptance speech entitled ‘The Pretense of Knowledge.’45 This meta-argument about science cannot be won outright by positivists because they cannot establish that their philosophy of science meets their own criterion of a good explanation! In other words, there is no empirical confirmation of their philosophy of science (Kuhn’s work on the history of science further reinforces this failure). There are further permutations of the argument, but none establishes the correctness of the positivist philosophical position.46

40  N. E. NEDZEL AND N. CAPALDI

Nevertheless, the philosophical positivists achieved intellectual and cultural dominance despite the inadequacy of their position. Why and how is a story beyond the scope of this book.47 During this period, Hayek was a voice in the wilderness, described by one writer as one of those ‘dinosaurs that still occasionally stalk on the scene, apparently impervious to natural selection.’48 So how does this intellectual dominance lead to legal positivism? There are norms, including legal ones, but they merely reflect intersubjective preference. The Enlightenment Project assumption behind positivism (and later analytic philosophy) is that preferences reflect more fundamental truths about human psychology or biology, etc. The latter alleged truths are exactly that, truths of some kind. Presumably, once we access these truths in alleged scientific fashion and once everyone is educated to recognize these truths, then intersubjective preferences on one level are explainable (and correctable) by reference to the underling objective scientific truths about human beings. Theoretically, and on the assumption that these truths are indicative of a collective harmony, we can generate a democratic consensus on public policy. Moreover, there is no limit on what positive agenda can inform public policy (hence the allure of democratic socialism). We do not have to commit ourselves to the present articulation of these truths. It is enough to recognize their temporarily hidden existence. To do so is to achieve moral ascendancy in the present intellectual climate. It is, in the present vernacular, a form of virtue signaling. The preferences can become scientifically validated if they form a deductive system that rests upon a fundamental norm that itself reflects a collective social good (Kelsen’s Grundnorm as a version of a Rousseuaean ‘General Will’). This is why it is so important to those committed to scientism that education be public and controlled by the experts. Finally, it is the dominance and success of this set of scientistic philosophical preconceptions that explains why the term ‘law’ evolves into its contemporary meaning that it is the exclusive conscious product of deliberation by those in authority.49 From Hayek’s point of view, the intelligibility of norms rests upon an evolving but customary practice. Such norms cannot be wholly conceptualized, cannot be understood as forming a neat deductive system, and they are not a reflection of any collective good that is theoretically specifiable. In his discussion of constitutions, Hayek applauds the US notion, not the Continental version, that the purpose of a constitution is ‘conceived as a protection of the people against all arbitrary action, on the

2  SPONTANEOUS ORDER 

41

part of the legislature as well as the other branches of government.’50 Moreover, ‘constitutions are based on, or presupposed, an underlying agreement on more fundamental principles – principles which may never have been explicitly expressed, yet which make possible and precede the consent and the written fundamental laws.’51 These norms are embedded in practice (a la Wittgenstein) before the practitioners even understand or articulate them.52 This is not only true of law, but it is also true of a market economy. Socialism in all its forms eventually leads to totalitarianism, it undermines any legal system by politicizing it, and it most especially will undermine the ‘rule of law’ that Hayek found in the Anglo-American legal inheritance.

Philosophical Positivism and Analytic Philosophy In the 1950s, positivism came under severe attack. In the ‘Two Dogmas of Empiricism,’ Quine undermined traditional empiricism by asserting (a) that there is nothing independent of different conceptual schemes (ontological relativism) and (b) that different conceptual schemes are alternative readings of experience.53 The significance of Kuhn’s work The Structure of Scientific Revolutions (1962) is that it used the history of science to further discredit the original positivist conception of scientific theories as experimentally confirmable or dis-confirmable.54 As Kuhn showed, scientists operate with paradigms, understood as a framework of background assumptions, which structure the way in which experiments are interpreted. Kuhn’s work was followed by the more radical views of Feyerabend who extended Kuhn’s thesis in Against Method55 to argue that paradigms were more than just frameworks within science. Paradigms constituted the entire cultural pre-theoretical context within which theoretical science operated. Science could not, therefore, serve as the arbiter among competing paradigms or pre-theoretical contexts.56 Instead of jettisoning scientism, philosophers sought to obtain a deeper understanding of science. This continuing commitment to scientism was now called ‘analytic philosophy.’57 In a later chapter, we shall discuss the new version of scientism that permeates analytic philosophy of law. We have argued above that any form of scientism is monistic and holistic. That is, analytic philosophy like its positivist ancestors leads to socialism,58 just as Hayek had argued. This has important implications for the teaching and practice of law and legal scholarship.

42  N. E. NEDZEL AND N. CAPALDI

There are two reasons for this. A commitment to scientism, the reigning philosophical doctrine in the intellectual world, has a close relationship with a powerful and highly centralized role for government experts. If everything is in principle explainable, then everything is related to everything else. If everything (and everybody) is related to everything (and everybody) else then individual human beings cannot be understood apart from their social interaction. The social interaction is then intrinsic to being human. Human beings cannot be understood as autonomous individuals. The social defines the individual.59 Moreover, once we come to understand how everything works then we can predict and control, in fact ought to control, the social world for its sake and benefit. Some form of socialism is logically connected with scientism. On purely intellectual grounds, assuming the truth of scientism, socialism is the correct social/political/legal position.60 Given the foregoing, if the rule of law is to have any meaning then it cannot mean more than some formalistic (consistency) limitation on government (Raz). To argue as Hayek and Oakeshott do that the rule of law requires a civil association that maximizes individual liberty is to argue for something that is unacceptable to the vast majority of the intellectual community. Thus, it is no surprise that Hayek and Oakeshott have been marginalized by and ignored in much of the scholarly literature. In opposition to the mainstream, Hayek and Oakeshott would insist that social practice is not a natural event subject to scientific analysis but a symbolic event that relies upon prior tacit agreements. The meaning of a practice is not independent of how agents involved in the practice perceive or understand the practice. The agents’ understanding itself is not explicable at some other level by reference to objects independent of the agents’ understanding/attitude toward even those objects/entities (psychological, biological, etc.), ad infinitum. You can never escape from some prior agreed-upon context. How does all of the preceding relate to the fundamental theses of this book? Precisely because there are different understandings of their prior agreed-upon context and precisely because these prior sociohistorical contexts have been different, the Anglo-American legal inheritance is different from the Continental European legal inheritance. That is why there has been a specific meaning to the concept of the ‘rule of law’ in the Anglo-American legal context that differs significantly from the meaning of the concept of ‘rule through law’ in the Continental legal world. Moreover, it is the growth and dominance of an intellectual

2  SPONTANEOUS ORDER 

43

movement, namely scientism, first as positivism and then as analytic philosophy, that has inspired a backlash (Hayek and Oakeshott would contend an abandonment of) against the notion of the ‘rule of law’ as Dicey, Hayek, and Oakeshott have explained it, and the reduction of Fuller’s insights (by Raz for example) to a kind of formalism. Precisely because so many legal scholars even in the Anglo-American law think that the ‘rule of law’ is a mere formality that they and many of their European counterparts see no difference between the two legal systems. This also explains why some legal theorists such as Loughlin have gone so far as to advocate that the Anglo-American legal tradition should rejoin what they perceive as the fundamental or mainline legal narrative of Continental Europe.

Norms Norms come already embedded in prior practice. Prior practice reflects spontaneous order and not planned order. Since the original order was not planned, it does not contain self-conscious positive goals. Over time, we become conscious of the norms only because of conflicts, either conflicts over which norm applies in a given case or the realization that two norms which developed independently in different practices conflict in a novel situation. This tells us a number of things. First, our initial awareness of norms is negative—that is, someone is alleged to be engaging in the practice but not in the correct fashion. A good example of this is the Ten Commandments which primarily tell you what not to do. Second, since critique is immanent there will inevitably be conflicting understandings, that is moral pluralism. Third, there is no Archimedean position from which to resolve the disputes. Fourth, law, in particular, functions to minimize conflict. Minimizing conflict as opposed to promoting a specific form of the good life in the face of moral pluralism has greater survival value. Hayek’s approval of his friend Popper’s principle of falsification (namely, we do not prove a scientific theory but construct experiments to disprove it) is an analogue to this. Real science, for Hayek, does not prove truths but tests their usefulness on a given occasion.

44  N. E. NEDZEL AND N. CAPALDI

Fifth, Hayek’s sympathy for the common law is consistent with this approach. Sixth, this reinforces why universalizability is an important necessary (but not sufficient) condition for a rule.61 It is not surprising that courts are reluctant to enforce positive duties.

Common Misunderstandings of SO (Spontaneous Order) IS SO True? This is asking the wrong question. The relevant question is whether this is a correct or the right account. We are describing a practice, and the description has to accord with what other practitioners understand. There is no referent outside of the agents involved. Question begging: Spontaneous order merely seems to mean that we can give a historical account of specific events but that the history only goes back so far, reveals no overall pattern, no future purpose, and cannot explain what is responsible for spontaneous order.

Yes, that is a correct account of what Oakeshott said in his discussion of history. Understanding implicit in conduct is not a theoretical understanding. The theoretical understanding of a substantive event, action, or utterance is a historical understanding, that is, by reference to its antecedent.62 ‘Historians “construct” an account of the past, the truth of which was dependent on the internal “coherence” of the inferences they had made from evidence.’63 Historical understanding is a ‘world of ideas’ undergoing perpetual transformation in the search for ever greater coherence. No practical or scientific implications follow from this. History is not inferior to philosophy; philosophy questions its own conditions and therefore cannot achieve the conditional understanding available to history.64 In the end, so to speak, the ultimate form of explanation for human conduct is historical and not scientific.65 To expect or demand more is to presuppose that what is true of a part (we can explain it) is true of the whole (in which case the presupposition might be a logical fallacy) or that there is a whole. What would a whole be like (Hegelian Mind, or Absolute Idealism, or Nietzsche’s eternal return or Einstein’s ‘infinite’ universe—does anyone really understand what a ‘whole’ is? Please explain!)?

2  SPONTANEOUS ORDER 

45

Trivialization: All change obviously evolves out of past practice, so SO is a trivial thesis.

To begin with, if it is trivial in the sense of being obvious, then is it not remarkable that someone(s) (Polanyi, Wittgenstein, Hayek, Oakeshott) had to point out or remind us of something so obvious as SO? To some extent, this exemplifies the Hayek-Oakeshott thesis that we have lost our way. We need to remind ourselves periodically of Hume’s point that philosophy is common life reconfigured. Neither is it trivial. What Hayek and Oakeshott oppose is the notion that past practice can be completely jettisoned in favor of a new and timeless wholly rational reconstruction. SO is not a theory like the Ptolemaic geocentric theory that can be jettisoned in favor of the Copernican heliocentric view. Nor can SO be revised by appeal to a hidden (biological, social, economic, historic, etc.) structure. Not only is this dangerous but it is also intellectually dishonest because it is impossible to do so. It is precisely because our present intellectual predicament has been distorted by positivism (scientism) that it is necessary to remind ourselves about SO. There is a highly significant difference between trying to achieve coherence in our practice and believing that the past can be totally jettisoned in favor of timeless and universal truths newly vouchsafed. Fatalism: SO moves according to its own inner dynamic and is therefore outside of human response. We are seemingly trapped within our inherited order.

No, this is not the case. SO is not a transcendent entity existing outside of human practice. To believe so is to ascribe transcendent status to SO when transcendent status is something the intelligibility of which both Hayek and Oakeshott deny. Once we are aware of our inheritance66 (e.g., the English language) we are certainly capable of adjusting it. This is why Oakeshott describes custom as a fertile source of adaptation.67 We can, for example, even supplement customary law with legislation. What Hayek and Oakeshott oppose is the notion that the SO has a fixed structure that we can somehow grasp and therefore can anticipate all of its future permutations. There is no transcendent teleology to the spontaneous order, no internal algorithm. Many legal theorists in the Continental civilian legal world believe that codes can be revised or that the purpose

46  N. E. NEDZEL AND N. CAPALDI

of periodic revision is to anticipate all or most future contingencies. This belies our experience in which two or more independent and perfectly functioning norms which have worked simultaneously well in the past suddenly confront novel circumstances or circumstances that no one could have anticipated. Relativism: If SO is merely an empirical fact, and if SO gives rise to different cultures and therefore different moral frameworks, then no moral framework is objectively (transcendently) true. If the latter is the case, then there is no such thing as the right thing to do.

SO is certainly a source of multiple normative inheritances and in fact can generate competing interpretations within a single framework. Rather than showing that we can never truly do the right thing what it reflects is moral pluralism—not the absence of morality. Moreover, some inheritances provide institutional ways of dealing with this pluralism, e.g., ‘the rule of law.’ Another version of this charge of relativism is the claim that we are forever engaged in making expedient decisions and can never appeal to principles. If by appeal to principle one means an appeal to transcendent principle then Hayek and Oakeshott would certainly agree, but they would also charge that transcendent principles are chimera. We are always free to articulate ‘principles’ as long as we understand that this is an exercise in abbreviation. The existence of conflict, of disagreement, and the absence of transcendent principles is an argument in favor of the ‘rule of law’ as understood by Hayek and Oakeshott. Conservative: SO commits us to preserving the status quo and can therefore never give rise to the version of a ‘liberal’ society that Hayek and Oakeshott seemingly endorse.

This objection confuses two different conceptions of ‘conservatism.’ The status quo at any one point in time is a product of SO, but it cannot be construed as a closed system that can be expressed as a deductive system entailing all future permutations. Oakeshott’s distinction between a tradition (rigid structure) and an inheritance (dynamic) helps us to clarify that SO produces an inheritance. What distinguishes us from animals is that we are free to choose how we interpret experience. The human predicament is characterized by the ordeal of having to create

2  SPONTANEOUS ORDER 

47

ourselves continually and our understanding of the world based on our experience of it. The way in which this task is accomplished is through learning. Our imagination and our intelligence are the faculties used in defining ourselves as individuals and in giving meaning to our experience of the world we inhabit; this engagement is called learning and is the source of our humanity. Liberal Learning is the ordering of our experience in imagination; it is what makes us unique individuals. One of the most important ways in which we learn to utilize our imagination is in reconstructing the thought of another person or culture. Through this process, we subsequently learn to find our own voice. It is only through interaction with our cultural inheritance that we become who we are. Our cultural inheritance is a set of achievements and practices, not a doctrine to be learned. The content of an inheritance can only be conveyed in the form of meanings. The inheritance is recreated through its appropriation. SO is conservative in a philosophical sense, not a content political sense. Conservatism ‘denotes a hostility to radical social change that is instituted by the force of the state and justified by an appeal to abstract rights or to some utopian aim.’68 The social order that preserves the rule of law and which Hayek and Oakeshott defend is itself the product, as we shall see, of a specific SO. What they oppose are both the enemies of that order and some of the friends who seek to defend it through misguided appeals to transcendent philosophy. Some of the so-called friends like to point out how the concept of SO has resonances in physical science (e.g., crystal formation, Darwinian biology, etc.), a kind of move designed to move SO in the transcendent direction. What they forget is Hayek’s continued insistence that the idea, not the expression, of SO was articulated originally in a social context. Neither Hayek nor Oakeshott wants to stray from the position that how we understand ourselves is fundamental and how we understand the world is derivative. Non-transportable: If every culture is a product of spontaneous order then how, for example, could knowledge of and adoption of the AngloAmerican conception of the ‘rule of law’ occur in other cultures?

Since cultures have a multiplicity of past practices, it is always possible that one of the practices malfunctions in its own terms or conflicts with another in the same culture. For example, suppose a culture

48  N. E. NEDZEL AND N. CAPALDI

has economic efficiency or economic growth as one of its objectives. Suppose further that the members of the culture see a conflict between their present legal system and that objective of economic growth. One of the things they can consider is modifying the legal system (in part at least) by adopting—and adapting to their own culture—some legal practices from outside. Later, we shall instance this. This is not easy and has other rippling repercussions, but it has been done throughout recorded human history. Perhaps the most edifying example of this is the fact that ‘English’ is now almost everyone’s second language. Normatively vacuous: SO is a natural process, and therefore, any attempt to draw normative conclusions from it commits the alleged fallacy of deriving ‘ought’ from ‘is.’ Moreover, there is no objective perspective from which we can declare that the norms generated by SO are legitimate, nor is there any way to justify preference for the SO of one society as opposed to another.

This objection is nothing but a series of restatements of transcendent philosophy. To begin with, it is not necessary to defend a position against transcendent philosophy because the latter is inherently unintelligible, inefficacious, and generates irresolvable conflict. To engage in transcendent philosophy (our terminology) is itself a distorted practice, one in which some philosophers have attributed to philosophy the claims of religious practice. In the spirit of Hayek and Oakeshott, one can refuse to take transcendent philosophy (like perpetual motion) seriously until it presents a working model. On the contrary, we do not draw normative conclusions from SO. Norms are inherent in the practices of SO. Hayek, for instance, does not draw norms from the SO, rather he shows how the norm of the ‘rule of law’ emerged within a specific set of practices in a specific culture. It is not SO that is the norm; the ‘rule of law’ is the norm. In the next few chapters, we shall show when, where, and how that norm evolved. The very idea of standing outside of all cultural frameworks and judging which is legitimate is nonsensical. How then do we deal with cross-cultural conflict? Before we can even raise the question of how to deal with inter-cultural conflict, we must first understand our own culture and how it deals with intra-cultural conflict. In the Anglo-American world, we do so by acknowledging moral pluralism, practicing toleration, social and political institutions (e.g., periodic elections, diplomacy) and managing (not eliminating) conflict

2  SPONTANEOUS ORDER 

49

through legal practices like the ‘rule of law.’ Will this guarantee the elimination of all present and future potential conflict? The answer is no. We cannot even guarantee that it will work within Anglo-American cultures. This is not a shortcoming of SO, and this does not delegitimize the Anglo-American conception of the rule of law except by reference to an indefensible transcendent position. Welcome to the human predicament!

Summary Spontaneous order is the awareness that practice always precedes theory. Theory, at best, is the explication of practice, most especially the inherent norms. There is therefore no mystery about the origin or justification of norms. There cannot be a theory (external or transcendent explanation) of how practice and theory are related, i.e., no metatheory or super-theory that supersedes all previous practice. Total conceptualization or conceptualization (theory) of the pre-conceptual (practice) is impossible. Ongoing revision of practice is immanent. There is no final and definitive revision and reformulation. When two or more independent spontaneous inheritances meet or confront one another there is no theory or independent perspective from which to judge or predict future permutations. Each inheritance needs to decide based on its own internal resources how to respond. There is no a priori limit on what form that response might take (annihilation, imposition, coexistence, or absorption, total or partial).

Notes

1.  The expression ‘spontaneous order’ was borrowed by Hayek from Michael Polanyi (1891–1976), Hungarian scientist, economist, and philosopher. In 1933, Polanyi left Germany for England where he became a citizen. Like Hayek, he criticized positivism both for its false view of physical science and for undermining our cultural institutions. Polanyi developed the concept of ‘spontaneous order’ to critique central planning. In Personal Knowledge (1958), Polanyi developed an anti-realist epistemology in which the language of science is parasitic upon the everyday practical world. Human thought and action are not purely natural events but events relying upon tacit social agreements. The meaning of the events is dependent of how the agents involved in those events perceive or understand the events. The agents’ understanding of the events is not explicable at some other level by reference to objects independent of

50  N. E. NEDZEL AND N. CAPALDI













the agents’ attitudes toward those objects. In The Logic of Liberty (1951), Polanyi argued that science is a spontaneous order that arises as a consequence of free and competitive debate. Cooperation among scientists is analogous to the way buyers and sellers coordinate themselves in a market. This self-coordination produces an unpremeditated outcome. Any attempt to organize the debate under a single authority would eliminate independent initiatives. 2. Hayek (1967, p. 27). 3. Sometimes epistemological realists triumphantly announce that supporters of spontaneous order cannot prove that there is no objective cosmic order. In doing so, they merely repeat their own position and try to hold an alternative view to their standards rather than understand the alternative’s own. This more than anything else displays how some can become trapped within their own paradigm. The important question is ‘do we agree (social act) on the practice?’ 4. In addition to Hayek and Oakeshott, scientism was attacked by Polanyi as a form of ‘objectivism’ and by Hayek’s friend Eric Voegelin (1948). 5.  See Carothers (2006) for a detailed exposition of that failure. The other dimension of the failure was a lack of clarity on what the ‘rule of law’ means beyond such things as law and order and the absence of corruption. 6. See Nedzel (2010) comparing the failure of World Bank-funded independent judiciary efforts in Venezuela with Chile’s successful changes to its criminal justice system. Chile also managed, not unsurprisingly, to establish an inviolable constitution and to create successfully a market economy. 7. An excellent and even more detailed account of how law can be a product of convention, and with specific reference to the rule of law, see Noel B. Reynolds (1989). 8. Barden and Murphy (2010, pp. 261–267). We are not attributing our positions to Barden and Murphy. 9. Oakeshott (1996). 10. See Eric Voegelin (1951), a close friend of Hayek, for the view that even philosophy is ultimately unsatisfactory and that some form of religious inspiration is essential. This explains in part the failure of philosophy to become a popular force like religion. At the same time, Voegelin is famous for his thesis that gnosticism, a perversion of Christianity, is both the claim that a spiritual or cognitive elite possesses direct, immediate apprehension or vision of truth without the need for critical reflection and that this has fueled destructive utopian movements throughout subsequent history, including totalitarianism. Scientism is a form of gnosticism.

2  SPONTANEOUS ORDER 

51

11. An Oakeshottean would point out that Plato and Aristotle were understandably projecting one successful practice (geometry for Plato, non-evolutionary biology for Aristotle) into the master practice or theory. No theorist ever begins from scratch; to believe you can start from scratch is an example of misguided rationalism in Oakeshott. 12. The belief that everything can be reduced to a fundamental principle(s) leads to the views that (a) all conflict can be resolved and (b) that politics/ government is or should be rule by administrative experts. Opposed to this is the view that conflict is to be managed (e.g., checks and balances, ‘rule of law’). 13. This is precisely where Anglo-American thought rooted in the British experience diverges sharply in favor of induction and case by case analysis. See next chapter. 14. Later we shall argue that an important break occurred in the 1960s and 1970s. Positivists were happy to abjure serious ethical reflection (as seen in Kelsen and even Hart). The transition from positivism to analytic philosophy’s new version of scientism led to a renewed approach to ethics within the mainstream (Rawls, Dworkin). 15. The French philosophes who embraced scientism (e.g., Turgot) offered a historical account of how science at some time in the future would explain itself; Comte followed by offering a historical account of how we have finally got to the scientific age. History and speculative history, however, are not science. Nor was it possible for scientistically inclined philosophers even to prove that science was progressing. See Capaldi (1998). 16. Rawls assumes that (a) there are significant basic psychological  truths common to all human beings, (b) that these truths are harmonious and therefore teleocratic—as opposed to a Carl Schmitt view of the universe, and (c) when Rawls switched in his later work to an ‘overlapping consensus’ he still presumed something teleocratic. Whereas in Oakeshott, civil association and moral pluralism do not have to be teleocratic. 17. Oakeshott (1991, pp. 5–11). 18.  Oakeshott is adamant in maintaining that there can be no theoretical account of the relation between theory and practice, only a historical account. The social sciences suffer from ‘a radical confusion between the scientific and the historical mode of thinking’ (Oakeshott 1991, p. 178). In Oakeshott, we find ‘a rejection of all realist, Rationalist, positivist, transcendental or reductionist views of history’ (Grant 1990, p. 99). History is not inferior to philosophy; philosophy questions its own conditions and therefore cannot achieve the conditional understanding available to history (1975, p. 11). The understanding implicit in conduct is not a theoretical understanding. Oakeshott was extremely critical of positivist (e.g., Hempel) attempts to provide causal or law-like explanations in history.

52  N. E. NEDZEL AND N. CAPALDI 19. We shall expand this point in Chapter 6. 20. See Pears (1971, p. 183). 21. ‘It was Wittgenstein, in On Certainty, who grasped the significance of Moore’s defense of common sense better than Moore himself’ (Baldwin 1984, p. 135). 22. Wittgenstein’s ‘position has some very unpalatable consequences for anyone of even moderately physicalist tendencies … i.e., understanding is not supervenient on a person’s (internal) physical properties’ (McGinn 1984, p. 113). 23. Hayek (1976, p. 24). 24.  Oakeshott makes a similar critique of Descartes in (1991 essay Rationalism in Politics). 25.  Hayek was among the first to read his cousin Wittgenstein’s Tractatus (1921). Philosophy is not a body of doctrine but an activity. A philosophical work consists essentially of elucidations. Philosophy does not result in philosophical propositions but rather in the clarification of propositions. Without philosophy thoughts are, as it were, cloudy and indistinct: its task is to make them clear and to give them sharp boundaries (Tractatus 4.122). Justifications and explanation does come to an end. This does not mean that there are no reasons for anything. What it means is that these come to an end. Where is that? It is at the existence of language games and the associated forms of life. 26. Hayek (1973, p. 118). 27. Hayek does not claim that survival is the only value or the most important value. Nor does he claim that all conflicts among human beings can be resolved. His starting point is to identify where we are, how we’ve got here, and what challenges we face. He offers no algorithm on what we must do. This is analogous to Oakeshott’s procedure and his description of what happens in public policy argumentation/debate. 28. Hayek (1961, p. 181). There ‘is a bias in favor of  searching for the ideals underlying the changing flux of experience, as only these are thought to give us knowledge of reality – rather than the flux itself being thought of as constituting in itself a real influence upon us; there is also a bias in favour of dealing with forms – rather than with meanings; and, further, there is a bias in favour of what could truthfully be said – rather than upon what could be appropriately done; All these taken together suggest that theoretical knowledge should have primacy over practical knowledge, a bias which is still with us’ (Shotter 1975, p. 74). 29. Hayek (1961, p. 237). 30. We maintain that ‘positivism’ has to be understood historically as a manifestation of the Enlightenment Project, a movement that did assert the existence of a positive account of the human good.

2  SPONTANEOUS ORDER 









53

31. It is interesting to note the extent to which Wittgenstein and Hayek were part of a Continental European tradition stretching back to Dilthey. Dilthey also influences the development of pragmatics in Heidegger, Gadamer, and the hermeneutic tradition. Heidegger argued that the distinction between language (sense, intension) and reality (reference, extension) is derivative from social context. The influence of Dilthey can be seen in the work of Oakeshott. It can be argued that the Wittgensteinian position is also part of the British and American pragmatic intellectual traditions. Unfortunately, the Anglo/American intellectual inheritance, with the exception of Oakeshott, was overwhelmed in the twentieth century by the cultural triumph of scientism and the arrival of the positivists. Still, there is an important difference. Continental philosophers (Heidegger’s relation to Nazism, Habermas to democratic socialism) interpret the social context as an enterprise association, and this is what distinguishes Hayek and Oakeshott from them. 32. ‘Language - I want to say -is a refinement, in the beginning was the deed’ (Wittgenstein 1958, p. 546; 1980, pp. 31, 46). 33.  Comte, following Saint-Simon, argued that thought moved through stages and ended in the ‘positive’ stage where all truth is scientific truth. Hence, all previous human endeavor (including custom) could be explained away and ultimately ignored. It is precisely in this stage that we can have rational administration. J. S. Mill, who originally had befriended Comte, finally broke with what he perceived as Comte’s totalitarianism. In this, Hayek, an admirer of Mill, followed Mill. 34. See Dyzenhaus (1999) and Dyzenhaus and Poole (2017). 35. It is difficult to find non-partisan accounts of the history of philosophy, especially twentieth-century philosophy, in part because there are conflicting/competing conceptions of what philosophy is. The Stanford Encyclopedia of Philosophy, as well as many other reference works on philosophy, lack entries on ‘philosophy,’ ‘analytic philosophy,’ ‘positivism,’ and ‘logical positivism,’ although there is one on the ‘Vienna Circle.’ Moreover, during the twentieth century it became fashionable in ‘analytic’ circles (e.g., Quine) to distinguish the ‘doing of philosophy’ (high priority and status) from writing on the ‘history of philosophy’ (low status and, really, not philosophy). 36.  Both Kelsen and Hart ultimately used behavioral criteria to identify norms; but other positivists tend to argue that there are ‘deeper’ empirically verifiable universal human needs behind the behavior. 37. As its name implies, the circle consisted of a group of philosophers in Vienna, under the leadership of Rudolf Carnap. 38. See Hayek’s (2018) critique of Comte in Chapters 12 through 17.

54  N. E. NEDZEL AND N. CAPALDI 39. See Becker (1962, Chapter Four), for an exposition of the position that the dream of a technological utopia is the common inheritance of liberals, socialists, and Marxists. 40. Philosophical positivism encouraged some historical work on the history of science, notably Thomas Kuhn. As a result of the work of Kuhn and many others, it became increasingly embarrassing to defend the original positions of the Vienna circle. Nevertheless, the overall agenda (from science to public policy) survives and in later variants such as analytic philosophy that still reflect the agenda. Even some later philosophers nourished in this tradition who became its highly respected critics (e.g., Richard Rorty) still maintain the political position without the original intellectual framework of scientism. 41. Wissenschaftliche Weltauffassung. Der Wiener Kreis, 1929. English translation The Scientific Conception of the World. 42. Sahotra (1996, pp. 321–340). The most programmatic member of the Vienna Circle, Otto Neurath, was actively involved in the Social Democratic Party in Bavaria. He articulated in unequivocal fashion the utopian goals of social engineering. After seeing the fruits of central economic planning during wartime (World War I), Neurath argued that market economies would be replaced by a communal economy: “In a socialized economy the living standards and wages of everybody will be fixed by … decrees … they will not be decided by contract … “Through War Economy to Economy in Kind” (1973, p. 140). According to Anders Wedberg (1984, vol. 3, p. 222), the ideas of Otto Neurath inspired Carnap who asserted ‘that the great problems of the organization of the economy and the organization of the world at the present time, in the era of industrialization, cannot possibly be solved by the “interplay of forces”, but require rational planning. For the organization of [the] economy this means socialism in some form; for the organization of the world it means a gradual development towards a world government’ (1963, p. 83). Another positivist who shared Neurath’s enthusiasm for planning was Hans Reichenbach, who had been a leader of the Socialist Youth Movement in Germany. In his book, The Rise of Scientific Philosophy (1951, p. 7), Reichenbach praised Marx for advocating the application of science to the social world. Reichenbach (1951, pp. 292–302) maintained that social democracy was the form of government most compatible with relativism. 43. Hume’s Treatise is the alleged first articulation of this claim. However, see N. Capaldi (1966) for a rebuttal of this attribution and for an account of how Hume understands norms in a manner that anticipates Hayek. For a similar argument, see D. Livingston (1984). It is important to stress both the extent of positivistic misrepresentation of the history of philosophy and the position of historically significant figures and the extent to which positivists read their own agenda selectively back into the past. This is one

2  SPONTANEOUS ORDER 

55

of the philosophical errors about, and the misrepresentation of, history against which Oakeshott argued strenuously. 44. This is not unlike Cartesian attempts to relate mind to body, and equally unsuccessful or question begging. 45. Hayek (1978). 46. See Capaldi (1998, chapter 2). 47. Positivism played a significant role in allowing those who objected to traditional sources of moral authority to use positivism as a stick with which to beat those traditional sources and institutions. 48. Anthony Quinton (1967, p. 2). With regard to the discussion of the ‘rule of law’ it is useful to note that Hayek’s works during the period dominated by philosophical positivism consisted of the Road to Serfdom (1944), Cairo Lecture (1955), and The Constitution of Liberty (1962). When Hayek returned to the topic in the 1970s, he acknowledged the work of Hart, Fuller, Rawls, Dworkin, and Oakeshott. Only Oakeshott, Fuller, and Raz (just the 1962 publication and for negative purposes) acknowledged Hayek. 49. Hayek (1961, p. 207; 1973, p. 136). 50. Hayek (1961, p. 178). 51. Hayek (1961, p. 181). 52.  This epistemological point is sometimes misleading characterized in American jurisprudence as ‘original intent.’ 53. Quine (1953). 54. T. Kuhn (1970). 55. Feyerabend (1975). 56. A second response to the relativistic implications of Quine, Kuhn and Feyerabend was to embrace relativism. French ‘deconstructionist’ philosophers Michel Foucault and Jacques Derrida did not reject scientism but argued that mathematical science is the best and only defensible ideal construct for thinking. They sought to interpret the implications of the situation to which the scientific ideal has led. Both used the relativism to discredit what they took to be the status quo; Foucault came in time to embrace a kind of individual autonomy whereas Derrida reverted to then current Continental collectivism. 57. Capaldi (1998). 58. Sesardic (2016). Charles Taylor is an interesting example of someone who would agree with almost everything said up to this point. However, Taylor, under the influence of Continental thinkers like Heidegger and Habermas, chooses to interpret the pre-theoretical as a social collectivity, thereby arriving at socialism from a different route. What is important to note is the Continental origin of socialism. We shall insist that it is very difficult for Continental thinkers to stray very far from some sense of the collectivity. What many Continental thinkers and Taylor have done is to hypostatize the social context.

56  N. E. NEDZEL AND N. CAPALDI 59. By analogy, Newton’s atomism and first law of motion are qualified by the second law in which everything influences everything else. Scientific atomism is not the same thing as believing there are autonomous individuals. Autonomous individuals are the basis of science and not vice versa. 60.  It will be pointed out that some so-called analytic philosophers who embrace scientism are not socialists and sometimes even defenders or advocates of classical liberalism. This response presupposes (a) that all of these individuals have actually thought through the coherence of their political convictions with their metaphysics and that (b) where they have done so their thinking is successful. In another context, we would answer that both these presuppositions are false. 61. This is why Kant insists that there are several formulations of the categorical imperative, one of which is that we treat individuals as ends and not only as means. 62. Oakeshott (1975, p. 105). 63. Nardin (2001, p. 77). 64. Oakeshott (1975, p. 11). 65. Oakeshott wrestled all of his life with trying to understand the nature of historical explanation. See his last work On History and Other Essays (1983), which includes the essay ‘On The Rule of Law,’ for his final thoughts. For Hayek on History ([Economica 1952] 2018, p. 127) ‘emphasis was on the singular and unique (individual) character of all historical phenomena which could be understood only genetically as the joint result of many forces working through long stretch of time….among the fathers of this view Edmund Burke …is one of the most important and Adam Smith occupies an honourable place.’ See also (2010) the essay The Historicism of the Scientistic Approach: ‘The kernel of truth in the assertion about the relativity of historical knowledge is that historians will at different times be interested in different objects, but not that they will necessarily hold different views about the same object’ (p. 133). 66. Inheritance is an Oakeshottean term that replaces the more rigid notion of a tradition. 67. Oakeshott published his essay on rationalism in politics in 1947, three years after the 1944 publication of Hayek’s Road to Serfdom. In the essay, Oakeshott attributes to Hayek the view that Hayek is a rationalist because he has a plan or advocacy of certain public policies like a free market economy. Oakeshott never defended or repeated this claim. In retrospect, it has become clear that libertarians have a plan but Hayek is neither a libertarian nor a rationalist. Both Hayek and Oakeshott maintain that the ‘rule of law’ is a necessary condition for a free market economy. 68. Minogue (1967, vols. 1 and 2, p. 195).

2  SPONTANEOUS ORDER 

57

References Baldwin, T. (1984) “Moore’s Rejection of Idealism.” In R. Rorty, J.B. Schneewind, and Q. Skinner (eds.), Philosophy in History. New York: Cambridge University Press, 357–374. Barden, G. and Murphy, T. (2010) Law and Justice in Community. Oxford: Oxford University Press. Becker, C.L. ([1932] 1962) Heavenly City of the Eighteenth Century Philosophers. New York: Yale University Press. Capaldi, N. (1966) “Hume’s Rejection of ‘Ought’ as a Moral Category.” Journal of Philosophy, Vol. 63, pp. 126–137. Capaldi, N. (1998) The Enlightenment Project in the Analytic Conversation. Dordrecht: Kluwer. Carnap, R. (1963) “My Philosophical Development.” In P.A. Schilpp (ed.), The Philosophy of Rudolf Carnap. LaSalle, IL: Open Court. Carothers, T. (ed.). (2006) Promoting the Rule of Law Abroad. New York: Carnegie Endowment for International Peace. Dyzenhaus, D. (ed.). (1999) Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Herman Heller in Weimar. Oxford: Oxford University Press. Dyzenhaus, D. (ed.) and Poole, J. (2017) Law, Liberty, and State: Oakeshott, Hayek, and Schmitt on the Rule of Law. Cambridge: Cambridge University Press. Feyerabend, P. (1975) Against Method. London: New Left Books. Grant, R. (1990) Oakeshott. London: Claridge Press. Hayek, F. (1961) The Constitution of Liberty. Chicago: University of Chicago Press. Hayek, F. (1967) Studies in Philosophy, Politics and Economics. London: Routledge. Hayek, F. (1973) Law, Legislation, and Liberty, Vol. I. Chicago: University of Chicago Press. Hayek, F. (1976) Law, Legislation, and Liberty, Vol. II. Chicago: University of Chicago Press. Hayek, F. (1978) New Studies in Philosophy, Politics, Economics and the History of Ideas. Chicago: University of Chicago Press. Hayek, F. (2018) Studies on the Abuse and Decline of Reason, Vol. 13 of Collected Works (ed.) Caldwell. Chicago: University of Chicago Press. Kuhn, T. ([1962] 1970) The Structure of Scientific Revolutions. Chicago: University of Chicago Press. Second edition with postscript. Livingston, D. (1984) Hume’s Philosophy of Common Life. Chicago: University of Chicago Press. McGinn, C. (1984) Wittgenstein on Meaning. Oxford: Blackwell. Minogue, K. (1967) “Conservatism.” In Paul Edwards (ed.), The Encyclopedia of Philosophy. New York: Collier MacMillan. Nardin, T. (2001) Oakeshott. University Park, PA: Pennsylvania State University.

58  N. E. NEDZEL AND N. CAPALDI Nedzel, N. (2010). “The Rule of Law: Its History and Meaning in Common Law, Civil Law, and Latin American Judicial Systems.” The Richmond Journal of Global Law and Business, Vol. 10, pp. 99–108. Neurath, O. (1973) Empiricism and Sociology. Dordrecht: Reidel. Oakeshott, M. (1975) On Human Conduct. Oxford: Clarendon Press. Oakeshott, M. ([1933] 1991) Experience and Its Modes. Cambridge: Cambridge University Press. Oakeshott, M. (1991) Rationalism in Politics and Other Essays, ed. T. Fuller. Indianapolis: Liberty Press. Oakeshott, M. (1996) Politics of Faith and the Politics of Scepticism, ed. T. Fuller. New Haven: Yale University Press. Pears, D. (1971) Wittgenstein. London: Fontana. Polanyi, M. (1951) The Logic of Liberty. Chicago: University of Chicago Press. Polanyi, M. (1958) Personal Knowledge. Chicago: University of Chicago Press. Quine, V.V.O. (1951) “Two Dogmas of Empiricism.” Philosophical Review, Vol. lx, pp. 20–43. Reprinted in Quine, W.V.O. (1953) From a Logical Point of View. Cambridge, MA: Harvard University Press. Quinton, A. (ed.). (1967) Political Philosophy. Oxford: Oxford University Press. Reichenbach, H. (1951) The Rise of Scientific Philosophy. Berkeley: University of California Press. Reynolds, N.B. (1989) “Law as Convention.” Ratio Juris, Vol. 2, No. 1 (March), pp. 105–120. Sahotra, S. (ed.). (1996) The Emergence of Logical Empiricism: From 1900 to the Vienna Circle. New York: Garland Publishing. Sesardic, N. (2016) When Reason goes on Holiday: Philosophers in Politics. New York: Encounter Books. Shotter, J. (1975) Images of Man in Psychological Research. London: Methuen. Voegelin, E. (1948) “The Origins of Scientism.” Social Research, Vol. 15, No. 4, pp. 462–494. Voegelin, E. (1951) New Science of Politics. Chicago: University of Chicago Press. Wedberg, A. (1984) A History of Philosophy, III (Bolzano to Wittgenstein). Oxford: Clarendon Press. Weiner Kreis. ([1929] 1973) The Scientific Conception of the World. Dordrecht: Reidel. Wittgenstein, L. (1958) Philosophical Investigations. Oxford: Blackwell. Wittgenstein, L. ([1921] 1961) Tractatus-Logico-Philosophicus. New York: Humanities Press. Wittgenstein, L. (1980) Culture and Value. Oxford: Blackwell.

CHAPTER 3

The British Intellectual Inheritance

Introduction1 Anglo-American culture has some well-known unique features. What is not so obvious is the origin, development, and importance of some of those features. Some of those cultural features have given rise to a unique conception of the ‘rule of law.’ We use the term ‘British’ to denote writers who express themselves in ‘English’ and thus can include Scots and Irish. The use of the English language will be a critical feature of the British mind and not merely its lowest common denominator. Our main thesis here is that there is a significant and distinctively British way of thinking that emerged in the first millennium and has been sustained down to the present. Most discussions of the so-called Western Tradition root it in Greece and Rome and rarely mention Britain except for its Roman occupation and then again not until Magna Carta. They blithely fail to mention that there was no Continental counterpart to Magna Carta nor do they raise the question of what led to it or how it might have differed from the Continent. Of course, this does not mean that every British thinker exemplifies the traits we shall identify. Many opposed the way of thinking we are going to single out as British.2 What is important is that there is a continuous inheritance of such thinking that is exemplified in almost all of

© The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4_3

59

60  N. E. NEDZEL AND N. CAPALDI

the most famous and influential British thinkers, a way of thinking and acting that clearly differentiates them from other cultures.3 Before going into details, we want to contrast two conflicting intellectual models, identify one of these as distinctive of the British mind, and then exemplify it. These two intellectual models have been alluded to in the previous chapter. One model, we shall call it objective, asserts that meaning and structure are ultimately external to and independent of humanity. According to this view, humanity’s two tasks are (a) to apprehend that structure through theoretical reason and (b) to conform behavior to that structure. Whatever differences there are between Plato and Aristotle,4 they both understand the world in that way. Roughly, it says that practice should conform to theory. It understands the structure of theory to be a deductive one from which we deduce conclusions to be followed in practice. The first principles of that deduction may be intellectual ideals (a priori to use philosophical terminology) or they may be derived from experience. ‘Experience’ is understood to be revelatory, ultimately and exclusively, of something external to humanity. Even if human beings structure that experience, the principles of structuring reflect something permanent, external to and independent of humanity, and something to which humanity must consistently conform. The objective view can be summarized as follows: 1. There is an objective reality, that is, a structure of meaning independent of humanity. 2. With regard to this reality, we have two tasks: a. apprehend it intellectually, b. conform our behavior to it (reason over will). 3. This reality is a whole in which everything is related to everything else without remainder a. The social world is part of this whole. b. The social world is to be understood in the same way that we understand the physical world. c. The understanding of the physical world is intellectually prior to the understanding of the social world. 4. Once we have grasped it, reality can be expressed deductively from first principle(s). 5. Individuals are to be understood as part of a larger whole.

3  THE BRITISH INTELLECTUAL INHERITANCE 

61

The second model, we shall call it subjective, or more properly intersubjective, asserts that meaning and structure are created by humanity. In this view, humanity’s two tasks are (a) to explicate existing practice and (b) to shape, perhaps transform, the world, physical and social, consistent with what we explicate. Roughly, it says theory follows and clarifies practice. Thinkers in this intellectual tradition find not a world of abstractions, but an indefinite multitude of particulars individuated by human beings for human purposes in their language. Its mode of explanation is inductive, not deductive, and cheerfully accepts the possibility of future reorientations. Its inductive conclusions are remediable recipes for future use. Its language (in this case English) has no authoritative grammar but relies on a social consensus to which individuals acquiesce. This is where we locate the British mind and its intellectual inheritance. The subjective model has been a strong native British intellectual tradition, reflected in its institutions, that is only rarely present in Continental thinkers. Its features are as follows: 1. There is no structure of meaning independent of humanity. 2. With regard to such meaning: a.  We apprehend it in our practice (what ‘we do’ or the ‘pre-theoretical’). b. We transform the world through our practice (will; reason in the service of passion). 3. Reality is not a whole but a collection of distinct individual entities (nominalism) a. The human5 world is sui generis. b. The human world cannot be understood in the same way that we understand the physical world. c. The understanding of the human world is intellectually prior to the understanding of the physical world. 4. Reality can never be reduced to an abstract system of any kind and therefore cannot be expressed deductively from first principle(s). We have already seen the subjective model in the discussion of spontaneous order in the works of Hayek and Oakeshott. Now we shall proceed to examine its pedigree in detail. The English language is itself distinguished by its etymological impurity, the relatively large size of its vocabulary, the large number of its idioms, and the relative simplicity of its grammar. Even its grammar is

62  N. E. NEDZEL AND N. CAPALDI

sparse, and what few rules it contains often reflect the personal bias of classically inspired grammarians. For example, the rule ‘never to end sentences with a preposition’ perhaps makes sense in Latin where it cannot be done but is unhelpful in English. As Churchill famously chided one editor who dared to suggest a revision, ‘that is something up with which I shall not put!’ English philosophers have always emphasized the conventional character of language. It should come as no surprise that the English language reflects a world composed of a multiplicity of entities identified by what English philosophers insisted upon as the conventional character of language. One of the peculiar misfortunes of Continental Eurocentrism is its assumption that everything worthwhile comes from and can be explained in Greco-Roman terms, possibly with a nod to Egypt. On the contrary, English common law cannot be explained without reference to the Anglo-Saxons (Germanic tribes)6 who settled in England in the fifth century—during time immemorial. It is a main historical and philosophical thesis of this book that (a) Germanic—in Tacitus’ sense—thought (analogical) is fundamentally different from Greco-Roman thought (deductive), (b) the Germanic tribes that settled on the Continent of Europe eroded their own original framework and assimilated Greco-Roman thought, but (c) the Anglo-Saxon tribes that settled in England alone preserved many of their traditional ways of thinking (epistemological, political, legal, etc.), and (d) this is the origin of the difference between the common law and the civil law. This also explains the uniqueness of common law’s ‘rule of law.’ Roman historian Tacitus (A.D. 56–117) noted the peculiar qualities of Germanic tribal thought in two works, the Germania (circa 98 A.D., De Origine et situ Germanorum, or Concerning the Origin and Situation of the Germanics) and most especially the Agricola (circa 98 A.D.) specifically on Celtic Britain. In the Germania, Tacitus claimed the government of the Germanic tribes was merit-based and egalitarian, with leadership by example rather than authority.7 He described a governing assembly made up of the free people of the community in public deliberations who collectively made the final decision.8 This form of assembly was introduced into Celtic Britain and survives in the term hustings. In the Agricola, likewise, Tacitus contrasts favorably the liberty of the native Celtic Britons with the tyranny of the Roman Empire. Montesquieu (1689–1755) travelled from his native France to England in order to study the formation of a constitutional monarchy

3  THE BRITISH INTELLECTUAL INHERITANCE 

63

in the wake of the Glorious Revolution (1688–1689). This became the basis of his advocacy of the doctrine of the separation of powers. Following the publication of Considérations sur les causes de la grandeur des Romains et de leur décadence (Considerations on the Causes of the Grandeur and Decadence of the Romans) (1734), his writing of The Spirit of the Laws (published anonymously in 1748) was motivated in part by the desire to see a similar development in France. Unlike Aristotle, Montesquieu distinguished his three forms of government as a republic, a monarchy, and despotism (Bk. 2). Citing Tacitus, he claims that the ‘English have taken their idea of political government from the Germans. This fine system was found in the forests.’9 The Germanic nations who conquered the Roman Empire were very free, as is known. On the subject one has only to see Tacitus on the Mores of the Germans….When they dispersed during the conquest, they could no longer assemble. Nevertheless, the nation had to deliberate on its business as it had done before the conquest; it did so by representatives. Here is the origin of Gothic government among us….it is remarkable that the corruption of a government of a conquering people should have formed the best kind of government men have been able to devise.10

Montesquieu claims that there is an intrinsic connection between this kind of government and commerce: ‘England has always made its political interests give way to the interests of commerce….This is the people in the world who have best known how to take advantage of each of these three great things at the same time: religion, commerce, and liberty.’11 Later in this book, we shall show that the ‘rule of law’ as understood in the Anglo-American legal inheritance is more commerce-friendly and more directly useful to economic development. ‘[T]he laws of the Barbarians were all personal….I find the origin of this in the mores of the Germanic peoples….All these people, taken individually, were free and independent….Therefore, there was a spirit of personal laws among these peoples before they left their homes, and they took it with them in their conquests.’12 In what follows, we shall identify key figures of the British intellectual inheritance. The focus will be mainly on philosophers who provided a broad understanding of how key ideas or features of the inheritance were related: Ockham is the originator, so to speak; Hobbes, Locke, and Hume are the major definers; J. S. Mill is the significant defender

64  N. E. NEDZEL AND N. CAPALDI

of the sanctity of individual liberty in the nineteenth century; Hayek and Oakeshott are the twentieth-century defenders. Others shall be noted as they contribute to the articulation.

Ockham (1285–1349) Alan Macfarlane, British anthropologist and historian, traced the origin of individualism in England to as early as the thirteenth century: ‘Society is constituted of autonomous equal units, namely separate individuals…. It is reflected in the concept of individual property, in the political and legal liberty of the individual…’13 The seminal figure in British thought in the late thirteenth century and early fourteenth century was theologian and philosopher William of Ockham. Why Ockham? Classical objective thought as exemplified by Plato and Aristotle reached its zenith in the thirteenth century; it then cracked with the rise of nominalism as expressed in Ockham.14 Ockham articulated the three major features of the British intellectual inheritance: nominalism, induction, and individualism. It is worth noting that the English language is the only one in which the first person singular (“I”) is always capitalized. This came into fashion in the thirteenth century. It is difficult to overstate the importance of what Ockham did both philosophically and for the central role of individual autonomy. The nominalists ‘began to separate “culture” from “nature”.’15 How we understand ourselves is fundamental; how we understand the world is derivative: Human beings are created in God’s image and therefore share in His free will. As we pointed out in the previous chapter, transcendent philosophy or ‘philosophical “realism” fosters the illusion of a corporate human mind.’16 Fast forward to the Copernican Revolution in which we find that the freedom of the individual is the basic presupposition and in which the projection of order by the imagination of human beings is foundational and the result is the autonomous individual and the imaginative reconstruction of spontaneous order. According to Ockham, the classical philosophy of Plato and Aristotle cannot possibly explicate our fundamental religious convictions as they preexisted Christ. Theology must therefore be separated from such philosophy. Moreover, whatever knowledge we have is of singular individual things and persons but not of abstract universals. To be sure, we employ abstract concepts for the sake of convenience but there is no issue of the relation (other than convention) of our concepts and the

3  THE BRITISH INTELLECTUAL INHERITANCE 

65

abstractions they represent to things. Terms are general, but not things. All real knowledge is inductive and not deductive (Hume, Mill). Logical or necessary truths are purely verbal. Hence, we cannot use them to prove God’s existence. Neither can we use the concept of causation to prove God’s existence, for, as an abstraction, causation is nothing but regular succession (Hume). The Aristotelian contention that there are final causes (teleology) in nature is a form of anthropomorphism, and, in addition, fosters the illusion that there are natural hierarchies in the social world. Belief in God is a matter of revelation and faith. We receive no guidance from abstract reason; guidance comes from authority: in the first instance from the Pope, then from scriptures, and ultimately from inner personal conviction or conscience. Ockham was excommunicated because of his insistence on individual personal conviction—an anti-corporatist view that eventually led to Protestantism.17 ‘[A] corporate conception of society was giving way to the image of society as an association of individuals’18 (Locke). In Ockham, Thomistic natural law gives way to Franciscan natural rights (Hobbes and Locke). Among these are the right to consent to rules and rulers, the right to self-preservation (Hobbes), and the right to private property (which can be renounced but only voluntarily), and the right to a private conscience including the capacity for conscientious mistakes of judgment as long as they are consistent with equality and reciprocity (Mill).

Protestant Reformation The Reformation is a large and complex issue in its own right, even if confined to the British context, but it bears some relevance to our thesis. Protestant Reformers like Luther were influenced by nominalism. Even more to the point, they largely rejected the Aristotelian medieval (Aquinas) conception of Christianity and re-emphasized the Augustinian, more Platonic, version. Whereas Aristotle had stressed (a) the reduction of the moral to the political and (b) emphasized that the role of the state is to make us virtuous, Plato stressed how the moral dimension defined the political. In Augustine, this Platonism translated into (a) what Voegelin called the de-divinization of the state, (b) the assertion that fulfillment comes within the Church and not politics (later secularized as fulfillment coming within private life), and (c) the role of the state is negative—to protect from outside coercion (e.g., criminals, invaders, etc.)—not positive.

66  N. E. NEDZEL AND N. CAPALDI

The evolution of these notions in the English intellectual tradition led gradually to the de-Romanizing of the Anglican Church, subordinating the role of the state to protecting/serving the individual (the negative rights view), that the individual’s relation to God is primary (rise of dissenting sects), to seeing the legal system as a bulwark institution against government overreach (even when democratic), and to thinking that the legal order reflects some inherent norms.

Francis Bacon (1561–1626) Bacon is best known for his insistence that knowledge of the natural world is induction from experience and suggesting that practical knowledge19 is more fundamental than purely theoretical knowledge. He was an opponent of Aristotelian scholasticism, its obsession with a priori deduction, and he opposed the idea of final causes (teleology). His acquaintance with common law cases led him to insist that practical knowledge is not to be confused with speculative hypotheses in theoretical knowledge or scientific theorizing. Confirmation is always inductive. The next chapter will discuss more about Bacon with regard to law.

Thomas Hobbes (1588–1679)20 The much maligned21 Thomas Hobbes was, for a time Bacon’s secretary. Hobbes was a nominalist: Only individual things are real.22 We do not understand individual human beings as mere products of the social world or intelligible only within a collective social whole. Rather, the individual defines the social.23 In his accounts of the individual mind’s cognitive activity,24 he connects understanding with imagination,25 imagination with language, and language with a kind of spontaneous order.26 Like his predecessors Ockham and Bacon, Hobbes rejected the medieval Aristotelian worldview. There are no final causes or telos in nature, only efficient causes. Building on the work of Galileo, motion (not rest) is the natural state. Applied to human beings, there is no equilibrium, no homeostasis, no ultimate fulfillment, only the endless pursuit of desire. Even survival is not a specific substantive goal but the condition for the fulfillment of specific desires. The ‘skepticism and the individualism, which are the foundations of Hobbes’ civil philosophy’ drew on ‘late scholastic nominalism.’27

3  THE BRITISH INTELLECTUAL INHERITANCE 

67

What Hobbes adds to his predecessors is the framework of a social philosophy. Understanding that Hobbes was offering a ‘spontaneous order’ metaphysics and epistemology—although he did not use the expression—clarifies why Hobbes was not an authoritarian and why his ‘state of nature’ was not the origin of his social philosophy but the consequence of not subscribing to Hobbes’ views. Hobbes’ social philosophy is rooted in the civil condition. ‘The creation of language and the establishment of the state are, for Hobbes, inventions of the same character and serve the same end…the necessity of an absolute sovereign in the community…is a necessity exactly paralleled by the necessity of fixing the meanings of names if language is to serve any useful purpose at all…a language which is understood by only a single person28 and a way of behavior which is pursued by one man independently of all other men are, for Hobbes, examples of the same kind of anarchy.’29 Language is constituted by rules, but the rules do not tell you what to say, only how to say it. Language can serve the ends of specific users but has no purpose of its own. Oakeshott’s understanding of the ‘rule of law’, in which the rules do not tell you what to do only how to do it, is the perfect analogue. Neither language, nor the ‘rule of law’, nor the civil condition, nor the state may have an overall goal of its own. It is in this space that we locate human freedom. The social world is not the product of individual selfishness30 but of spontaneous order. The social and the subsequent political world are not natural, i.e., they are not the reflection of a web of teleological relationships. They arise from a spontaneous order of mutual understandings that is both openended and unconditional at the same time. It is open-ended in that each individual pursues his or her own agenda, or voluntarily agreed-upon joint ventures, rather than a collective one. Our allegiance to a political institution(s) or the State is given on the understanding that the state does not pursue some separate goal; its role is to provide for the conditions within which we pursue our private agendas. This is what Oakeshott will later call the ‘civil condition.’31 Already in Hobbes, we see the movement from spontaneous order to the ‘rule of law.’ What Hobbes understood was that peace and order were the necessary or preconditions for the pursuit of all other values. He also surmised, given his nominalism and rejection of the Aristotelian worldview, that the appeal to reason alone could not guarantee a moral consensus. Hence, there must be an ultimate source of authority, but the role of that source was to fashion procedural rules that managed conflict not make it disappear.

68  N. E. NEDZEL AND N. CAPALDI

Isaac Newton (1642–1727) Relative to the British intellectual inheritance, it is noteworthy that Newton’s physics embraced atomism (individual atoms moving in empty space), not a Cartesian (Continental notion) of a plenum (ether) where there is no empty space and everything moves within one whole or collective system. That is, Newton favored explanation that focused on individuals as opposed to explanation that focused on wholes. In addition, following Galileo and Hobbes, Newton opted for motion being the natural state rather than Aristotelian rest. Locke and Hume will make crucial use of this transition.

John Locke (1632–1704)32 Locke was a nominalist (generality is a product of the mind), an inductivist with the typically British distrust of rationalism (knowledge is the product of the accumulation of experiences, and experience does not reflect innate knowledge), and an individualist (personal identity is a construct dependent on memory; society, not just the state, is a construct through contract, and individual members have a kind of veto power with the right of revolution). Specifically, Locke gave an early articulation of the concept of the ‘rule of law,’ a concept which attained extraordinary prominence in seventeenth-century England, though it was not named as such until the nineteenth century. The end of law is, not to abolish or restrain, but to preserve and enlarge freedom … where there is no law there is no freedom. For liberty is to be free from restraint and violence from others … and is not, as we are told, a liberty for every man to do as he lists … 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 be subject of the arbitrary will of another, but freely follow his own.33

Compare this to Hayek: [f]reedom … to have a standing rule to live by, common to every one of that society, … a liberty to follow [one’s] own will in all things, where that rule prescribes not; and not to be subject to the inconstant, uncertain, arbitrary will of another man. … [W]hoever has the legislative or supreme

3  THE BRITISH INTELLECTUAL INHERITANCE 

69

power of any commonwealth is bound to govern by established ­standing laws promulgated and known to the people and not by extemporary decrees. … [Even the legislature has no] absolute arbitrary power, … but is bound to dispense justice, … [while the] supreme executor of the law … has no will, no power, but that of the law. … [The] ultimate aim is to … limit the power and moderate the dominion of every part and member of that society.34

Law as a system of procedural norms serves to minimize conflict, not to achieve a positive end. This is accomplished by appealing to past practice (i.e., the common law) and not to abstract first principles. Past practice is substantiated by historical experience, and that is why Locke and others appeal to their understanding of an historical tradition that stretches back to time immemorial (and the state of nature) in which the struggle of the commons against prerogative is the major theme. One of Locke’s most important achievements, an achievement that instantiated the rule of law, was his essay, A Letter Concerning Toleration (1689). Religiously inspired wars racked the seventeenth century. Those wars exemplified in part what happens when governments make religious beliefs mandatory (enterprise association) for everyone in the same society. Locke formulated the notion of religious toleration as a procedural norm: You can still maintain your personal beliefs and practices (substantive norm), but you need to acquiesce in others doing the same; his argument showed how within most sects of Christianity there were the intellectual resources to accommodate toleration; he excluded only those sects or religions that either, in his estimation, lacked the intellectual resources or refused to accept toleration. This does not end disagreement, but it does manage the conflict in the interests of individual freedom.

Scottish Enlightenment Duncan Forbes pointed out that the originality of Scottish Enlightenment social thought lies in freeing itself from the ‘myth of the Legislator.’35 By this, he meant that there is no official creation of a society or social framework. The origin of social norms is not the result of any conscious intentions or mysterious objective purposes but the unintentional or unintended consequences (spontaneous order) in the actions of individuals directed toward other goals. Society is not a part of a natural order or a conscious original contract (Hume: contract presupposes a

70  N. E. NEDZEL AND N. CAPALDI

prior social context). This requires ongoing conscious explication, renegotiation, abandonment, or reaffirmation. It is made possible by the fact that there is no innate teleology which requires rigid individual goals, and hence, there is no problem of built-in conflict among individuals. There is no original collective or individual goal; the absence of individual teleology removes the barrier of non-negotiable demands. The renegotiation can only be by appeal to the evolving spontaneous order. We cannot step out of the process even when we are self-conscious of it. As Hayek later put it, the ‘Life of man in society … is made possible by individuals acting according to certain rules … the institutions of law … that [have] been as little invented by any one mind as language or money or most of the practices and conventions on which life rests.’36 The myth of original purpose or design gives rise to the myth of a collective goal and eventually to the conscious misguided social technology program of the French Enlightenment Project, which itself leads to a loss of individual autonomy and dis-incentivizes economic development. The difference between Rousseau, on the one hand, and Hume/Smith, on the other, is that the Scots believed that genuine benevolence was limited and cannot be expanded to the whole of society; instead, they emphasized the capacity of individuals to negotiate. They would not have been surprised or offended by the view that the English are viewed as a nation of shopkeepers. Nor would they be surprised that commerce flourished better under such conditions. The first to explicate this process and to initiate a continuous model of social understanding later expounded on by Hayek were a group of Scottish and English thinkers such as Mandeville, Hume, and Smith. It is not surprising that (a) they were among the first to ­understand autonomy because of the inherited nominalism and (b) that they first articulated it within the field of political economy where ongoing negotiation is an obvious feature. Writing style aside, Bernard de Mandeville (1670–1733) the author of Fable of the Bees: Or, Private Vices, Public Benefits (1714), introduced the theme of spontaneous order by insisting that the social good is a product of the individual pursuit of self-interest. Generally speaking, Scottish Enlightenment figures defended the modern market society because it promoted greater individual freedom than the Greek Polis, and it liberated culture in general and individuals in particular from the limitations of Republican theory. In Republican theory, liberty consists in the community not being dependent on the arbitrary will of others. Hobbes replaced the

3  THE BRITISH INTELLECTUAL INHERITANCE 

71

Republican view with the idea that liberty is the absence of arbitrary external constraints on the individual.37 Hobbes and Locke had, of course, already singled out the importance of the individual but they chose to express the resulting social norms in contractual terms—a classical framework (prudentially consistent with a version of Protestant Christianity but still smacking of teleology) but which still (a) raised the unnecessary specter of non-negotiable demands (forcing Hobbes to appear to be an authoritarian and Locke to provide a rationale for revolution) and (b) neglected the priority of spontaneous order. The religiously inspired wars of the seventeenth century had made clear that appeal to a collective good was the greatest social destabilizer. Scottish thinkers such as Hume and Smith thereby had the luxury of appealing to a version of spontaneous order vaguely and innocuously compatible with Deism. Hume, Smith, and others were thus able to obviate having to defend Hobbesian individual autonomy (alleged selfishness) against the charge of social instability. Later thinkers like Hayek and Oakeshott will have the luxury of dismissing any intellectual need to appeal to some form of transcendence. Cooperation is not the result of any planning but from the attempt to achieve individual aims. ‘Norms are the unintentional product of the exchanges which succeed one another.’38 There is no issue of the beginning of society; no issue of how humans enter or establish society; this also explains the dissolution of some societies; there is no derivation of social laws from psychological laws. It is interpersonal not collective; human actions are foreseeable but not predetermined. Order is a process not a fixed fact; there is no problem of social order because there is no social order other than the norms of spontaneous order. Order is a permanent task. Norms change in relation to personal ends. Only individuals act and can agree to act in concert (without prices, economic calculation is impossible). Individuals compose their respective interests without desiring or knowing them. Liberty consists in choice and ­innovation not acceptance. The contractual presupposes the precontractual; but the latter is not a permanent structure, but the inherent evolving norms of previous agreements exhibited by our joint action and its inherent norms. We cannot give a final and definitive account of the inherent norms—they are fertile sources of adaptation (Oakeshott). To anticipate our later argument: Ongoing negotiation presupposes agreement on the pre-negotiation framework. The pre-negotiation

72  N. E. NEDZEL AND N. CAPALDI

framework is the LAW; if the framework becomes POLITICS, then there is no negotiation only coercion (even majority rule). What distinguishes the Anglo-American world is LAW and the ‘rule of law’ that is above politics: It is civil association. Law rests upon acquiescence of individuals and their specific interests. Otherwise, law simply becomes the rules of the most powerful interest group. In Positivism, law rests on politics and its emphasis on legislation (Bentham, Kelsen, Hart). Even in Dworkin, the judge is a legislator who appeals to abstract collective principles like EQUALITY.

David Hume (1711–1776) Hume’s immediate context was defined by clergy (Kirk) who (a) emphasized Christian self-denial and control of the passions, (b) justified this version of Christianity by appeal to transcendent classical philosophy (e.g., Cambridge Platonists), and (c) promoted a culture suspicious of, if not hostile to, commerce. Politically, Britain was divided between two political parties, each appealing to intellectual abstractions that made compromise difficult, if not impossible, and might lead to self-destructive revolution. Hume’s project was to undo everything the Kirk stood for by undermining its intellectual foundations, promoting a commercial society by emphasizing its human origin and humane consequences, and promoting thereby a more productive politics. Hume began by radicalizing nominalism: How we understand ourselves is more fundamental than how we understand the nonhuman world.39 We do not begin with a Cartesian cogito or Kantian self (as Wittgenstein would later put it there is no private language); we first become conscious of others and through them we become selfconscious—but they did not start out with a cogito either. When we discover our ‘selves,’ we discover not a permanent structure to which we must conform but a dynamic process that requires our conscious activity, participation, or cooperation. The social condition is a malleable acquisition or inheritance (Oakeshott) not a given (myth of the social given). We do not directly apprehend a self but come in time to the idea of the self.40 The latter itself is the product of a ‘we-do’ perspective (not ‘I think’ or ‘I do’).41 We cannot step outside this process and view it as a permanent structure; hence, there cannot be a scientific or realist account of human activity; even science itself is the product of such a process; therefore, SCIENTISM is unintelligible. ‘In Newton this island may boast of having produced the greatest and rarest genius

3  THE BRITISH INTELLECTUAL INHERITANCE 

73

that ever arose for the ornament and instruction of the species.’ After noting advances made by Boyle and Hooke in the mechanical philosophy, Hume says: ‘While Newton seemed to draw off the veil from some of the mysteries of nature, he shewed at the same time the imperfections of the mechanical philosophy; and thereby restored her ultimate secrets to that obscurity, in which they ever did and ever will remain.’ Hume’s own account of the unintelligibility of scientism is in his epistemology. It really doesn’t matter exactly how external objects cause us to have impressions. The really important work is done by the mind. All the important ideas are complex ideas, and complex ideas are constructed by the mind. He also thought he could safely ignore the verification problem, because being reasonable and rational was a matter of being guided, again, by the instinctive and habitual internal operations of the mind. So far, so good. The real problem for Hume was his recognition that while we might not have to explain how external objects cause internal impressions, we are led to wonder how we can explain why the mind operates in the way it does. Hume was led to speculate on the physiological foundations of the operations of the mind, working out a very complex Newtonian-like account. The problem is that if we can’t explain how external physical objects cause mental events why should we expect to explain how internal physiological processes cause mental events or activities? This lack is reflected in Hume’s famous recognition in the appendix to the Treatise that he cannot conceive of how he or anyone else is ever going to give a physicalist/scientific account of how the mind gives scientific accounts. The lack is reflected in the perennial undiscovered physiological account of how the physical world generates mental functions. …all my hopes vanish, when I come to explain the principles, that unite our successive perceptions in our thought or consciousness. I cannot discover any theory, which gives me satisfaction on this head. In short, there are two principles, which I cannot render consistent; nor is it in my power to renounce either of them, viz. that all our distinct perceptions are distinct existences, and that the mind never perceives any real connexion among distinct existences. Did our perceptions either inhere in something simple and individual, or did the mind perceive some real connexion among them, there wou’d be no difficulty in the case. For my part, I must plead the privilege of the sceptic, and confess, that this difficulty is too hard for my understanding.42

74  N. E. NEDZEL AND N. CAPALDI

In his discussion of the phenomenology of human psychology, Hume identified our basic mental processes as recognizing resemblances and reasoning by analogy from previous instances. This is exactly the form of legal reasoning used in the English legal system. The fundamental error of classical and medieval thought was believing that truth, goodness, and beauty (meaning, and all norms) exist in an objective structure independently of us, that those norms form a self-contained (holistic and collective) and hierarchical structure (telos) to which we must conform. The absence of a teleological totality entailed the absence of a collective social good (hence the importance of individual liberty). We cannot understand ourselves independent of human action without falling into self-defeating skepticism. Skepticism is the logical outcome of classical philosophy. This articulation of the Copernican Revolution in philosophy explains the transition to the technological project, the transformation of nature for human purposes,43 hence the importance of entrepreneurship and the transition from agriculture to industry—crucial for the creation of wealth, the redefinition of property, and social transformation. Classical philosophy, in response to the scarcity of a wholly agricultural economy, had encouraged us to ‘discover’ an external structure and to conform to it by self-denial. Copernican philosophy encourages us to manipulate (transform) the world to conform to our own internally generated models. This allows Hume to account for economic growth and be pro-commerce. Practice precedes theory and reflects spontaneous order,44 not planned order. Since the original order was not planned, it does not enshrine consciously identified positive goals, and it is not expressible in a closed deductive system. It does, however, contain implicit norms. In Hume’s famous example, two men in a boat start coordinating their rowing.45 Hume showed us how we avoided skepticism.46 The legitimate use of reason therefore is the explication of inherent norms. Critique is inevitably immanent, and there will inevitably be conflicting understandings, that is, moral pluralism (domestic political parties; international competition/conflict). There is no Archimedean position from which to resolve the disputes definitively or permanently. In response to such conflicts, some societies develop a legal system. Law functions to minimize conflict not permanently resolve it.

3  THE BRITISH INTELLECTUAL INHERITANCE 

75

Spontaneous order, so understood, is the foundation of the rest of Hume’s philosophy. Hume’s project is to understand the human world (morality, politics, economics, policy, etc.) by rooting it in spontaneous order, history, and the evolution thereof understood inductively. For both Hume and Smith, we are able to adopt the social perspective through imagination and sympathy, not reason. More to the point, sympathy allows us to understand how others understand their personal interests and therefore aids in the negotiation of social endeavors. Britain’s legal and political system is a collection of norms that evolved over time (Hume’s History is designed to establish and reinforce this). As in the case of Hayek and Oakeshott, Hume’s political theory is an attempt to transcend partisanship, and that is why it is a mistake to attribute to him either (a) a label or (b) the criticism that he fails to make a case for a label. Instead of a dubious ‘contract’, we are given an historical account rooted in an original spontaneous order. The ultimate ontological reality is the individual human agent; there is no institution or practice that transcends the individual; the legitimacy of any practice is based on the acquiescence of individuals; acquiescence is not consent. How then does this relate to liberty? Individual liberty is the central theme of the History. Just as we are not immediately aware of our ‘selves’, there is no immediate apprehension of the importance of liberty. There is no philosophical argument for individual liberty; it is not an absolute value. Liberty, or liberties, as a set of social practices (individual, social, political, and economic) emerged as a result of custom and tradition. Given its unique history, England was able to preserve and elaborate this insight in large part because of its inherent disposition to distrust abstractions—this is the British intellectual inheritance, and Hume’s philosophical practices, as well as his History, reflect this. Prior to Hayek47 and Oakeshott,48 Hume gave the best philosophical foundation for modernity (understood to encompass the technological project, market economy, limited government, rule of law, and culture of personal autonomy).49 He did so by changing our conception of philosophy (Copernican Revolution); he showed that alternative conceptions of philosophy are not only wrong but both retard intellectual development and distort legal–political–economic institutions and public policy50; he identified the problematic transition from traditional cultures to modernity that has dogged the international context; and he moved public policy discussion from ideology to prudence.

76  N. E. NEDZEL AND N. CAPALDI

Hume’s understanding of liberty and the rule of law exemplifies all this. Following the collapse of the medieval Aristotelian teleological worldview, the word ‘nature’ no longer described the fully developed condition but the primitive condition of mankind. This is what subsequent thinkers—including the natural jurisprudence tradition—recognized. In Hobbes and in Hume, this became the extra-political condition. The extra-political condition is one of individual ‘freedoms.’ This extra-political condition never disappears. The state of nature in Hobbes is not an historical event in the past but a description of what happens following the collapse of authority in a revolution, and hence the need to avoid revolution. Hume wants to avoid revolution as much as Hobbes did. Hume also acknowledges an extra-political condition in several ways. Since legitimacy is always a matter of acquiescence and opinion, legitimacy can disappear. Furthermore, governments should always assume that men might do bad things (Tory view). Revolutions, understandably, may sometimes be embraced.51 However, there cannot be an authoritative rationale for revolution or a theory of revolution—this merely changes the locus to something else that might be contestable. Besides, such an account (as in Locke) is dangerous because it can foment revolution. It foments social instability by hypostasizing allegedly unimpeachable and incontestable abstractions. The liberation of the individual has not and could not be achieved without the maintenance of custom and institutions. There is, thus, more continuity between Hobbes and Hume than is generally acknowledged. Hume criticized Hobbes because of the perceived inadequacy of Hobbes account. Hobbes’ account is potentially destabilizing in Hume’s view because of its apparent psychological egoism. That is why limited benevolence and sympathy become important for Hume as well as Smith. Despite his claim that Hobbes’ state of nature is a mere philosophical fiction, it is one that Hume himself invokes when he says that a disregard for property rights results in a return to ‘that savage and solitary condition, which is infinitely worse than the worst situation that can be supposed in society.’52 To be more precise, the ‘freedom’ of the extra-political condition is different from or evolves into the ‘liberty’ of the authoritative legal/ political condition. Turning to the rule of law, Hume’s contribution to our understanding of it is that the rule of law is the meeting point of liberty and authority. Liberty exists when no one has to fear coercion from another and that is precisely what the ‘rule of law’ provides namely, ‘to

3  THE BRITISH INTELLECTUAL INHERITANCE 

77

act by general and equitable laws that are previously known to all the members and to all their subjects.’53 Hume uses the exact terminology later used by Dicey and Hayek. The extra-political condition consists of our interests (individual liberty) but more precisely of how we understand our interests: ‘though men be much governed by interest; yet even interest itself, and all human affairs are entirely governed by opinion.’54 Opinion is our passions subtended by reason. Opinion is not a theory, which is why traditional political theorizing is bogus if not dangerous (Hayek and Oakeshott). It is instead a narrative. One’s conception of one’s interest is a function of one’s conception of one’s personal identity that is the product not only of a train of memories but also the story or narrative one tells about oneself. Analogously, what governs society is a narrative of how we understand our society and its history; hence, the importance of getting the narrative correct—this is why Hume writes the History. Hume was not the first to engage in historical explication. Outside of England, Montesquieu (who had studied law) noted, in 1748 in The Spirit of the Laws before Hume began publishing his History (1754), some unique features of English history. Hume corresponded with Montesquieu and shared much of his perspective: There are three types of regime: despotic; civilized monarchies; and constitutions based on ­liberty—of which England is the shining example; they are both concerned with civil or private liberty; representative government is a means to liberty not the essence of liberty; and both begin their histories with Tacitus and the ‘liberty’ of the Britons.55 Given the extra-political condition and the need to remind people about the destructiveness of revolution, a correct narrative does not follow a carefully laid out script. The narrative needs to show the ‘bad’ as well as the ‘good.’ What is the ‘good?’ Within the narrative, we can extract norms from previous practice even in the face of the persistent violation of those norms; we ask do certain norms persist over time and even evolve (conservative element). Hume’s History is just such a narrative, without denying the warts, of how specific constitutional arrangements (rule of law; balancing the executive and legislative branches; habeas corpus; legal safeguards in particular are a special part of the history of England in anybody’s retelling) developed over time. It also becomes important to contest rival narratives (both Whig and Tory): Hume focuses on how they misrepresent specific events to fit a present preferred policy. The narrative only makes sense if the legal safeguards

78  N. E. NEDZEL AND N. CAPALDI

of individual liberty explain why we do not (yet) need to revert to the extra-political condition. In reading Hume on liberty, in both the Essays and the History, the analogy that comes to mind is the adversarial system of law in which two sides cite precedents and by analogy argue that one interpretation of the contested practice is more coherent than the other. It would appear that there are certain features of the English conception of liberty that are unique, and that is the result of something special about English history. Certainly, some of his contemporaries thought so (Voltaire, Montesquieu, Constant; Federalist Papers) and hoped to see those features adopted elsewhere. In retrospect, some of those features such as the presumption of innocence and habeas corpus have been subsequently adopted (post-Hume) elsewhere. Nevertheless, those features originated in the English context, and they do not mean exactly the same thing in different cultural contexts. Hume, anticipating Oakeshott, does not pretend that his narrative can produce an algorithm or predict future permutations. Individual liberty will always have to be retrieved, rediscovered, and defended. The case for liberty will always have to be restated in the face of new circumstances. One of the strengths of the English intellectual inheritance (from Ockham to Oakeshott) is that it keeps individual liberty front and center and is always skeptical of abstractions that hypostasize a social whole. That inheritance attracts like-minded people from the outside from Montesquieu to Polanyi and Hayek. ‘Liberty’ is a product of spontaneous order. There is no positive (or essential) definition of ‘liberty.’ It can be defined negatively as either (a) the violation of a previously agreed-upon way of engaging in exchange or the fulfillment of obligations or the absence of (b) the imposition of new requirements or restrictions to which we have neither overtly consented nor acquiesced over time. What we can identify over time are acts of injustice. It is through the perceived violation of a practice that we are led to articulate the practice. That is why it is sometimes easier to talk about our specific liberties. Our specific liberties are explications of practices that have developed over time. This is most clearly reflected in the unique history of the common law in England. This is why Hume’s History of England is so important; it is a history or evolutionary account of things like the ‘rule of law’ and political procedures that have turned specific past practices into overt legislative processes. The danger of the Tory and Whig

3  THE BRITISH INTELLECTUAL INHERITANCE 

79

accounts is that they try to freeze ‘liberty’ into an abstraction in order to defend some favored political agenda. Such abstractions encourage a dangerous intransigence and undermine the need for negotiation. Hume’s account does not reject the idea of an unwritten constitution reflected in historical practice but it does contest the notion that there is an ahistorical, final definitive account of what is unwritten. In short, like Hobbes, Hume sought to avoid civil war in his time between two bad theories (divine right and ancient constitution) by means of the ‘restoration’ of a government focused on maintaining peace by appeal to a neutral legal order incorporating the ‘rule of law’ (liberties not a theory of liberty). As a nominalist, Hume would insist that no concept can be turned into a timeless abstraction. The attempt to do so in the case of normative concepts like ‘liberty’ is a camouflaged attempt to impose a private political agenda (e.g., Wilkes) by appeal to an abstraction. Analogously, this reflects the same conflict between negative rights and a positive conception of rights. ‘Liberty’ is more akin to negative rights. Hayek tried to capture this same point in his discussion of ‘coercion’ in The Constitution of Liberty. In similar fashion, Oakeshott’s concept of ‘civil association’ is best defined negatively as the absence of an ‘enterprise association.’ Those who object to the lack of a clear positive abstraction either reject the notion of spontaneous order or have an alleged normative timeless abstraction in mind (fulfillment, happiness, natural law, salvation, human rights, equality, etc.). The test of the adequacy of Hume’s narrative is whether it rings more or less true: (a) like a legal brief we ask if it gives a consistent and coherent account of the precedents; (b) we ask if it will keep the polity going; and (c) in retrospect, we note that England somehow managed to muddle through its civil war and the Glorious Revolution as opposed to the serial revolutions in France that were provoked by erasing the past in favor of misguided theory and abstractions. The English have ‘happily established the most perfect and accurate system of liberty that was ever found compatible with government … [owing more to a] ‘mixture of accident’ [than] ‘wisdom and foresight.’56 Clearly, this is a spontaneous order account.

80  N. E. NEDZEL AND N. CAPALDI

Adam Smith (1723–1790) He is the author of the classic The Wealth of Nations (1776) and was Hume’s close friend, whose views he largely shared. Both rejected key features (e.g., teleology) of classical thought; both believed in a natural history account (spontaneous order) of the human world; both recognized sympathy as the basis of the social world; both rejected the French Enlightenment Project and social technology (Smith puts this as a rejection of the application of natural science to the social and economic world); and57 both rejected what Smith called ‘the man of system.’ Smith subscribed to an evolutionary (natural history) account of human society that involved four economic stages: hunters and fishermen, shepherds, agriculture, and commercial societies. In the first stage, there is no permanent property and hence no magistracies or positive laws. In Feudal societies, laws develop to suppress and exploit; in commercial societies, laws develop to protect private property. Such laws must be consistent with our natural rights, understood negatively: Each person has a right to ‘do what he has a mind when it does not prove detrimental to any other person.’58 This statement takes on a huge significance in J. S. Mill’s work. The ‘rule of law’ exists then when individuals can pursue their private goals without involuntary subordination to the goals of others or to an alleged collective social goal. This is consistent with what Hayek and Oakeshott say later.

Edmund Burke (1729–1797)59 Like Adam Ferguson, David Hume, and Adam Smith, Burke understood that society was the product of a prolonged process of cumulative growth, and in the case of England the ‘ancient constitution.’ He opposed ‘meddling’ inspired by ‘visionary … speculation.’60 Burke ‘resolved almost all that ha[d formerly] been ascribed to positive institution into the spontaneous and irresistible development of certain obvious principles,—and … [to] show with how little contrivance of political wisdom the most complicated and apparently artificial schemes of policy might have been erected.’61 Burke advocated free-enterprise: ‘the moment that government appears at market…the principles of the market will be subverted.’ ‘It is better to leave all dealing … entirely to the persons mutually concerned in the matter contracted for than to put this contract into the hands of those who can have none, or a very remote

3  THE BRITISH INTELLECTUAL INHERITANCE 

81

interest in it, and little or no knowledge of the subject.’ The ‘[m]arket is the meeting and conference of the consumer and producer, when they mutually discover each other’s wants.’62 As is to be expected, Burke opposed egalitarianism because it led to ‘equal want, equal wretchedness, equal beggary.’63 It is better to leave ‘much to free will, even with some loss to the object, than to attempt to make men machines and instruments of a political benevolence. The world on the whole will gain by a liberty without which virtue cannot exist.’64 With regard to the rule of law, Burke insisted that ‘the judicature … ought to [be] ma[d]e, as it were, something exterior to the state, … radical[ly] independent, … constituted to resist arbitrary innovation … and calculated to afford both certainty and stability to the laws ….’65

J. S. Mill (1806–1873)66 In his technical philosophy (A System of Logic, 1843), Mill developed the nominalist and inductivist inheritance of his forbearers such as Bacon. Mill was highly self-conscious of the difference between the British and the Continental mind-set: ‘the chief infirmities of French thinking arise from its geometrical spirit; its determination to evolve its conclusions, even on the most practical subjects, by mere deductions from some single accepted generalization … obtained directly from the fountain of reason …. it is still worse in Germany, the whole of whose speculative thinking is an emanation from Descartes, and to most of whose thinkers the Baconian point of view is still below the horizon … temporarily modified by the powerful intellectual individuality of Kant, but flying back after him ….’67 In his defense of individual liberty (On Liberty, 1859), the work for which he is most known, Mill (a) divorced himself from the rationalist utilitarianism of his father and Bentham and (b) provided a ‘Kantian’ argument for the supreme value of individual freedom or autonomy. Elsewhere,68 we have argued that both the nominalist metaphysics and Copernican epistemology of the British intellectual inheritance led Mill to the conclusion that individual freedom is the preeminent philosophical presupposition of public policy, and liberty (civil and political) is the means to actualize it. Mill is a pivotal figure in the explication of individual autonomy within the British intellectual inheritance. As Oakeshott provided:

82  N. E. NEDZEL AND N. CAPALDI Almost all modern writing about moral conduct begins with the hypothesis of an individual human being choosing and pursuing his own directions of activity….This is unmistakable in Hobbes, the first moralist of the modern world to take candid account of the current experience of individuality….the autonomous individual remained as the starting point of ethical reflection….And nowhere is this seen more clearly than in the writings of Kant. Every human being…is recognized by Kant to be a Person, an end in himself, absolute and autonomous….Morality consists in the recognition of individual personality whenever it appears…we may promote the ‘happiness’ of others, but we cannot promote their ‘good’ without destroying their ‘freedom’ which is the condition of moral goodness.69

What Mill does is to restate the importance of the individual in the British intellectual inheritance (from Ockham to Hobbes and others) in light of Kant’s understanding and in eloquent English. His articulation remains the culmination of this insight. [T]he appropriate region of human liberty … comprises, first, the inward domain of consciousness … liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects …. The liberty of expressing and publishing opinions …. Secondly … [the] liberty of … framing the plan of our life to suit our own character … so long as what we do does not harm [others] …. Thirdly … the liberty within the same limits, of combination among individuals; freedom to unite …. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it …. [T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection … to prevent harm to others …. There are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil …. Over himself, over his own body and mind, the individual is sovereign.70

The ultimate uncontestable nominalist reality is the (autonomous) individual free will (freedom). The social issue is what restrictions or lack thereof (liberties) are most compatible with such freedom. Hereafter, the focus shifts to questions concerning which institutional arrangements respect and promote this. It is the individual, not the social whole and not the democratic majority, that counts. Representative

3  THE BRITISH INTELLECTUAL INHERITANCE 

83

democracy is the political institutionalization not of the wisdom of the majority but of giving each individual his say. No one took Tocqueville’s concern about the tyranny of the majority more seriously than Mill. But it will be left to Dicey, Hayek, and Oakeshott to emphasize the importance of the ‘rule of law.’

German/Austrian Expatriates Late nineteenth-century and early twentieth-century Vienna was one of Europe’s great intellectual centers. The collapse of the Austro-Hungarian Empire and Hitler’s Nazi Anschluss scattered its intellectual elite. Those intellectuals enamored of positivism moved mainly to the United States. Those enamored of individualism emigrated primarily to the UK. Among the latter, we can single out Michael Polanyi (1891–1976). In 1933, Polanyi left Germany for England where he became a citizen and a professor at the Victoria University of Manchester. Like Hayek, he criticized positivism both for its false view of physical science and for undermining cultural institutions. He originally developed the concept of spontaneous order to critique central planning. In The Logic of Liberty (1951), Polanyi argued that science is a spontaneous order that arises as a consequence of free and competitive debate. Cooperation among scientists is analogous to the way buyers and sellers coordinate themselves in a market. This self-coordination produces an unpremeditated outcome. Any attempt to organize the debate under a single authority would eliminate independent initiatives. Polanyi’s discussion of polycentric order in this book,71used to critique a centralized economy, was adopted by Lon Fuller to warn about the unintended consequences of managerial law.72 In Personal Knowledge (1958), Polanyi developed an anti-realist epistemology in which the language of science is parasitic upon the everyday practical world. Human thought and action are not purely natural events but events relying upon tacit social agreements. The meaning of the events is dependent of how the agents involved in those events perceive or understand the events. The agents’ understanding of the events is not explicable at some other level by reference to objects independent of the agents’ attitude toward those objects. Like Wittgenstein, Polanyi argued that the ability to follow rules rests on a way of life that cannot be stated without infinite regress.73 Ludwig Wittgenstein, Hayek’s cousin, became the most misunderstood and important anti-positivist philosopher at Cambridge, and

84  N. E. NEDZEL AND N. CAPALDI

his work on the philosophy of language is a masterpiece of explaining language as a cultural version of spontaneous order (although he did not use the expression). See, for example, his posthumously published On Certainty (1969).74 Also noteworthy is Wittgenstein’s nominalistic emphasis on ‘family resemblance’ in defining a term rather than looking for an essence. Karl Popper (1902–1994) was a highly influential twentieth-­century philosopher. His views were complex, multifaceted, and too full of internal tensions for us to do justice to them. However, we do wish to call attention to why he fits here. Born in Vienna, he emigrated in 1937 because of the Nazis, first to New Zealand, and then to England in 1946 where he became the professor of logic and scientific method at the University of London in 1949. He was a friend of Hayek, and there are important similarities (as well as differences) in their views. Popper abandoned his youthful Marxism and became a staunch defender of free societies as he understood them. In the philosophy of science, he abandoned hardline positivism and developed the view that theories are never proven but prevail if they survive trial and error falsification. This conception of scientific practice mirrors Hayek’s notion that when confronted with new challenges a law or an interpretation or reinterpretation of a law evolves and survives because it achieves coherence.

Friedrich Hayek (1899–1992) After serving in the Austrian Army in World War I, Hayek pursued an academic career with the intention of helping to avoid the mistakes that had led to the war. At the University of Vienna, he worked with Carl Menger (who introduced him to the works of Hume) and Ludwig von Mises, and later worked with Fritz Machlup and Eric Voegelin. His early training was in law and in economics. He was invited to the London School of Economics (LSE) in 1931 by Lionel Robbins. Although a friend, Hayek engaged in a lengthy critical debate with Keynes on monetary and fiscal policy. Hayek became a UK citizen in 1938. He achieved international fame with the 1944 publication of The Road to Serfdom. For a brief period of time, he was a colleague of Oakeshott at LSE. In 1950, he joined the faculty of the Committee on Social Thought at the University of Chicago. In 1947, he co-founded the Mont Pelerin Society with Milton Friedman and others. The 1955 lectures on the Political Ideal of the Rule of Law were given at the Cairo National Bank. In 1961,

3  THE BRITISH INTELLECTUAL INHERITANCE 

85

he published The Constitution of Liberty which he hoped would do for the twentieth century what Mill’s On Liberty had done for the nineteenth century. He eventually retired to Freiberg, Germany. From 1973 to 1979, he published Law, Legislation, and Liberty. He was awarded the Nobel Prize in economics in 1974. Margaret Thatcher and Ronald Reagan both claimed to have been influenced by his thought. Hayek is especially noteworthy because he acknowledged Hume as his predecessor and, in our opinion, was the first twentieth-century philosopher to interpret Hume correctly. [T]hought seems to have made little advance since David Hume and Immanuel Kant, and in several respects it will be at the point at which they left off that our analyses will have to resume. It was they who came nearer than anybody has done since to a clear recognition of the status of value as independent and guiding conditions of all rational construction. What I am ultimately concerned with here … is that destruction of values by scientific error … [this is] a tragedy, because the values which scientific error tends to dethrone are the indispensable foundation of all our civilization … science itself … rests on a system of values which cannot be scientifically proved.75

As early as 1960, with the publication of The Constitution of Liberty, Hayek acknowledges that ‘Hume will be our constant companion and sage guide ….’76 (In that work, he cites Hume 28 times.) In short, Hayek was not merely aware of his participation in a tradition best represented by Hume, he consciously channeled Hume!

Michael Oakeshott (1901–1990)77 As a student at Cambridge in the 1920s, Oakeshott was influenced by British idealists (anti-scientism) and historians, but his greatest inspiration seems to have been the work of the German philosophers Hegel and Wilhelm Dilthey on hermeneutics (pre-understanding of social communication). Most of his academic career was spent as the leading intellectual light of the LSE from 1948 to 1967. In Experience and Its Modes (1933), he offered a pluralistic view that rejected any form of transcendent philosophy or totalization; he revolutionized Hobbes scholarship with his 1946 Introduction to Thomas Hobbes’ Leviathan; he embraced conservatism (inductivism)—as a disposition not an ideology—in ‘On Being Conservative’ (1956); and his political philosophy was best

86  N. E. NEDZEL AND N. CAPALDI

expressed in (1975) On Human Conduct (especially the distinction between ‘civil’ and ‘enterprise’ association) and the posthumously published The Politics of Faith [utopian] and the Politics of Scepticism [quite Humean]. On History (1983) contains the important essay ‘On the Rule of Law.’78 His notable essays on ‘Rationalism in Politics’ (1947), ‘The Tower of Babel’ (1948), ‘The Voice of Poetry in the Conversation of Mankind’ (1959), ‘The Masses in Representative Government’ (1961), and many others are collected by T. Fuller (ed.) in the 1991 publication Rationalism in Politics and Other Essays. Since his death, many of his former students and other scholars have begun to make the scholarly case for Oakeshott as the greatest British thinker of the twentieth century. Just as Hayek channeled Hume, so Oakeshott channels Mill. In his Inaugural lecture at LSE, Oakeshott saw his own work as a further stage on a path on which Mill had embarked.

Notes



1.  Philosophers have traditionally contrasted British empiricism with Continental rationalism. This distinction was introduced by nineteenth-century German historians, and it is now wholly discredited. 2. See Muirhead (1931). 3. Although we cannot fully develop this theme here, we postulate that to the extent that British thinkers emulate Continental thought they seem to be committed to a kind of social whole that is inhospitable to nominalism and individualism. For example, Thomas More’s Utopia (1516), if taken literally, reflects the social collective of medieval Christendom: An organic community, egalitarian, agriculture, detached from the material world; the same seems to be the case for the Scottish commonsense defense of the status quo (Hamilton, Mansel); the British idealists from Green to Bradley and Bosanquet were vehemently opposed to what they called empiricist atomism and stressed the extent to which the social whole defined the individual (Nicholson 1990); relative to our theme of the ‘rule of law’ as uniquely Anglo-American, the major critics of Dicey (Allison) and Oakeshott (Loughlin) are opposed to Brexit and seek reunion with the Continental legal tradition. 4. It is legitimate to point out that Aristotle had a distinct conception of practical reason as different from theoretical reason. It is also legitimate to add that Aristotle’s views were rigidified into ‘Aristotelianism’ by later Arabic and Christian thinkers. Nevertheless, Aristotle did not have a conception of will, and this underscores the difference from Ockham.

3  THE BRITISH INTELLECTUAL INHERITANCE 













87

5. We use the adjective ‘human’ instead of ‘social’ because some theorists inspired by Continental thinking have hypostasized the term ‘social’ in an endeavor to create an otherwise indefensible notion of a collective whole. 6. Bede (2009), an eighth-century monk identifies the tribes as Angles, Saxons, and Jutes. 7. Tacitus (2010, chapter 7). 8. Ibid., chapter 9. 9. Montesquieu (1989, p. 166, Part II, BK. 11, chapter 6). 10. Ibid., p. 167. ‘Tacitus says that they [the Germans] gave their kings or leaders only a very moderate power’ (ibid., p. 306). 11. Ibid., p. 343, Part IV, BK. 20, chapter 7. 12. Ibid., pp. 534–535, Part VI, Bk. 28, chapter 5. 13. MacFarlane (1978, p. 196). For a brief defense of MacFarlane’s views see Ryan (1988). 14. Knowles (1962). 15. Siedentop (2014, p. 313). 16. Siedentop (2014, p. 309). There is a ‘difference between the “reasons” for human action and the “causes” of external events’ (p. 328). 17. John Wyclyf (1320–1384) was the most important English precursor of Protestantism. 18. Siedentop (2014, p. 311). According to Ockham, ‘the people is not an individual, it is an aggregate of individuals,’ and, therefore, representation must include ‘the individual delegation by members of the community’ for which Monahan (1987, pp. 239–249). 19.  Oakeshott criticizes Bacon for helping to initiate the Enlightenment Project; however, Bacon was very clear that the technological project did not apply to the social world and traditional morality. 20. For Oakeshott’s retrieval of Hobbes, see Noel Malcolm ‘Oakeshott and Hobbes,’ in DeVigne (2012), pp. 217–231. 21. We largely rely on Oakeshott’s interpretation of Hobbes both because we think it is correct and because Oakeshott is the present culmination of both our narrative and the British intellectual tradition. Despite their different responses, Strauss would agree that Hobbes was not an authoritarian. What is remarkable, if not amusing, is that despite their many similarities and agreements, Hayek and Oakeshott were fundamentally at odds over the importance of Hobbes and Hegel. For Oakeshott, the latter two were crucial in the development of the concept of the rule of law. For Hayek (2010, p. 290), Hobbes was counterproductive and Hegel unintelligible. ‘I ought to warn you, therefore, that I do not pretend to understand Hegel.’

88  N. E. NEDZEL AND N. CAPALDI 22.  Universals are names (Hobbes 1640, 5.6–7; Hobbes 1651, 4.6–8; Hobbes 1655, 2.9). According to Leibniz, ‘Hobbes seems to me to be a super-nominalist. For not content like the nominalists, to reduce universals to names, he says that the truth of things itself consists in names and what is more, that it depends on the human will, because truth allegedly depends on the definitions of terms, and definitions depend on the human will’ (Leibniz 1670, 128). In the Elements of Law, Hobbes maintains that colors inhere in perceivers, not the objects (Hobbes 1640, 1.2). 23. The first part of The Elements of Law is titled ‘Human Nature’ and the second ‘De Corpore Politico’ (‘About the Body Politic’). In Leviathan, he commences with an account of the mind, including the senses, imagination, language, reason, knowledge, and the passions. 24.  There is no Cartesian immaterial mind with access to a transcendent reality. 25. Oakeshott will do the same. 26. Understanding is ‘[t]he imagination that is raised in man (or any other creature enbued with the faculty of imagining) by words or other voluntary signs’ Hobbes (1651, 2.10). 27. Oakeshott (1991), ‘Introduction to Leviathan,’ pp. 278, 280, n. 111. ‘Emphasis upon the rational element in personality resulted, finally, in the Cartesian doctrine of the primacy of cognition and of self-consciousness as the true ground of personality. While the emphasis upon the substantial element made the most of the opposition between personality and rationality and resulted in what may be called the romantic doctrine of personality with its assertion of the primacy of will…This second emphasis was the work of the late medieval nominalists, and it is the emphasis that is dominant in Hobbes.’ 28. This Oakeshottean remark captures the Wittgensteinian insight about language that inspired Hayek’s treatment of spontaneous order. 29. Oakeshott (1935–1936, p. 276). 30. Oakeshott (1991, p. 342) ‘[S]elf-love appears as self-knowledge and self-respect, the delusion of power over others is replaced by the reality of self-control, and the glory of the invulnerability which comes from courage…’ 31. R. G. Collingwood (1989), who influenced Oakeshott’s thinking, claimed in his own book The New Leviathan (1942), that Hobbes’ Leviathan ‘was the first book in which the idea of a civilized society was consciously and systematically expounded.’ Collingwood’s liberalism, based on the idea that we renounce ‘…all Utopias…all hope of omnipotence or omniscience…believing that human beings will never have solved all of their problems, overcome all their difficulties, or settled all their quarrels’ and focus on managing our present challenges, is a liberalism that Oakeshott would share (pp. 193, 228).

3  THE BRITISH INTELLECTUAL INHERITANCE 

32. See Capaldi and Lloyd (2016, chapter one). 33. Locke (1980, Second Treatise, VI, § 57) 34. Hayek, (1961, p. 170). 35. Forbes (1966, p. xxiv of Introduction). 36. Hayek (1961, p. 148). 37. See Skinner (2008). 38. Infantino (1998, p. 19). 39. Capaldi (1972). See Capaldi (1985, pp. 271–285). The complex idea of the self emerges in action as the object of pride and humility. Hume’s conception of personal identity (idea of the self) anticipates Oakeshott’s conception: The self of which we are not immediately aware is free to use imagination to define itself as an individual and give meaning to its historical experience by making choices; this is how we learn about and make ourselves; this engagement is a self-enacted history (adventure in self-definition). 40. Capaldi (1985, pp. 271–285). 41. Capaldi (1989). Popper and Eccles (1977) makes the same point (pp. 109–111). 42. Hume (1964, Treatise, appendix). 43. See Capaldi and Lloyd (2016). 44. Hayek (1961, p. 115, n. 23) asserts that Hume was the first person to give cogent expression to what Hayek later called ‘spontaneous order.’ 45.  (1964, Treatise, 3, 2, 2). 46. Capaldi (1975, chapter 8). 47.  ‘Thought seems to have made little advance since David Hume and Immanuel Kant, and in several respects it will be at the point at which they left off that our analyses will have to resume. It was they who came nearer than anybody has done since to a clear recognition of the status of value as independent and guiding conditions of all rational construction. What I am ultimately concerned with here … is that destruction of values by scientific error … [this is] a tragedy, because the values which scientific error tends to dethrone are the indispensable foundation of all our civilization…. Science itself … rests on a system of values which cannot be scientifically proved’ (Hayek 1973, pp. 6–7); in all three volumes, Hayek cites Hume a total of 43 times. As early as Hayek (1961, Introduction, n. 10) acknowledges that ‘Hume will be our constant companion and sage guide….’ In that work, Hume is cited 28 times. 48. Oakeshott acknowledged Hume as a proponent of the politics of skepticism. For an Oakeshottean reading of Hume, see Letwin (1998). 49. See Capaldi and Lloyd (2016).



89

90  N. E. NEDZEL AND N. CAPALDI

50. Since transcendent philosophy is mistaken, there can be no such thing as social ‘science’ understood as explaining, predicting, and controlling the social world by means of a social technology. In this important respect, Hume differs from some British Enlightenment (Bentham) and most of the French Enlightenment thinkers. See Hume’s Letter to Turgot, Letters, vol. II, 180. 51. A contextual rationale is not the same as a theory of revolution. 52. Hume (1964), Treatise (3, 2), pp. 493–497 in Selby-Bigge. 53. See Hume (1987, p. 40). 54. Hume (1987, p. 5). 55. Hume (1983, I, p. 5). 56. Hume (1983, I, p 704). 57. See Adam Smith History of Astronomy, cited by Hayek in ‘Scientism and the Study of Society, Part I,” Economica, NS 9 (August 1942), p. 167. 58. Smith (1982, [A].i.13). 59. The only people Hayek cites more than Burke are Ferguson, Hume, and Smith. For a discussion of the similarities and differences between Hayek and Burke, see Raeder (1997). For Oakeshott’s understanding of Burke, see DeVigne (2012, ‘Oakeshott as Conservative,’ pp. 268–289). 60. Burke (2018, pp. 4, 32). 61. Francis Jeffrey, cited in Hayek, Constitution, 57. 62. Burke (2018, pp. 9–32). 63. Burke (2018, p. 11). 64. Burke (1987, p. 91). 65. Burke (1987, p. 181). 66. Despite his early enthusiasm for Mill and the remarkable parallels between their work, Hayek seems to have had a deficient appreciation of Mill’s political philosophy, his political economy, and even his technical economics. 67. Mill (1979, p. 485). 68. For a detailed exposition on Mill, see Capaldi (2004). 69. Oakeshott (1991, pp. 367–368). 70. Mill (1859, chapter one). 71. Polanyi (1951, pp. 170ff.). 72. Fuller (1978). 73. See Capaldi (1998) for an extended critique of the scientism of analytic philosophy on the grounds that it cannot handle self-reference without falling into an infinite regress. 74. See Capaldi and Lloyd (2016, chapter 12). 75. Hayek (1973, Introduction, pp. 6–7); in all three volumes, Hayek cites Hume a total of 43 times. 76. Hayek (1961, Introduction, n. 10).

3  THE BRITISH INTELLECTUAL INHERITANCE 

91

77. For a discussion of Oakeshott’s own intellectual odyssey, see O’Sullivan (2014). 78. See Timothy Fuller’s entry on Oakeshott on the forthcoming Springer Encyclopedia of the Philosophy of Law and Social Philosophy.

References Bede. (2009) Ecclesiastical History of the English People. Oxford: Oxford University Press. Burke, E. (1987) Reflections on the Revolution in France, ed. J.G.A. Pocock. Indianapolis: Hackett Publishing Company. Burke, E. ([1795] 2018) Thoughts and Details on Scarcity. New York: Hard Press. Capaldi, N. (1972) “The Copernican Revolution in Hume and Kant.” In L.W. Beck (ed.), Proceedings of the Third International Kant Congress. Dordrecht, Holland: Reidel, 234–240. Capaldi, N. (1975) David Hume: The Newtonian Philosopher. Boston: Twayne. Capaldi, N. (1985) “The Historical and Philosophical Significance of Hume’s Theory of the Self.” In A. J. Holland (ed.), Philosophy, Its History and Historiography. Dordrecht, Holland: Springer, 271–285. Capaldi, N. (1989) Hume’s Place in Moral Philosophy. New York: Lang. Capaldi, N. (1998) The Enlightenment Project in the Analytic Conversation. Dordrecht: Kluwer. Capaldi, N. (2004) John Stuart Mill. Cambridge: Cambridge University Press. Capaldi, N. and Lloyd, G. (2016) Liberty and Equality in Political Economy: From Locke vs. Rousseau to the Present. Boston: Elgar. Collingwood, R.G. (1989) Essays in Political Philosophy, ed. D. Boucher. Oxford: Clarendon Press. de Montesquieu, C. (1989) The Spirit of the Laws. Cambridge: University Press. DeVigne, R. (2012) “Oakeshott as Conservative.” In P. Franco and L. Marsh (eds.), A Companion to Michael Oakeshott. University Park: Pennsylvania State University Press. Forbes, D. (1966) An Essay on the History of Civil Society, ed. A. Ferguson. Edinburgh: Edinburgh University Press. Fuller, L. (1978) “Forms and Limits of Adjudication.” Harvard Law Review, Vol. 92, pp. 394–395. Hayek, F. (1942) “Scientism and the Study of Society, Part I.” Economica, NS 9. Hayek, F. (1961) The Constitution of Liberty. Chicago: University of Chicago Press. Hayek, F. (1973) Law, Legislation, and Liberty, Vol. I. Chicago: University of Chicago Press.

92  N. E. NEDZEL AND N. CAPALDI Hayek, F. (2010) Studies on the Abuse and Decline of Reason, ed. B. Caldwell, The collected Works of F.A. Hayek. Chicago: University of Chicago Press. Hobbes. (1640) Elements of Law, Natural and Politic, ed. D. Baumgold (2017). Cambridge: Cambridge University Press. Hobbes. (1651) Philosophical Rudiments Concerning Government and Society. Moscow: DoDo Press. Hobbes. (1655) De Corpore, ed. D. Baumgold (2017). Cambridge: Cambridge University Press. Hume, D. (1964) Treatise of Human Nature, ed. L.A. Selby-Bigge. Oxford: Clarendon Press. Hume, D. ([1778] 1983) The History of England, 6 vols., ed. W.B. Todd. Indianapolis: Liberty Fund. Hume, D. (1987) Essays: Moral, Political and Literary, ed. E.F. Miller. Indianapolis: Liberty Fund. Infantino, L. (1998) Individualism in Modern Thought from Adam Smith to Hayek. London: Routledge. Knowles, D. (1962) The Evolution of Medieval Thought. London: Longman. Leibniz, G.W. (1670) “Preface to an Edition of Nizolius.” In L.E. Loemker (ed.), Philosophical Papers and Letters, second edition. Dordrecht: Kluwer, 1969, 121–130. Letwin, S.R. (1998) The Pursuit of Certainty, Part I. Indianapolis, IN: Liberty Fund. Locke, J. (1980) Second Treatise on Government. Indianapolis: Hackett. MacFarlane, A. (1978) The Origins of English Individualism. Oxford: Blackwell. Malcolm, N. (2012) “Oakeshott and Hobbes.” In P. Franco and L. Marsh (eds.), A Companion to Michael Oakeshott. University Park: Pennsylvania State University Press, 217–231. Mill, J.S. ([1859] 1977) On Liberty. In Essays on Politics and Society, Collected Works, Vol. XVIII. Mill, J.S. (1979) Examination of the Philosophy of Sir William Hamilton, Collected Works, Vol. IX. Monahan, A.P. (1987) Consent, Coercion, and Limit. The Medieval Origins of parliamentary Democracy. Leiden: Leiden University Press. Muirhead, J.H. (1931) The Platonic Tradition in Anglo-Saxon Philosophy. London: George Allen & Unwin. Nicholson, P.P. (1990) The Political Philosophy of the British Idealists. Cambridge: Cambridge University Press. Oakeshott, M. (1935–1936) “Thomas Hobbes.” Scrutiny 4. Oakeshott, M. (1991) “The Masses in Representative Democracy.” In T. Fuller (ed.), Rationalism in Politics and Other Essays. Liberty Fund: Indianapolis. O’Sullivan, L. (2014) “Michael Oakeshott and the Left.” Journal of the History of Ideas, Vol. 75, No. 3, pp. 471–492.

3  THE BRITISH INTELLECTUAL INHERITANCE 

93

Polanyi, M. (1951) The Logic of Liberty. Chicago: University of Chicago Press. Popper, K. and Eccles, J. (1977) The Self and Its Brain. New York: Springer. Raeder, L. (1997) “The Liberalism/Conservatism of Edmund Burke and F. A. Hayek: A Critical Comparison.” Humanitas, Vol. X, No. I, pp. 70–88. Ryan, A. (1988) “Review of MacFarlane’s The Culture of Capitalism.” London Review of Books, Vol. 10, No. 2 (21 January), pp. 10–11. Siedentop, L. (2014) Inventing the Individual. Cambridge: Harvard University Press. Skinner, Q. (2008) Hobbes and Republican Liberty. Cambridge: University Press. Smith, A. (1982) Lectures on Jurisprudence. Indianapolis: Liberty Fund. Tacitus. (2010) Agricola and Germania. London: Penguin.

CHAPTER 4

The English Legal Inheritance

Introduction Britain has a unique legal system. Consonant with our previous discussion, the major features of that system include: 1. Its origin lies in spontaneous order from time immemorial. 2. It evolves inductively (common law; no codification). 3. Its fundamental form of reasoning is analogical and based on cases, not deductive reasoning from abstract first principles. 4. Since there are no absolute first principles, adjudication is adversarial and strives to achieve consistency and coherence through precedent, interpretation, and reinterpretation.1 5.  ‘Priority’ of law over politics (Norman Conquest, ‘judge-made’ law). 6.  The fundamental norm is the protection of individual liberties from coercion on the part of both other individuals and most ­especially the government.2 7. In common law, the primary influence is the role of judges; judges were trained in a manner that minimized theory and was rooted in practice.3 8. It has an unwritten Constitution. 9. The role of the jury reinforces the idea that law is not theory.

© The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4_4

95

96  N. E. NEDZEL AND N. CAPALDI

The Continental Legal Tradition While the Anglo-Saxon law itself developed coherence spontaneously, its enforcement was centralized from the time Henry II founded his court system, which gradually replaced the preexisting Hundred Courts, and it was separated from religious law (which took a back seat) from the time Henry II feuded with his former friend, the Archbishop Thomas Becket in the twelfth century. In contrast, the Continental ­tradition has been dominated philosophically by centralization and collectivization since approximately the same time. It has posited, since ­ the re-discovery of Justinian’s Digest in twelfth-century Bologna, that law should be deductively organized and it has focused on collectivization since Christianity became the vehicle by which law was studied, spread, and even enforced during the medieval period. The Roman Empire imposed the Greco-Roman mode of thought upon most of Continental Europe. There is an objective order to the whole world including the social world. Everything must be understood as part of this whole. When Plato has Socrates say that ‘the state is the individual writ large’ what he meant was that there is a seamless web connecting both, and that both exhibited the same internal dynamic: the subordination of impulse to the organic whole. When Aristotle discussed the state, he asserted that the state pursued the highest good and encompassed all other goods. Both Plato and Aristotle adhered to the view that the correct mode of thought was deduction from first principles, a form of top-down thinking in which everything is connected with everything else as part of a seamless web. When the Roman Empire collapsed in the West, the medieval Catholic Church inherited the role of unifying and transmitting this conception of the social world. In the collapsing West, Augustine (354–430) de-divinized the state and asserted the supremacy of the spiritual church. The Eastern Empire lasted longer and preserved the traditional unified vision with the head of the state as the head of the church (Orthodox Christianity, later Russian Czar). Three important historical events defined the Continental legal tradition. First, the ‘Germanic’ tribes that invaded Western Europe during the collapse of the Roman Empire abandoned important aspects of their legal traditions and gradually adopted for practical and political reasons the Roman and Catholic-influenced legal system that emerged from that collapse. Society and its institutions were understood,

4  THE ENGLISH LEGAL INHERITANCE 

97

within the philosophical and theological framework of St. Augustine’s Neoplatonism, as positing that all Christians are incorporated into the ‘body of Christ’ understood as a real entity.4 This is the original Catholic version of Oakeshott’s enterprise association in which society has a ­collective goal that supersedes and encompasses individuals’ goals. ‘The theological approach to scholarship interacted with the political aims of the Carolingians.’ The remnants of the Western Empire ‘needed a universal, total and immutable politico-ecclesiastic ideology or theology.’5 In this way, Anselm’s transcendent realism became the church’s official ideology.6 This version of holism lasted until the twelfth century.7 In no way are we denigrating or underestimating the importance or scope of Roman law. It remains one of the great accomplishments. Roman law was originally the product of the ‘pragmatic Genius of the Romans and not the systematic thought of the Greeks.’8 Roman law was a ‘system of legal remedies that had evolved historically in the context of specific legal disputes.’9 It is Roman law as transmuted by the church that led to a conception of ‘rule thru law’ that is very different from the English conception of the ‘rule of law,’ because of the legal philosophy, collectivism, and teleology that was incorporated along the way. The second defining event was the rediscovery of Justinian’s Code. What serves as the basis of the ius commune or the Continental legal tradition is not the Roman law of Cicero and Ulpian,10 nor Savigny’s recovery of the spirit and importance of Roman legal practice, but Roman law that was first subjugated to the church and then as expressed in Justinian’s compilations. Justinian (482–565) was the Byzantine Emperor who tried to reunify the Roman Empire. He also commanded the reorganization of Roman law in three parts: the Code, a compilation of imperial laws up to that time; the Digest or Pandects, a collection of the writings of Roman jurists; and the Institutes, intended as a textbook, explaining the Code. All three parts were intended to be the sole source of law; even reference to the original texts was forbidden. Justinian ‘tried to freeze jurisprudence.’11 Several things are worth noting about this Code. First, it was not simply a record of the practice of ancient Roman law in the West during the Republic and the Empire: It was a Code—the original code—an attempt to systematize the law by a fifth-century Byzantine Emperor under the influence of the Greek idea of a formal deductive system. Second, it presupposed the holistic unity of both the church and state, that is, society as a whole with the emperor as the final unimpeachable authority

98  N. E. NEDZEL AND N. CAPALDI

on what constitutes the law—understood as the fundamental norms of the social whole. If society is a transcendent whole, it makes sense to think that its fundamental norms can be systematized. Sometime during the eleventh century, the Code of Justinian was rediscovered in the West and became the basis of the Continental legal tradition, beginning at the University of Bologna. The Glossators were eleventh-century and twelfth-century scholars who studied Justinian’s reconceptualization of Roman law based on the Digest and the Code. The Glossators were firmly convinced that Justinian nullified previous norms; ‘Law is encompassed in a single book, the book does not have any contradictions and therefore forms a coherent mosaic, and every possible case can be traced back to the text by virtue of a befitting work of conceptual analysis.’12 Ius commune, the foundation of the Continental legal tradition, was a combination of the legal technique of Roman law and ‘the general principles’ of canon law.13 ‘[M]edieval jurists ascribed absolute authority to the Justinian texts’ that ‘bear witness to a perfect, timeless and universal law.’14 The later scholastic focus on the texts of antiquity was not seen as the legacy of a lost civilization but as ‘the source of a timeless and hence current truth.’15 Although a later Humanism would promote a somewhat different reading of those texts in which the non-Christian idea that man is perfectible was added, it did not replace scholasticism’s holistic and comprehensive worldview.16 Napoleon’s aim in producing his Code was that it would be universal, comprehensive, and portable—in fact he ‘ported it’ himself into Belgium, Luxemburg, Italy, and parts of Germany, and within the next century, most of Europe and Latin America had adapted a version of it or drafted their own codes, all of them intended to be holistic and comprehensive.17 The third important defining event was the reintroduction of Aristotle’s writings to the West.18 From the middle of the twelfth century, Aristotle’s works were recovered and translated into Latin. Aristotle similarly offered a holistic account of the universe and of society understood in teleological terms. The universe was one great chain of being19 in which everything had a purpose subordinated to an even higher purpose until we reach the Unmoved Mover. Later, Arabic, Jewish, and Christian scholars eagerly adopted his philosophical framework. The most influential20 Christian writer to do so was Thomas Aquinas. Aquinas re-conceptualized Christianity in Aristotelian terms. ‘Aquinas joined forces with the [transcendent] realistic mainstream….’21 Aristotle’s holistic vision of the human world, however, was secular. He saw the state (polis or political entity) as an all-encompassing institution

4  THE ENGLISH LEGAL INHERITANCE 

99

that (a) aimed at the highest good that (b) had as its special responsibility the task of making human beings virtuous. Aristotle’s views were enlisted in the ongoing struggle between the Papacy and the Holy Roman Emperor (Charlemagne, 742–815 A.D., was the first such monarch) as to which institution was supreme. By the time Western Europe was able to reassert itself against outside threats in the twelfth century, the stage had been set for continuing controversy between papal supremacy and royal supremacy. The earliest such conflict was the Investiture Controversy over which of the two institutions (state or church) had the power to invest and install church officials. At that time, generally the only people who were literate were the clergy, and kings had to rely on their skills to run their bureaucracies. Naturally, the kings wanted to choose their own clergy/bureaucrats, and just as naturally the Papacy wanted to maintain control over both clergy and state by making those appointments. Both sides appealed to Aristotle’s conception of unity but differed only as to which institution was to be supreme. Each side used Aristotle’s view in support of its argument for supremacy. As a consequence of Aristotle’s conception of unity, the claim that political organization came from man’s social nature provided a strong philosophical argument for an ascending theory of power that still preserved ‘the ultimate divine origin of political power…through God’s creation of man and human nature.’ Aquinas combined the two: The purpose of secular power [remains holistic—namely, the]—common good ‘bonum commune.’22 Thus, as a practical matter, kings eventually gained absolute power over their kingdoms, though it remained an issue for the entirety of the Holy Roman Empire. Nevertheless, subsequent arguments within the Catholic Church as to who has final say (Pope or Council) still assume a top-down holistic society with a supreme authority who speaks for the whole. To this day, the Pope believes that ideally, a world government should follow the advice of the church. For Aristotle, the political defines the ethical.23 This means that the individual is doing the right thing by acting consistent with the goal of the larger institution or largest institution. It does not mean that the individual should decide for himself what is right. Moreover, it is the responsibility of the state to make men good (a positive agenda not shared by Augustinian Protestants). One can easily spot a wide variety of European institutions that have inherited this holistic view: national economies, welfare state, the therapeutic state, etc. The state, as opposed to the church, ultimately prevailed, and the Monarch was understood to be the ultimate unimpeachable source

100  N. E. NEDZEL AND N. CAPALDI

and authority of the law, thanks (ironically and in part) to the spread of the ius commune.24 The combination of Justinian’s Code and the rediscovery of Aristotle did not lead to individualism but to a new form of communalism. On the Continent, this led to national unification, both politically and legally, and to the claim of royal absolutism. At no time on the Continent does the belief in a social whole expressing itself in a code ever disappear. Society is always top-down. Whether the political structure is monarchy, legislative supremacy, or Constitutional government, society is always a whole and its fundamental values are expressed in a systematic code by either the political ruler working with a special class of legal experts (theorists, and not practitioners to be sure) or emancipated (sometimes even from democratic elections) bureaucratic experts, as in the present-day case of Brussels’ EU functionaries. In due course, national or territorial monarchies prevailed. Aided by the Renaissance of classical thought and the rediscovery of Justinian’s Code (1070), the new national monarchies developed legal systems, expressed by the Italian Glossators, that reflected the notion that the king was both absolute and above the law. Justinian’s view of Roman law had a profound effect on the Continent of reinforcing the notion of central, top-down, administration expressed in deductive terms based upon some alleged abstract conception of the collective common good. The reintroduction of this version of Roman law never had the same profound effect on England because the English legal institutions began at approximately the same time, but they consistently stuck to indigenous habits, for complicated historical, cultural, and political reasons, even though Roman law was taught at both Cambridge and Oxford. The traditional civilian ‘inquisitorial’ procedure differs substantially from common law adversarial procedure: A judge or a panel of judges demand production of evidence, conduct trials intermittently over a period of time by demanding the parties’ appearances as each bit of evidence is produced, and then decide the case. The lawyers representing the parties have little or no discovery or production power, and can only ask the judges to investigate issues. This system developed out of the administrative powers exercised by feudal and Renaissance kings as well as the processes used by Catholic clergy.25 While conducting trials was originally part of the king’s police power, over time, rulers delegated that power to officials, and a stratified bureaucracy emerged.26 The bureaucratic nature of the civilian judiciary became even more entrenched after the French Revolution prohibited such judicial offices

4  THE ENGLISH LEGAL INHERITANCE 

101

from becoming either hereditary or salable, thus further reducing the prestige value of the judiciary to that of an ordinary civil servant whose job is merely to find the facts and then apply the volonté génerale as embodied in enacted law to the facts as the judges had determined them.27 They were not to ‘interpret’ that law (though it is now widely recognized in civilian jurisdictions that judges cannot avoid interpreting legislated law in the process of deciding cases). In civilian jurisdictions using inquisitorial-type procedures, the trial is an active state investigation, not a contest between parties, and truth is determined by the judges’ gathering of all available evidence. Applying legislated law is then regarded as a mere exercise in deductive logic, with no need for analogy or interpretation of that law. In contrast, in common law adversarial systems, the truth is a determination of which of the two conflicting positions is more likely to be factually accurate, then looking at how the appropriate legal principle has applied in the past to various factual situations, and then comparing the current fact pattern to those of prior decisions to see how the legal principle should apply in a way consistent with what came before. Neither civilian decision-­making nor the civilian judiciary developed as an entity separate from the ruler’s authority, as it did in England. It still maintains the same top-down character and grounding in deductive (rather than inductive) logic. Another significant difference between civilian and common law thought is the distinction between public and private law. Common law does not make this distinction. In contrast, civilian thought finds it important, again for historical reasons. At the beginning of the seventeenth century, politics was considered to be a civil virtue, one of the Aristotelian tradition’s five intellectual virtues, with the aim of governing citizen’s good behavior in the public sphere.28 Eighteenth-century thinkers split it into two separate studies: the theoretical science of public law, based on general principles and rational thought, and the practice of politics, defined as an ‘art of state’ or the means to make government effective, irrespective of whether those means are moral or immoral. The practice of politics was regarded with disdain, but public law was to be respected as a universal science. To be a ‘true’ science, universal public law had to identify the basic conditions for rights, law, and legitimate action, and consistent with civilian tradition, the only possible source of order within a civil society was the state, ‘which therefore had to be conceived as the first and fundamental premise for any theory of law describing itself as scientific: law was no longer thinkable without the state.’29

102  N. E. NEDZEL AND N. CAPALDI

Today, public law is often used, especially by Europeans, as a synonym for international law, though the concept was first proposed by Grotius as based on ‘some general consensus of opinion’ that ‘derive[d] its forceful authority from the will of all, or at least of many nations.’30 Thus, it was grounded in the natural law movement and is still often assumed by civilians to be both universal and at the pinnacle of force and importance. However, it has not been consistently interpreted that way in the United States, where Justice Story and the Supreme Court interpreted it as a habit of courtesy (‘comity’) among nations, asserting that the American Constitution and its distribution of authority have total dominance, and that no ‘community’ of nations may limit the discretion of the American Congress to make law for the United States, or force the courts to find against United States’ substantive law: ‘[W]hatever force and obligation the laws of one country have in another, depends solely upon the laws, and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.’31 The effects of Roman law and Greek philosophy (top-down collectivism, all-encompassing law, politics defining ethics) lasted on the Continent through the Reformation. Although the northern European national monarchies were unanimous in rejecting papal supremacy, Protestants acquiesced in national state supremacy. And while it is true that Henry VIII of England made himself the head of the Anglican Church, any British monarch by then was already recognized as limited by the constitutional inheritance. This was a lesson that the Tudors understood but that the Stuarts (under French and Catholic influence) were forced to (re)learn by both Parliament and judges like Edward Coke. Hence, the Reformation was very different in England as opposed to the Continent. Later political and legal scholars have downplayed these differences— if they even recognized them—because much of the prevailing scholarship has emphasized the replacement of monarchy by a triumphal democracy. This too is a reflection of the scholarly bias in favor of the assumed primacy of political institutions over legal institutions. As we shall see, the Anglo-American conception of the ‘rule of law’ is not tied to democracy, and it recognizes that majority rule is a threat to the ‘rule of law.’ Continental thinkers have tended to conflate democracy with some sort of collective good (e.g., Rousseau’s ‘General Will’). English history is not, like Continental history, a history of the movement from

4  THE ENGLISH LEGAL INHERITANCE 

103

absolutism to a collectivized democracy. It is a history of opposition to any sort of unlimited governmental power! The Holy Roman Empire’s failure to achieve political-legal unity led to the rise of sovereign national states, but this did not mean the end of communalism. The monarchs used Roman law to justify their absolute authority (‘the emperor IS the law’), sovereignty, mercantilism and used church doctrine to claim their divine right. Individualism did not calculate into their reasoning. As the secular state and science began to rise, principles derived from Roman law started to be separated from religion and morphed into natural law, but Greek teleology remained. Grotius cherished the ambition to turn law into a systematic science based on natural law32; Leibniz claimed that law should be systematized more geometrico and not the historical accident method of Roman law development.33 Later ‘Enlightenment thinkers believed in the possibilities of intellectually construing a rational legal system which … would be timeless, universal and comprehensible to all.’34 ‘The conception of private law expressed by German jurists [in the latter half of the nineteenth century] … did not place the absolute freedom of the will and the sovereignty of individual autonomy at the centre; on the contrary, many authors insistently return to consider the limitations which the community, the safeguard of third parties and good faith all impose in respecting contracts and property laws.’35 Starting in the mid-nineteenth century, the newer codes wanted substantive changes based on legislation in order to achieve national unification.36 Legal positivism developed in countries with codes based on legislated positive law, itself based on science and not theological natural law of any kind. These systems regarded law as the product of an empirical science that allows for corrections and social technology. This legal positivism ‘is the carbon copy of positivism in the sciences. It seeks to turn the law into an empirical science along the lines of physics or biology. The subject matter of that science must confine itself to positive, observable law. This includes only those legal rules that have been introduced according to the formal procedures provided therefore in the legal system. In those countries where the law has been codified … legal positivism is the same as legislative positivism. All hierarchy of norms is internal to the positive law itself … legislative positivism is the transition into legal theory of the system of representative democracy combined with popular sovereignty.’37 The Pandectists built a complete and internally consistent legal system influenced by legal positivism; Jhering, a legal Pandectist, argued

104  N. E. NEDZEL AND N. CAPALDI

that legal rules should reflect the correct social interest. In Germany, law becomes an instrument of reform for Jhering (1818–1892). As a result of his influence, the BGB (initially adopted in 1894) incorporated an extremely abstract Pandectist arrangement of Roman laws and principles. The function of German Courts and the judiciary was initially reduced under the influence of positivists who regarded legislated law and legislative reform as the sole legitimate source of law. The function of jurisprudence was reduced to mere rationalization of legislation. That inheritance can be seen in the works of legal philosophers including Kelson, Hart, Raz, Rawls, and Dworkin (though Dworkin further ­posits that a political agenda could be invoked in adjudication where the ­legislature has refused, declined, or hesitated to pass such laws). All of this is perfectly compatible with the later recognition of ­individual rights (but only granted by and approved from the holistic perspective) and artificial contractual wholes as long as they are subordinate to the top-whole. Switching from Plato to Aristotle and from religious to secular authority never gets away from a holistic, top-down understanding of society and the law or even from a mercantilistic view of economics. When intermediate institutions become dysfunctional, or decline or disappear (e.g., church, family), the state absorbs their ­function—we are back to fulfilling ourselves only in the public political arena. Even the failure or collapse of the state leads to a newly theorized written constitution—another version of the holistic society. Scholars have begun to date the appearance of individualism earlier and earlier.38 Gierke believed that monarchs exploited this in order to undermine intermediate institutions. However, what the monarchs accomplished was changing the location of the whole to the state rather than the church. Even Rousseau did so. Perhaps the most remarkable version in modernity is Rousseau who articulates both a recognition of individualism (with its influence on Kant) and a denial of teleology in nature as expressed in Newtonian physics. Was Rousseau thereby led to deny community? The answer is ‘no.’ Instead, he appealed to the Platonic/Calvinistic notion of a holistic society that we literally ‘will’ into existence, namely the ‘General Will.’ The difference between Rousseau on the one hand and Hume/Smith, on the other is that the latter believed that genuine benevolence was limited and could not be expanded to the whole of society or the world; instead, they emphasized the capacity of individuals to negotiate. There is no question that significant Continental writers such as Montesquieu,39 Hegel, and Tocqueville among others, understood

4  THE ENGLISH LEGAL INHERITANCE 

105

individualism and even promoted the idea of the ‘rule of law.’ But always they did so by reflection on England, and in every case, their thoughts failed to prevail in their home countries. The current controversy involving Brexit (Britain’s withdrawal from the EU) reflects the above. Continental bureaucrats cannot conceive of a group of nation-states cooperating in some areas but maintaining sovereignty in others. Those who voted in favor of Brexit cited as their primary reason for doing so anger at the EU’s issuance of top-down legislation that violates the traditional British understanding of law.40 England’s history is completely different. It is always bottom-up, not top-down; individualism is part of the culture, not a philosophical add-on; it always objected to papal and royal absolutism; it never fully surrendered the idea that law is rooted in secular custom, that it evolves (it does not progress) one case at a time; the most important figures and articulators are practitioners (like judges) not theorists. This is reinforced by the nominalist bent of its philosophers. The Protestant Reformation fell here on fertile ground. Henry VIII banned the universities from teaching canon law and the Augustinian bent (role of government is negative, i.e., to punish the bad guys and not positive—to make men virtuous) is secularized by Milton, Locke, and finally Mill to raise individualism to the highest level. England was unified by the common law (Henry II made the common law the basis of legal unification in England) and needed neither Justinian nor the rediscovery of Aristotle. In contrast, the first continental country to unify its law was France, under Napoleon. Prior to that, most continental countries had three sources of law: the ius commune applied sometimes, canon law other times, and local custom still other times. English law’s greatest moments may be Magna Carta and the other constitutional documents and the writings of Coke. Its most notable and different institutions are the absence of both a code and a written constitution; no clear separation between public and private law; the eminent role of judges; the marginal role of doctrine and legal academia; the practical training of jurists.41

Time Immemorial ‘Time Immemorial’ refers to unwritten customary English law before Richard I’s accession to the English throne in 1189. As Blackstone put it in 1765, it was ‘a time before legal history and beyond legal memory.’42 Nevertheless, we know a great deal about time immemorial, and what we know is significant for understanding the English legal inheritance.43

106  N. E. NEDZEL AND N. CAPALDI

English common law cannot be explained without reference to the Anglo-Saxons (Germanic tribes)44 who settled in England in the fifth century—during time immemorial. It is a main historical and philosophical thesis of this book that (a) ‘Germanic’—in Tacitus’ sense—thought (inductive and analogical) is fundamentally different from Greco-Roman thought (deductive→codes); (b) the Germanic tribes that settled on the European continent assimilated Greco-Roman thought, but (c) the Anglo-Saxon tribes that settled in England alone preserved many of their traditional ways of thinking (epistemological, political, legal, etc.), and (d) this is the origin of the difference between the common law and the civil law inheritances. This also will explain the uniqueness of the ‘rule of law’ in the common law. Alan Macfarlane,45 British anthropologist and historian, traces the origin of individualism in England to as early as the thirteenth century: ‘Society is constituted of autonomous equal units, namely separate individuals….It is reflected in the concept of individual property, in ­ the political and legal liberty of the individual…’46 Macfarlane favorably cites Montesquieu and Tacitus as explaining what happened before the thirteenth century. Montesquieu (1689–1755) travelled from his native France to England in order to study the formation of a constitutional monarchy in the wake of the Glorious Revolution (1688–1689). This became the basis of his advocacy of the doctrine of the separation of powers. Following the publication of Considérations sur les causes de la grandeur des Romains et de leur décadence (Considerations on the Causes of the Grandeur and Decadence of the Romans, 1734), his writing of the Spirit of the Laws (published anonymously in 1748) was motivated in part by the desire to see a similar development in France. Citing Tacitus, he claims that the ‘English have taken their idea of political government from the Germans. This fine system was found in the forests.’47 The Germanic nations who conquered the Roman Empire were very free, as is known. On the subject one has only to see Tacitus on the Mores of the Germans…. When they dispersed during the conquest, they could no longer assemble. Nevertheless, the nation had to deliberate on its business as it had done before the conquest; it did so by representatives. Here is the origin of Gothic government among us …. it is remarkable that the corruption of a government of a conquering people should have formed the best kind of government men have been able to devise.48

4  THE ENGLISH LEGAL INHERITANCE 

107

Montesquieu claims that there is an intrinsic connection between this kind of government and commerce: “England has always made its political interests give way to the interests of commerce….This is the people in the world who have best known how to take advantage of each of these three great things at the same time: religion, commerce, and liberty.”49 Later in this book, we shall argue that the ‘rule of law’ as understood in the Anglo-American legal inheritance is more commerce friendly and more directly useful to economic development. “[T]he laws of the Barbarians were all personal …. I find the origin of this in the mores of the Germanic peoples …. All these people, taken individually, were free and independent …. Therefore, there was a spirit of personal laws among these peoples before they left their homes, and they took it with them in their conquests.”50

Romans vs. Germanic Tribes51 The Romans’ conquest of Britain began in 43 A.D., but was abandoned in the early fifth century. As the Romans left, the Anglo-Saxons settled Britain and thus began the origin of England and the English language. For approximately six centuries, England was without any serious Roman presence. When the Normans conquered England in 1066, they maintained most of the Anglo-Saxon institutions. They did so for a number of practical reasons. The preexisting shire-based tax-collection system was better developed than its Norman feudal counterpart, and upholding preexisting laws and customs helped the Norman kings maintain authority.52 Furthermore, the Normans were technically vassals of the French king and any introduction of a full-blown Continental system would have undermined their position as kings in their own right. Ireland and Scotland differed from England. Ireland was largely influenced by a dominant Roman Catholicism that did not extend to England. Scotland’s origins are also Gaelic and influenced by Irish missionaries. It should come as no surprise that the legal systems of Ireland and Scotland are much closer to Continental practices. In short, the absence of a strong Roman and Catholic Christian tradition explains a large part of the uniqueness of Anglo-Saxon culture. Greco-Roman thought asserts the existence of a cosmic order independent of individuals and social organizations. Christianity will come to understand itself in Greek philosophical terms—there is a cosmic order.

108  N. E. NEDZEL AND N. CAPALDI

Who articulates the cosmic order? From the time of Constantine, the cosmic order was articulated by a single individual (King or Pope)— ideally the same individual is head of both church and state (Orthodox Christianity in the Eastern or Greek Mediterranean). Whatever truce may emerge from time to time in the Western (Latin) part of the old Roman Empire (Holy Roman Empire), both the head of the church and the head of a state or empire periodically reassert single headship. The Romanization of the Germanic tribes on the continent is the origin of some form or other of Continental (Civilian) collectivism. Christianity in this respect contributed to collectivism. The Germanic tribes (Tacitus) originally differed. They did not assert a cosmic order. Norms (and therefore laws) were imbedded in prior practice (custom). The members of the community as a whole must all agree in cases of dispute. The king is merely one member, his role is an elected one at that, and he could be (and was) ‘un-elected.’ The process of arriving at the resolution of disputes is itself a product of the explication of previous practice. The law is not the product of anyone’s will—individual or collective. It is originally unwritten; it is ‘found’ (by explication of previous practice) not made. From the thirteenth century when Edward I first started calling meetings of commoners and nobles in order to ask if he could impose a new tax or impose new law53 up to the seventeenth century, Parliament was thought of as a consultative or judicial body not a legislative body. There is no theory in the English legal inheritance that the community is a collective entity. It is made up of diverse individuals who understand themselves by reference to custom. There is no theory of custom. These features were preserved only by the Anglo-Saxons in Britain—this is the origin of the common law; reasoning by induction and analogy. While the same could originally be said of the Germanic tribes that overran the Continent, those tribes eventually accepted the Greco-RomanCatholic model. Since the Anglo-Saxons never succumbed to collectivism, we need to ask how and why they adopted full-blown individualism. The single most important philosophical factor seems to have been nominalism: Only individual things are real; individuals bear analogous relations to each other, not deductive ones. The application to law should be obvious. Anglo-American common law is case law, it is rooted in customary practice, cannot transcend its roots, and is reflected as well in the reliance

4  THE ENGLISH LEGAL INHERITANCE 

109

upon juries (beginning in the twelfth century with Henry II) as opposed to judicial experts. Starting with Augustine, the Christian God has free will, and He is linked to the human will. If humanity is made in God’s image, then human beings have free will. When Ockham combined this Augustinian insight with nominalism (only single entities are real), we arrive at individualism. Moreover, it is each individual who possesses a soul and not the community. The return of Calvinist Protestantism to Augustine and its rejection of Thomism reinforced individualism. It is in AngloProtestant cultures that the English legal inheritance flourishes. In this sense, Christianity contributed to individualism.

Common Law England was conquered by the Normans, under William the Conqueror, in 1066. The Normans did not impose an entirely new legal system but maintained a large part of what was already accepted practice. William had the laws current under Edward the Confessor (last Anglo-Saxon king) recorded in a law book entitled Leges Edwardi Confessoris, a work that did not appear under King Edward the Confessor (1042–1066), but was anonymously collected around 1130. The key figure in the transition from time immemorial to the common law was Henry II. It was Henry II (1133–1189) who standardized English law into what we now call the ‘common law’ by insisting on written records, appointing judges as part of the royal court, holding regular meetings of courts, and incorporating the consistent use of itinerant juries (instead of trial by ordeal). The expression ‘common law’ was introduced in 1189. Henry’s legal changes are reflected in the Treatise on the Laws and Customs of the Kingdom of England (Glanvill 1190). It was Glanvill who, in his Prologue, said that English laws were originally unwritten. None of this is legislation; none of this amounts to a code; none of this reflects the whim of the king or the barons. ‘Common law’ refers specifically to the law that emerged in the Court of Common Pleas (not the Court of Chancery, the ecclesiastical courts, or the Admiralty court). It refers in particular to judge-made law as opposed to statute law. The judges originally appointed by Henry II were not trained in canon or civil law and thus short-circuited any extensive penetration of Roman law.

110  N. E. NEDZEL AND N. CAPALDI

Henry de Bracton (1210–1268) was the author of De Legibus et Consuetudinibus Angliae (‘On the Laws and Customs of England’ collected between 1235 and 1260), the first collection of case law including the transcripts of the pleadings in previous cases, an evaluation of previous decisions, and an analysis of the legal reasoning employed by judges. In so doing, he revolutionized English jurisprudence by establishing how previous decisions, in inductive manner, establish an analogy for future cases. A further consequence was that the common law became the model for subordinate courts. This meant that ‘local government … could act freely, subject only to the control of the common law courts. They were subordinated to the law without losing their individual character and their independent life … the self-government which is ­characteristic of the English system of local government was secured.’54 Just as important was Bracton’s insistence that the king, while not under any man, is nevertheless bound by the law: ‘for there is no rex where will rules rather than lex.’55 Bracton reversed Justinian’s maxim that the will of the prince is law by arguing that the king is under the law. This is the origin of the view that law trumps politics.56

Magna Carta On 15 June 1215, at Runnymede, King John of England consented to an agreement with his rebellious barons. Among other things, the charter protected the barons from illegal imprisonment (the right to habeas corpus), guaranteed access to swift justice, curtailed the king’s ability to levy taxes without the approval of a Parliament of lords, and made it clear that no one, including the king, is above the law or can take it into his own hands.57 While the privileges extended originally only to the barons, as everyone concedes, the document took on a life of its own and evolved over several centuries into the basis for many English liberties and the ‘rule of law.’ More analytically inclined scholars like to emphasize that the original document did not contain all of the things and meanings it came to encompass over time. This reflects an obtuseness about the English mode of thought. The document proved to be, using Oakeshott’s terminology, a fertile source of adaptation. It is, in the terminology of spontaneous order, a set of practices that were gradually extended. It is a microcosm of how English law developed through continual adaptation and reinterpretation.

4  THE ENGLISH LEGAL INHERITANCE 

111

Why is this important? It is important because there is no exact analogue to Magna Carta, either earlier or later, on the continent of Europe where medieval practices evolved into absolute government. There is no evolution in the civilian legal inheritance that moved in the same direction or borrowed from the English model (despite the efforts of much later early modern thinkers such as Montesquieu).58 On the contrary, the opposing analogue was Justinian’s Digest recovered on the Continent in 1070. That Digest, and other related writings, put the emperor above the law. This is a major source of the Continental legal inheritance. Justinian’s views were not adopted by the English. ‘[A]t no time after, at least, the papal interference in the English politics of the first half of the thirteenth century, was the citation of Roman canonical authority acceptable in our country, save so far as it was necessary for strictly technical purposes. Besides, as such citation might have been construed as a renunciation of independence, or a submission of questions of general policy to the judgment of the Church.’59 There has never been an English Revolution comparable to the French Revolution. The English have always been able, despite serious conflict such as the civil war that took place before the Glorious Revolution of 1689, to evolve changes in a manner that preserves coherence with the past. There is something to be said for ‘muddling through.’ Focusing on the original range of liberties in Magna Carta totally misses the fundamental cultural differences. To do so is to turn the document into an intellectual construct without context. Early on, through recorded judicial decisions, the English developed a centralized body of law. However, it has never been part of the English psyche or history to accept the centralization of power; primarily, we suggest, because the Anglo-Saxons, with some help from the Normans, retained their original mores. At least from the thirteenth century onward, the major English intellectual tradition has been nominalist, inductive, analogical, and increasingly individualistic. Anti-centralization evolves into fullblown individualism. England was never an enterprise association; in the modern world, it can only be a civil association in Oakeshott’s sense. It should come as no surprise that Magna Carta as a document becomes a historical reference point for the evolution of English culture and law. It is the ultimate prototype of the development of the English legal system, not a myth. In 1354, clause 29 of the Magna Carta was changed from ‘free man’ to ‘no man, of whatever estate or condition he may be.’ It also

112  N. E. NEDZEL AND N. CAPALDI

substituted ‘due process of law’ for ‘lawful judgement of his peers or the law of the land.’ In English law, this will evolve into what Dicey understood as the ‘rule of law.’ According to Coke, between the thirteenth and fifteenth centuries Magna Carta was reconfirmed 32 times. In the early seventeenth century, Magna Carta became increasingly important as a political document in arguments over the authority of the English monarchy. James I and Charles I both asserted the doctrine of the divine right of kings, but Magna Carta was cited by their opponents to challenge the monarchy. Magna Carta asserted and protected the liberty of individual Englishmen, made the king subject to the common law of the land, formalized trial by jury, and acknowledged the ancient origins of Parliament. Because of Magna Carta, no English monarch was able to alter these long-standing English customs. John Fortescue (1394–1479) was the author of influential treatise on English law De Laudibus Legum Angliae (Commendation of the Laws of England) published posthumously in 1543 and later published as The Difference Between an Absolute and Limited Monarchy (1714) and as The Governance of England (1885). His works explain the difference between an absolute monarch (France) and a limited monarch (England) and extol the virtues of the English common law as superior to Roman civil law. No previous ‘writer on political theory had envisaged such a form of government.’60 The Justinian view was championed on the Continent by Bodin’s 1576 publication The Republic, in which the king becomes identical with the state. As Louis XIV later quipped, ‘L’État, c’est Moi.’

Fundamental Tension(s) We here interject some important terminological and conceptual distinctions. These distinctions are important both because failure to make them leads to confusion and because these distinctions will help to clarify the meaning of the ‘rule of law.’ Law/Legal System (Legislation, Adjudication, administration, rule of law)61 Laws are rules. The LAW is a system of rules. Legislation is the power of making and unmaking of the rules. Adjudication is the application of law to a specific case—an activity different from legislating. Adjudication invokes not only present

4  THE ENGLISH LEGAL INHERITANCE 

113

or recent legislation but all previous legislation (as Coke once reminded James I that what previous Kings had decreed was also the law). Past laws or legislation can be amended but the amendment process must also follow some rules/norms. Whether they were properly followed in a specific case is again an act of adjudication. Adjudicative decisions are in a special sense LAW or part of the LAW but not new laws. Administration of the law (police, prosecutors, etc.) is a third and different activity. The major tension in the history of English law is over who has the power to legislate. A number of English kings and their supporters (Bacon, Hobbes) claimed that power, as did Parliament (Hale, Coke). Parliament eventually prevailed.62 The issue was not whether there should be an authoritative legislator but who holds the power of legislation. Here one glimpses a distinction between the role of the executive and the role of the legislator. One thing that adds a further element of confusion is that Parliament was originally understood as a judicial (adjudicative) body. Over time, the judiciary (judging or adjudicating) was understood to be different from making law. Here emerges the distinction between the legislator and the judge. In addition, the making of laws must follow its own set of rules, so there will be a need for some judicial or adjudicative way of determining if the law had been properly created. This creates the need for a second kind of adjudication not to be confused with the first. Another complication is that new laws have to be consistent and coherent with older laws. Again, this underlines the crucial role played by judges. In exercising their judgment, judges may be tempted to usurp the role of the legislator. Both the executive and the legislator may feel the need to restrain this possible usurpation, but the primary restraint on judicial legislation is undoubtedly the tradition of ‘finding’ the law of previous cases through research into prior decisions, writing out the decision, and explaining how that law was ‘found,’ as well as trial judges’ universal dislike for being overturned on appeal. Those who are impatient to reform their society or government or legal system will be attracted by the following set of ideas: (a) There should be some (once and for all) fundamental truths about human nature such that we can access them scientifically (gain consensus verification); (b) these truths should form (once and for all) a deductive

114  N. E. NEDZEL AND N. CAPALDI

system such that all inferences and applications can be rigidly and consensually verified. Continental codes are designed to accomplish (b) and positivism hopes to provide (a). This type of system provides no inherent limit on what the government (ultimate and over-riding legislative power) can do as long as it followed the rules (‘rule thru law’). This is a way of reducing adjudication to legislation, or, in other words, subordinating law to politics. In contrast to impatient reformers, those who want to defend the ‘rule of law’ will emphasize that all thinking, and most especially legal thinking, takes place against an evolving system of norms that springs from or ultimately creates spontaneous order (time immemorial).63 The history of law and its inherent norms become integral to the law itself (Fortescue, Bacon, Coke, Hale, Maine, Maitland, Pollock, Hayek,64 and Oakeshott65).66 The major upshot is that the normative framework cannot (a) be ignored, or (b) be constructed de novo or (c) evaluated from an Archimedean perspective. This is what Hayek and Oakeshott capture in their reasoning about spontaneous order and why law cannot be understood from a purely scientistic or positivistic or analytic perspective.

Francis Bacon (1561–1626) ‘[T]he seventeenth Century is the key to the whole history of England.’67 According to Holdsworth, Bacon’s De Augmentis contains the ‘first critical, the first jurisprudential, estimate of English law….’ Bacon suggested a recasting of statute law as a book of Institutes for learners based on a plan that resembled the latter work of Blackstone’s Commentaries— in other words, a book of legal history explaining the general principles underlying legal rules and including a legal dictionary.68 Bacon was also a great advocate of the Court of Equity, a special court designed to deal precisely with those cases that did not fit easily into existing law. As a nominalist, Bacon recognized that law could not be reduced to a deductive system and the Court of Equity managed such conflicts.

Edward Coke (1552–1634) Coke was, arguably, the most important of all British jurists. His remarkable and colorful life saw him serve as advisor to two monarchs, a judge, a member of Parliament, and even a prisoner in the Tower.

4  THE ENGLISH LEGAL INHERITANCE 

115

Sir Edward Coke, Bacon, and Thomas Hobbes interacted with each other. For years, Bacon vied with Coke for top positions in government, at one point manipulating him out of office. As a young man, Hobbes served as Bacon’s secretary (his amanuensis). While neither Bacon nor Hobbes respected Coke’s legal reasoning or thoughts about government, ironically, much of their thinking was consistent with his, and Coke’s achievements had a profound effect on the British ‘rule of law.’ Coke’s list of accomplishments is truly impressive: (1) restricted the Star Chamber—reinforcing habeas corpus; (2) in Dr. Bonham’s Case, he declared the king to be subject to the law and even the acts of Parliament to be subject to judicial review; (3) as a member of Parliament, he supported the Statute of Monopolies, which limited the king’s power to grant patents; (4) he insisted on the distinction between legislation and adjudication by maintaining that the king in his own person cannot judge any case, as this ought to be judged in a court of justice, according to English Law and Custom; (5) in the Resolutions, he insisted that Magna Carta was still in force, and that any freeman detained in prison without cause being stated should be entitled to bail or be freed; (6) in the Petition of Right (1628), he outlined an extensive list of the rights and liberties of free Englishmen. Along with Magna Carta and the 1689 Bill of Rights, the Petition became one of the three constitutional documents of English civil liberties. In addition, (7) Coke made the common law fundamental to all other forms of English law such as Admiralty law. Thus, the history of English law shows, as understood by Coke and others, the increasing emphasis on individual liberty and not, as on the Continent, a progression from absolute monarch to democracy. It was Coke who in the seventeenth century made Magna Carta a symbol of English liberty. Nevertheless, given the historical context prior to and during the thirteenth century that we have cited, it is clear that there are historical and intellectual resources available to the English that were not available to the continent. In this very important sense, Coke did not mischaracterize Magna Carta.69 Although the idea of an ancient unwritten constitution may be somewhat mythical,70 the ancient practices of the Anglo-Saxons were not myths, and they supplied the customary basis that produced a legal system fundamentally different from those on the continent.71

116  N. E. NEDZEL AND N. CAPALDI

Thomas Hobbes72 The earliest formulation of the ‘rule of law’ in the English legal inheritance is to be found in Hobbes. His three necessary and sufficient conditions of the ‘rule of law’ are: (1) an office with the authority to make authentic law (sovereign73); (2) an office of adjudication; (3) an administrative office. What makes the law authentic is that it is the product of a state [civil association74] ‘composed of personae related solely in terms of obligations to observe in all their self-chosen conduct certain non-­ instrumental (that is moral or procedural) conditions prescribed by a sovereign legislative office expressly authorized’75 to do so. As these rules are non-instrumental, no further philosophical or theological account or justification was necessary76; in fact, such speculation would be a threat to stability. Basing law on reason promotes anarchy. It is not wisdom but authority that makes a law. Law must be established by the sovereign authority; binding (unlike unsanctioned natural law); and independent of a private moral dimension. Hobbes opposed custom as a source of law, opposed the notion of jurists as privileged interpreters of the law (here following Bacon). He opposed Coke on the supremacy of the common law and insisted upon the importance of equity. Hobbes recognized the role of adjudication, as did Coke, but pointed out that judicial decisions were valid only if tacitly confirmed by the sovereign office. Hobbes did distinguish between lex (statutory law) and ius (subjective right). Hobbes sometimes employs the language of natural law to make his points; nevertheless, he rejects the medieval notion of a common or collective good. His rejection reflects his view that universal substantive agreement is never possible and any attempt to achieve it would ­provoke unnecessary conflict and self-destruction. Internal disorder is as much a danger as foreign threat, perhaps more so. In his positive analysis, the origin of the commonwealth is irrelevant, while sustaining it is primary. The commonwealth can only be sustained if there is agreement on procedural norms. What are these procedural norms? First, it must be, obviously, a civil association (not a collective good). Second, the sovereign’s role is to sustain/remake/make the laws. Third, there must be no ambiguity as to who is authorized to exercise the sovereign role [legislative function needs to be distinguished from the adjudicative function]. Fourth, equality under the law is a necessity: ‘the basic purpose of law-making is … to preserve the commonwealth, and this

4  THE ENGLISH LEGAL INHERITANCE 

117

means neither making laws for …[the sovereign’s] aggrandizement at the expense of subjects, nor laws at the expense of some subjects in favor of other.’77

Matthew Hale In his A History and Analysis of the Common Law of England, published in 1713, Hale (1609–1676) distinguished between written laws, such as statutes, and customary, unwritten laws. He posited that the common law was subject to Parliament, and that the law should protect the rights and civil liberties of the king’s subjects. He also argued for the confirmation of trial by jury, which he described as the best mode of trial in the world. During Hale’s period as a barrister and judge, thanks to Sir Edward Coke’s legacy, the general conclusion in England (in contrast to Renaissance Europe) was that the repository of both law and conventional wisdom was not politics, but the common law. Coke’s Institutes and practice as a judge advocated ‘judge-made’ law. Coke asserted that judge-made law had the answer to any question asked of it, and as a result, a judge was the natural arbiter of politics. While the judges did make law, this was only valid because it was tacitly confirmed (because not disapproved of) by the [King]. In 1835, Hale’s ‘Reflections on Hobbes’ Dialogue’ was discovered. Hale had agreed with Coke that the judge’s task was to bring the reason of the common law (the coherence of the legal system) in line with the reason of the law in question. In other words, the judge’s task is to verify that the legal principle he is basing his decision on is consistent with and developed from the common law. He must justify his decision by showing the evolution of norms that led to that principle. As Hale pointed out in criticizing Hobbes: [T]hey that please themselves with a persuasion that they can with as much evidence and congruite make out an unerring system of laws and politiques equally applicable to all states as Euclide demonstrates his conclusions, deceive themselves with notions which prove ineffectual when they come to particular application.78

Hale’s response is that customary laws are not deductions from a rule but the consequence of a sequence of specific practical decisions.79 As in

118  N. E. NEDZEL AND N. CAPALDI

what Coke said in the Bonham case, the Reports reconstruct the entire common law; familiarity with past decisions is essential: ‘out of old fields must come the new corn.’ One of the first modern authors to use the expression ‘rule of law’ was Samuel Rutherford in Lex, Rex (1644), meaning ‘the law is king’ as opposed to the traditional formulation rex lex (‘the king is law’). James Harrington, in his Oceana (1656), argued that an ‘Empire of Laws, and not of Men’ was preferable to an ‘Empire of Men, and not of Laws.’ The expression ‘rule of law’ appears in Samuel Johnson’s Dictionary (1755).

Hume ‘Liberty’ is a product of spontaneous order. There is no positive (or essential) definition of ‘liberty.’ The absence of liberty can be defined as either (a) the violation of a previously agreed-upon way of engaging in exchange or the failure to fulfill an obligation or (b) the imposition of new requirements or restrictions to which we have neither overtly consented nor acquiesced over time. What we can identify over time are acts of injustice. It is through the perceived violation of a practice that we are led to articulate the practice. That is why it is sometimes easier to talk about our specific liberties. Our specific liberties are explications of practices that have ­developed over time. This is most clearly reflected in the unique history of England’s common law. Hume’s History of England is so important because it is an evolutionary account of things like the ‘rule of law’ and political procedures that have turned specific past practices into overt legislative processes. As a nominalist, Hume would insist that no concept can be turned into a timeless abstraction. The attempt to do so in the case of normative concepts like ‘liberty’ is a camouflaged attempt to impose a private political agenda by appeal to an abstraction. Analogously, this reflects the same conflict between the concepts of negative rights and positive (abstract, specified) rights. ‘Liberty’ is akin to negative rights. Hayek tried to capture this same point in his discussion of ‘coercion’ in the Constitution of Liberty. In similar fashion, Oakeshott’s concept of ‘civil association’ is best defined negatively as the absence of an ‘enterprise association.’ Those who object to the lack of a clear positive abstraction either reject the notion of spontaneous order or have an alleged normative timeless abstraction in mind (fulfillment, happiness, natural law, salvation, human rights, equality, etc.).

4  THE ENGLISH LEGAL INHERITANCE 

119

What Hume opposed was the doctrine of an original contract, specifically one that enshrined in abstract form all of the liberties then enjoyed by Englishmen. An original contract taken literally is epistemologically antithetical to the idea of spontaneous order; is historically false; and lends itself as an abstraction to justifying revolutionary disorder. For that reason, he opposed Whig propaganda and the misrepresentation of the Stuarts. Nevertheless, he shared the notion of an evolutionary account with Blackstone who published shortly thereafter.

Blackstone A high watermark was reached in the eighteenth century with the publication of Sir William Blackstone’s (1723–1780) Commentaries on the Laws of England beginning in 1765.80 The very first chapter deals with the absolute rights of free individuals; the last chapter deals with the rise, progress, and gradual improvement in the laws of England. Although not original to him, Blackstone’s is best known for his statement that it is better that ten guilty persons go free than that one innocent person suffer. His book, Commentaries, was regarded as the leading work on the development of English law for over a century and was the primary work relied on by lawyers practicing during the US founding.81 Blackstone’s intended audience was gentlemen being educated in the universities to become leaders of their society. Further, he sought to replace the traditional university and clerical emphasis on civil and cannon law with common law. In his historical account, he notes the origin of common law in the Saxon law that antedates the Norman Conquest, and he emphasizes that continuity as the source of political liberties. He stresses the extent to which law evolves through the wisdom of generations of judges and that such evolution is far more effective than beginning the work of legislation afresh. ‘We inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant.’82 The modern inhabitant in this case lives in the rising commercial world of David Hume and Adam Smith.

Edmund Burke (1729–1797) In his discussion of law, Burke noted that law ‘like our language and our learning is a very mixed and heterogeneous mass; in some respects our own; in more borrowed from the policy of foreign nations, and

120  N. E. NEDZEL AND N. CAPALDI

compounded, altered and variously modified according to the various necessities which the manners, the religion and the commerce of the people have at different times imposed.’83 What Burke stressed was the constant re-adaptation (spontaneous order is not just about origins but ongoing development); law is not a matter of rigid preservation but continually adapted (compare Oakeshott’s notion of a fertile source of adaptation), ultimately sustaining a shared subjectivity and a source of national historical identity.84 Oakeshott will later maintain that the shared national historical identity is a civil association giving rise to the ‘rule of law.’

Lex Mercatoria Special recognition should be given the lex mercatoria, the commercial law developed over time by merchants in Europe during the medieval period. It evolved, like English common law, out of spontaneous order. It was based upon contractual freedom. It was a legal system developed and administered by the merchants themselves, with little or no government interference.85 It was not a defined, concrete body of law but rather a set of customs. English courts acquiesced in merchant customs that were in existence since time immemorial. It was under Lord Mansfield (1705–1793) that the lex mercatoria was fully integrated into the common law. The significant point here is that prior practice is foundational and needs no further justification.

Jeremy Bentham and John Austin Bentham (1748–1832) is famous as the founder of utilitarianism86 and as an influential social reformer. As such, he is completely out of sync with the mainstream of the English legal inheritance and an example of what Hayek and Oakeshott would call a constructivist rationalist. Bentham’s 1776 publication, A Fragment on Government, was a critique of William Blackstone’s Commentaries on the Laws of England. Specifically, Bentham attacked Blackstone’s defense of the common law, specifically judgemade law and Blackstone’s appeal to a kind of natural law. Bentham was a supporter of the Enlightenment Project (the belief in a social technology founded by a social scientific elite). In this, he very much reflected the Continental French intellectual tradition.87 And, indeed, his work was much more influential in France than in England,

4  THE ENGLISH LEGAL INHERITANCE 

121

even to the extent that he was declared an honorary citizen of France by pre-Jacobin revolutionaries. He took many of his ideas from Helvetius (a calculus of pleasure and pain, the greatest happiness of the greatest number), as well as d’Holbach, Condorcet, and Turgot (utility). Bentham coined the verb ‘to codify’ and was the first person to advocate the codification of English common law into a system of statutes. His advocacy was rejected in the entire Anglo-American jurisprudential world. On the other hand, it is claimed that he had an enormous influence on Napoleon and the French system of codified law.88 Dicey noted the debt collectivism owed to Bentham: ‘The patent opposition between the individualistic liberalism of 1830 and the democratic socialism of 1905 conceals the heavy debt owed by English ­collectivists to the utilitarian reformer. From Benthamism the socialists of to-day have inherited a legislative dogma, a legislative instrument and a legislative tendency …. The dogma is the celebrated principle of utility.’89 Dicey, in Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century, claimed that Bentham was responsible for turning liberalism from a protection against outside ­interference into government intervention (social technology). It is customary in legal literature and in the philosophy of law to cite John Austin (1790–1859) as a disciple of Bentham and Austin’s The Province of Jurisprudence Determined (1832) as the first published expression of legal positivism in English. Further, it is customary to cite H. L. A. Hart’s critique and emendation of Austin as the major and seminal work in English on contemporary analytic (positivism) jurisprudence. As will be discussed further in a later chapter, secularized natural law became the basis for social change. In the form of what is called the Enlightenment Project, law, rooted in some one or more of the social sciences—not religion or custom—becomes an instrument of social reform, both progressive and radical on the continent in the latter part of the eighteenth century. Law was no longer the command of God but rather the ‘command’ (because accompanied by sanctions) of an ‘enlightened’ sovereign either monarchial or legislative (Bentham). The Enlightenment Project is the origin of both Bentham’s thought and the later positivism that was adopted by Bentham’s successors. Hereafter, ‘positivism’ will carry the connotation of the Enlightenment Project social and political agenda of managerial reform by enlightened public servants. The alleged dispute between natural law and positivism is not

122  N. E. NEDZEL AND N. CAPALDI

about the separation of law and morality, nor about whether law is based on norms. It is about whether those norms reflect a traditional non-political domain. Nor is there an issue of whether positivists have a problem with norms. Positivists either offer a constructive rationalist account of morality/ethics or relocate the norms to the political domain and make politics the basis of law. We turn now, specifically, to John Austin (1790–1859). Austin published The Province of Jurisprudence Determined (1832), and this had long been considered his major work and an exemplification of Benthamism in law. However, in 1859, he also published A Plea for the Constitution. Scholars familiar with the latter were led to assert that in the later work Austin had abandoned Benthamite utilitarianism and positivism.90 Subsequently, other legal scholars ‘discovered’ that Austin had not really been a positivist even in his first work.91 Although we do not invoke morality in the application of law (adjudication), we do consider morality in determining what the law should be. For Austin, ethical norms must be the basis of legal and political institutions. Those norms are to be found in the unwritten British Constitution. The constitution is the product of spontaneous order ‘descended to them from preceding generations.’92 To echo Coke, any emendation must be consistent and coherent with those norms. To engage in reform on the basis of abstract theories, as the French had done, would lead to the destruction of society. Specifically, with regard to the difference in legal inheritances, Austin pointed out that ‘All the governments of the Western European nations, including those of France and England, bore in early times a strong common resemblance [Germanic Tribal law]. … the French … were unable to prevent the transformation of the originally limited monarchy into a monarchy substantially absolute … At the arrival of the Revolution of 1789 … they were compelled, therefore, to construct a government on the basis of political theory … they attempted to build a constitution on the natural rights of man and the natural sovereignty of the people; a jargon involving stupendous absurdities …. Applied to so vast a subject as the government of a great country, public utility … leads to differences of opinion which are all but invincible. A government adapted to so complicated a thing … is a work of generations; and the creation of such a government in pursuance of a plan, would suppose on the part of its authors a range of intelligence more than human.’93 This difference between the English conception of law and the French could not be clearer and is a crucial part of our theme.94

4  THE ENGLISH LEGAL INHERITANCE 

123

Twentieth-Century English Legal Thought up to Hart After Austin, English legal thought returned to Coke’s and Blackstone’s conception of the historic continuity of the common law. The key writers during this period were Frederic William Maitland, Sir Frederick Pollock, and Sir Henry Maine (a comparativist who had studied Savigny). Writing about the historical schools in general, Vinogradoff said: Instead of being traced to the deliberate will of the legislator, [law’s]… formation was assigned to the gradual working of customs…as regards the State, law was assumed to be an antecedent condition, and a consequence of its activity. In this way direct legislation was thrust into the background, while customary law was studied with particular interest, and regarded as the genuine manifestation of popular consciousness.95

F. W. Maitland Maitland (1850–1906), a student of philosopher Henry Sidgwick, was unsuccessful in gaining a fellowship in Philosophy at Trinity College in 1875 with his dissertation ‘A Historical Sketch of Liberty and Equality.’96 Maitland (by way of Gierke97) essentially introduced the notion of modern thought as dominated by the tension between two narratives.98 Oakeshott read Maitland as a student and admired his work as an historian. Oakeshott’s own distinction between civil association and enterprise association is a version of Maitland.99 In 1888, Maitland was elected Downing Professor of the Laws of England, at Downing College, Cambridge. 1908 saw the posthumous publication by his students of their edited lecture notes, The Constitutional History of England. Maitland recognized that the m ­ odern world was characterized by the emergence and dominance of m ­ arket economies, limited government, the ‘rule of law,’ and the cultural of personal autonomy. He raised the question of how and why this had happened. He was especially interested in understanding what held this world together. Maitland found his answer in the history of England. ‘He saw a basic liberty and individualism in England from Anglo-Saxon times onward.’100 Maitland stressed the extent to which English law differed significantly from that on the Continent.101 ‘From the earliest descriptions by Tacitus, individual ownership was the rule.’102 The crucial

124  N. E. NEDZEL AND N. CAPALDI

difference between Anglo-American law and Continental law was the existence in the former of something that could never have developed out of the Roman law that dominated and defined the latter, namely the trust.103 The trust allowed private individuals to come together104 and create an intermediate institution not originating in the state, thus ‘protecting the individual from the tendencies toward either political centralization or the overly powerful demands of a familistic or religious kind which stresses uniformity.’105 Maitland maintained that limited government had always prevailed in England because of the common law and was not just the product of the seventeenth and eighteenth centuries. ‘[I]n his posthumously published lectures, [Maitland’s] Constitutional History gave the classic proof that the constitution of the UK is a definite entity, even though tacit and procedural, to be deduced from custom rather than from any written document …. [He argued] that it is not the Enlightenment that had made individual liberty into the foundation of our political order, but the common law and parliamentary representation … [L]imited ­government had been the rule rather than the exception in England, that the rights claimed by seventeenth and eighteenth century theorists had always been implied in the common law … He emphasized equity and the law of trusts as singular achievements of the English genius – ways in which people combined for a common purpose without threats to, or permission from, the state. Those institutions caused the early emergence in England of a society in which free association and autonomous institutions limited the powers of central government.’106

Why is the History Important?107 Anglo-American culture and law prioritize individual freedom. Historically, that prioritization emerged in Britain in the tension between the crown and common law judges as well as Parliament. In a manner of speaking, this is a historical accident or spontaneous order—both the prioritization and how it evolved out of that struggle. This does not devalue the freedom; on the contrary, retrospectively it makes it all the more precious. What has also evolved out of that struggle is the supremacy in the Anglo-American world of the legislative branch of government. Where then does that leave the prioritization of individual freedom? It now rests on the fact that it is a cultural icon, for the legislature and for the

4  THE ENGLISH LEGAL INHERITANCE 

125

judiciary, and hopefully for every other part of the government bureaucracy and for other cultural institutions as well. Judicial supremacy was challenged as far back as Bacon and that challenge has been an ongoing feature of Anglo-American law. The loss of judicial supremacy does not endanger personal freedom as long as the prioritization of that freedom remains culturally entrenched. Furthermore, what would the history of the rest of the world be like if the foregoing had not occurred? Freedom in every form (political, economic, and personal) now exists in parts of the non-Anglo-American world (Western Europe, Eastern Europe, even Asia, Latin America, and Africa) but in varying degrees and with some notable absences. Clearly, the existence of freedom is not just the imitation of its Anglo-American success. It is the product of Allied (primarily UK and United States) victories in World War II and the Cold War and UK and US veto power in the UN. We postulate that there is no reason to believe that personal freedom would exist, persist, or have developed anywhere if it had not been for (a) the evolution of Anglo-American law and culture as well as (b) the hegemony of Britain in the nineteenth century and the United States in the twentieth century. Individual freedom now has a new challenge. It is not the supremacy of the legislature nor the erosion of Anglo-American hegemony. The new challenge (as explicitly identified by Dicey, Fuller, Hayek, and Oakeshott) is the rise of the bureaucratic state. This is reflected in two ways: both the endless growth domestically of administrative law, the nanny state, and the ‘deep state’; and the international economic emergence of state capitalism. In the latter, the entire national economy is government-directed not in the form of central planning, but as chief negotiator in trade treaties in a global economy. Intellectually, this is abetted by the faith in social technology or managerialism as it was articulated in the eighteenth-century Enlightenment Project of the French philosophes, nineteenth-century positivism, and twentieth-century forms of scientism (the philosophical error about which Hayek and Oakeshott warned us). The Continental division between public and private laws has led to the prioritization of public law (wherein public law includes both constitutional principles and politics) over private law. This prioritization as well as its reliance and faith in experts has led to the massive global growth of administrative law and a de-emphasis on and limitation of private liberty and enterprise. It is seen in the unexamined assumption

126  N. E. NEDZEL AND N. CAPALDI

that there is a collective common good (national, then regional, and then international), in the conceit that somehow there can be judges whose technical knowledge will enable them to make decisions that cohere with the common good while preserving individual freedom, and that ­inquisitorial procedure will magically and miraculously supplant adversarial procedure. What should concern us is the specter of the return of judicial supremacy in the guise of legal expertise for managing state capitalism (new socialism) perhaps in opposition to a recalcitrant democratic legislature that does not, according to the self-identified experts, understand the ‘true’ collective good as correctly as the ‘new’ judiciary.

Notes













1. ‘Government in this style [skepticism] is…primarily a judicial activity…. It sets a high value on precedent, but does not believe that the path of precedent leads to a specific destination…’ Oakeshott (1996, pp. 109– 110 referencing Holmes). 2. ‘[O]n the continent of Europe parliamentary institutions were in fact coeval with the full flood of rationalistic politics’ vs. English parliamentary institutions which sprang from the medieval concern ‘with the limitation of the exercise of political power and the opposition to tyranny’ Oakeshott (1947, p. 357). 3. ‘Behind Oakeshott’s attack on rationalism there lay a version of English history in which Rationalism was an alien, continental European phenomenon which had already got a pernicious hold on English life’ O’Sullivan (2003, p. 21). 4. Chroust (1947, pp. 423–452) and Wilks (1963, pp. 19–20). 5. Lesaffer (2009, p. 179). 6. Ibid., p. 238. 7. Black (1980, pp. 145–166). 8. Lesaffer (2009, p. 19). 9. Ibid., p. 100. Both Leoni and Oakeshott are effusive in their praise of this aspect of Roman law. 10.  Early Roman jurists never doubted that law was divine, universal, unchangeable, rational, hardly the product of legislation, but reflective of a people in its corporate capacity. 11. Lesaffer (2009, p. 111). 12. Padoa-Schioppa (2017, p. 95). 13. Lesaffer (2009, p. 266). 14. Ibid., p. 354. 15. Ibid., pp. 340–341.

4  THE ENGLISH LEGAL INHERITANCE 

















127

16. Ibid., p. 348. 17. Batiza (1984, pp. 680–681). 18. ‘…what the papal office had sought in vain in respect of a notional respublica Christi embracing all realms, was coming within the grasp of kings and princes in respect of their separate realms. And what has been said as long ago as the thirteenth century by those to whom Aristotle’s Politics had come as a revelation … that a civitas vel regnum was to be understood as itself a universitas and as a communitas perfecta, now began to be said with less hesitation and more conviction … Both Aquinas and Dante had recognized a commnitas politica as a totum engaged in a single endeavor: the pursuit of the true ‘end’ of man, ­vivere secundum virtutem in this world for the attainment of the ultima beatitudo post mortem. And they understood ruling to be something more than having the custody of a law and courts designed to assure the temporalis tranquillitas of subjects each of whom has a final cause of his own … Ruling was to have the custody of the material, moral, and spiritual welfare of a community with a teleology of its own and into which that of the individual has been assimilated’ Oakeshott (Oakeshott 1975, p. 223; see also pp. 280–281). 19. Lovejoy (1936). 20. In 1879, Pope Leo XIII declared that Thomas Aquinas’s theology was a definitive exposition of Catholic doctrine. 21. Lesaffer (2009, p. 247). 22. Ibid., p. 225. 23. For further discussion of this in contrast to Plato and other positions, see Capaldi (2009). 24. Lesaffer (2009, pp. 230–231). 25. Hildebrandt (2009, p. 53) (cited in Nedzel 2010 at text accompanying n. 132). 26. Damaska (1975, p. 540). 27. Hildebrandt (2009, p. 60). 28. Scattola (2009, p. 12). 29. Ibid., p. 15. 30. Rubin et al. (1988, p. 26). 31.  Ibid. Comments of Alfred P. Rubin citing and quoting J. Story, Commentaries on the Conflict of Laws (Boston 1834) sec. 23 at p. 24. 32. Lesaffer (2009, p. 449). 33. For France, see Jean Domat (2018). 34. Lesaffer (2009, p. 448). 35. Padoa-Schioppa (2017, p. 615). 36. Lesaffer (2009, p. 493). 37. Ibid., pp. 462–463.

128  N. E. NEDZEL AND N. CAPALDI















38. Black (1980). 39. See Levy (2015, p. 147) Rationalism, Pluralism, & Freedom (Oxford 2015) for an insightful discussion of Montesquieu as ‘a reformist ancient constitutionalist, hoping to restore pluralistic institutions [civil association] in a legally complex modern monarchy, for the sake of protecting freedom from absolute rule … drawing especially on the neglected final third of the book, a long and legal constitutional history of medieval and early modern France.’ Voltaire and the other philosophes were not happy with this. 40. Ashcroft (2016). 41. Padoa-Schioppa (2017, p. 212). 42. Blackstone (2016, vol. I viii; p. 281). 43. Hogue (1986). 44. Bede (2009, chapter 15). 45. We support Macfarlane’s interpretation despite the army of critics (Stone, Tawney, Hill, MacPherson, etc.) and previous writers (Marx, Weber, etc.) who believe that there must be a transition from medieval feudalism to modernity. In his many books and articles, Macfarlane has argued that England did not have a feudal peasant society; hence, it is not an accident that industrial capitalism appears there first. As far back as the fourteenth century at least, English society was mobile, had nuclear families, moral individualism, and owners were free to dispose of their property as they wished. We believe this fits perfectly with Ockham’s nominalism and what Siedentop said (2014, chapter 23). Macfarlane’s research and views have prevailed. See Sharpe 1999, Bennett & Lotus 2013, Ramsden 2017. 46. Macfarlane (1978, p. 196). 47. Montesquieu (1989, p. 166, Part II, BK. 11, chapter 6). 48. Ibid., p. 167. ‘Tacitus says that they [the Germans] gave their kings or leaders only a very moderate power’ (ibid., p. 306). 49. Ibid., p. 343 (Part IV, BK. 20, chapter 7). 50. Ibid., pp. 534–535 (Part VI, Bk. 28, chapter 2). Hume (1983) acknowledges a similar point; Turner (2018), the first great scholar of the Anglo-Saxons, argues this point at length. 51. For a more detailed treatment, see Hannan (2013). 52. Carpenter (2005) and Huscroft (2013, pp. 94, 327). 53. Hogue (1986, p. 71). 54. Holdsworth (1966, p. 44). 55. Bracton (1968–1977, vol. 2, p. 33). 56. Holdsworth (1966, p. 27). Under Edward I (17/18 June 1239–7 July 1307), legal reforms began to foreshadow the separation of the executive, legislative, and judicial institutions. 57. McKechnie (1914, p. 381).

4  THE ENGLISH LEGAL INHERITANCE 











129

58. ‘Common-Law thinking structured a notion of freedom different from that which took place on the continent….the subjective aspirations of individuals were channeled and guaranteed through a customary legal structure itself claiming to be the product of, and expressive of, the community comprising those individuals [Oakeshott’s civil association]….Such a tradition, still alive in France in the sixteenth century, was all but gone by the Revolution. In Germany, although there were theories of indigenous law, they were antipathetic to individual rights or political participation’ Hampshire-Monk (1996, p. 249). 59. Pollock (1904, p. 113). 60. Holdsworth (1966, p. 62). 61. Oakeshott believes that Hobbes was the first thinker to get all of these relationships right. 62. The Coronation Oath Act of 1688 mandated that William and Mary and their successors take a solemn oath at their coronation to rule according to the law agreed in Parliament. See Harris (2006, p. 349). There are some technicalities here in the Westminster system of the ‘King-inParliament’ that we cannot discuss here. 63. We cannot understand anything from an immaculately conceived contract or behind a ‘veil of ignorance’ anymore that we can understand, critique, or formulate any language independent of some pre-existing natural language (Wittgenstein, etc.). 64.  The foregoing conceptual relationships are reflected in the title of Hayek’s last major work of legal philosophy: Law, Legislation, and Liberty. 65.  Oakeshott’s early essay ‘A Philosophic Jurisprudence’ (1938) was an attempt, prior to his exposition of Hobbes, to delineate the different roles of analytic jurisprudence and historical jurisprudence. 66. Yoram Hazony (2018): ‘Consider the claim that the U.S. Constitution was a product of Enlightenment thought, derived by throwing out the political traditions of the past and applying unfettered human reason. Disproving this idea requires only reading earlier writers on the English constitution. The widely circulated fifteenth century treatise “In Praise of the Laws of England,” written by the jurist John Fortescue, clearly explains due process and the theory now called “checks and balances.” The English constitution, Fortescue wrote, establishes personal liberty and economic prosperity by shielding the individual and his property from the government. The protections that appear in the U.S. Bill of Rights were mostly set down in the 1600s by those drafting England’s constitutional documents—men such as John Selden, Edward Hyde and Matthew Hale’ (Wall Street Journal, 6 April 2018).

130  N. E. NEDZEL AND N. CAPALDI













67. Oakeshott (1921). 68. Holdsworth (1966, p. 108). 69. Hence our disagreement with Radin (1947). 70. See Reid (2005). 71. Pocock (1987) argued that the myth of the ancient constitution was challenged by scholars of the middle to late seventeenth century. See also Burgess (1993). Alan Macfarlane challenged Pocock by reference to Maitland. As Maitland says, it would be silly to minimize the achievement of the seventeenth-century antiquarians, but it would also now be equally foolish not to realize that they overdid the similarities between England and Europe. This over-stress had been absorbed and put into perspective by Maitland and co. They were aware of both the continuity that Coke and co. were stressing and also the family resemblances to French law. But what seems to have happened is that since Maitland the pendulum has swung back very far toward the idea of Medieval England as identical to Europe and a very different age. This time it is not the result of a ‘Reception’ of Roman law, but of sociology. But again, the basis of the rediscovery of the ‘great break’ theory is the belief that England must have gone through the same ‘stages’ as the rest of Europe. Macfarlane of course famously challenges the whole idea of moving through the same stages. 72. We here follow Oakeshott’s interpretation of Hobbes. There is some controversy over the relation between Hobbes’ Leviathan and his later work the Dialogue. We here follow the view of Cropsey (1971) that Hobbes was much more cognizant in the later work of a legal order based upon public opinion. 73. Hobbes preferred that this be one person, or the monarch, but allows that could be a legislative body, an aristocracy, etc. 74. According to Oakeshott, what is lacking in Hobbes is the notion that the state must be exclusively a civil association. 75. Oakeshott (1983, p. 170). 76. Oakeshott maintains that when Hobbes speaks of ‘natural law’ he merely identifies maxims of peaceful association. 77. T. Fuller (1990, p. 120). 78. Hale, ‘Reflections on Hobbes Dialogue’ in Holdsworth (ed.), History of English Law (London: Methuen, 1924), vol. V, appendix, p. 500. This is also cited by Leoni ([1961] 1991, p. 92). The difference between Hobbes and Hale may be more apparent than real. Pollock and Holdsworth (1921, p. 284) believes that Hale had misunderstood Hobbes’ doctrine of sovereignty. 79. Hale, Reflections, V, pp. 14–15.

4  THE ENGLISH LEGAL INHERITANCE 













131

80. Holdsworth (1966), one of Blackstone’s successors as Vinerian Professor, asserted that if the Commentaries had not been written when they were written, I think it very doubtful that [the United States], and other English speaking countries would have so universally adopted the common law. In the United States, the Commentaries influenced Alexander Hamilton, John Marshall, James Wilson, John Jay, John Adams, James Kent, and Abraham Lincoln and are still cited in Supreme Court decisions. 81. Two scholars who stress the continuity between common law and the US founding are James Stoner (1992) and J. P. Reid (2004). 82. Blackstone (2016, III, p. 268). 83. Burke (1999, iv, p. 416). 84. Hampshire-Monk (1996, p. 255). 85. See Benson (2011). 86. J. S. Mill repudiated Bentham in an essay entitle ‘Bentham’ (1838). It was recognized in the nineteenth century that Mill was not a utilitarian by both Jevons and Dicey. See Capaldi (2005). 87. Bentham was a ‘creature of the eighteenth century…the companion in thought of Helvetius, Diderot, Voltaire, and D’Alembert’ (Oakeshott 1991, pp. 137–139). Bentham’s French Enlightenment connection and his influence on (modern or redistributive) liberalism in France are detailed in de Champs (2015). Bentham favored a degree of equalization achieved through the redistribution of wealth (Kelly 1990, pp. 191–197). Equality is the default position. Utilitarianism presumes an equal distribution, barring proof that utility would not be served by such a policy. As Bentham (1996, II, p. 276) put it in Leading Principles of a Constitutional Code, ‘the more remote from equality are the shares … the less is the sum of felicity produced by the sum of those shares.’ Kelly (1990, p. 210, n. 4) also notes the similarity between Bentham’s theory of distributive justice and Dworkin’s theory of justice in the latter’s Taking Rights Seriously (1977). Bentham was a major inspiration for Hart. 88. Karl Marx’s (1991, p. 160) polemic against the French Code noted that it is an expression of ‘liberty, equality, property and Bentham.’ See Kelly (1990), for an extended discussion of Bentham’s relation to France. Kelly explains how Bentham developed an egalitarian theory of justice, aimed at securing the material and political conditions of each citizen’s pursuit of the good life in cooperation with each other. Keep this in mind when understanding Hart’s position. 89. Dicey (2008, p. 215). 90. Lotte and Joseph Hamburger (1985, chapter nine). 91. Freeman and Mindus (2013) see the articles by Mansilla, Rumble, and Dyzenhaus.

132  N. E. NEDZEL AND N. CAPALDI













92. Austin (1859, p. 37). Austin met with Savigny in Berlin in 1842–1843. Austin knew Tocqueville and read Tocqueville’s Ancien Régime (1856). 93. Austin (1859, pp. 40–41). 94. It is repeated by Hayek in many places, and Hayek (1961, p. 109) cites an 1849 statement by Francis Lieber making a similar point. 95. Vinogradoff (1999, vol. I, p. 128). 96. See Capaldi and Lloyd (2016). 97. Gierke, however, advocated a return to the collective medieval German folk community in opposition to the liberal, contractarian one. 98. See Capaldi and Lloyd (2016). 99. Our own thesis of two concepts, the ‘rule of law’ and the ‘rule thru law’, was inspired by both Hayek and Oakeshott. 100. Macfarlane (2018, p. 8). 101. Ibid., pp. 43–59. See also Macfarlane’s Chapter Six. See also the work of Bloch (1962). 102. Ibid., p. 59. Macfarlane cites Maitland’s History of English Law Before the Time of Edward I, with F. Pollock ([1895] 2010) as well as The Constitutional History of England (1946). Compare this to Ockham’s argument that individual human freedom entails private ownership and that possession may only be given up voluntarily. 103. See Runciman (1997, chapter 5 and pp. 66–70), for a discussion of the legal background to Maitland. 104. Oakeshott, in On Human Conduct (1975), stressed the extent to which private individuals could come together to form an enterprise with voluntary entrance and exit. 105. Macfarlane (2018, p. 153). 106. Scruton (2018, pp. 129–130). 107. History, like other disciplines, is subject to fashion. In the United States, it has become fashionable to denigrate the United States by focusing on the negatives and turning it into a grand narrative of oppression (this approach goes back to Beard but is now best represented by Howard Zinn). Apparently, this is the case with the UK. Davies (1999, p. 386) argues that English institutions are not continuous and particularly worthwhile. Previous historians, argues Davies, such as Maitland, have erred by being ‘misdirected by Whig bias, by Protestant prejudice, and by narrow English nationalism.’ Campbell (2000, p. xxix) counters Davies by insisting that there is ‘no sensible reason for avoiding studying history as…the history of liberty. And…the history of constitutional liberty has important beginnings in Anglo-Saxon England.’

4  THE ENGLISH LEGAL INHERITANCE 

133

References Ashcroft, M. (2016) How the United Kingdom Voted on Thursday … and Why, lordashcroftpolls.com (24 June 2016). http://lordashcroftpolls. com/2016/06/how-the-united-kingdom-voted-and-why/. Austin, J. (1859) A Plea for the Constitution. London: John Murray. Batiza, R. (1984) “The French Revolution and Codification, Comment on the Enlightenment, the French Revolution and the Napoleonic Codes.” Valparaiso University Law Review, Vol. 18, pp. 675–682. Bede. (2009) Ecclesiastical History of the English People. Oxford: Oxford University Press. Bennett, J. and Lotus, M. (2013) America 3.0 Rebooting American Prosperity in the 21st Century: Why America’s Greatest Days are Yet to Come. New York: Encounter. Benson, B. (2011) The Enterprise of Law; Justice Without the State. Oakland, CA: Independent Institute. Bentham, J. ([1838–1843] 1996) Leading Principles of a Constitutional Code. Collected Works. Oxford: Oxford University Press. Black, A. (1980) “Society and the Individual from the Middle Ages to Rousseau: Philosophy, Jurisprudence and Constitutional Theory.” History of Political Thought, Vol. I, No. 2, pp. 145–166. Blackstone, W. ([1765] 2016) Commentary on the Laws of England. Oxford: Oxford University Press. Bloch, M. (1962) Feudal Society. London: Routledge & Kegan Paul. Bracton, Henry de. (1968–1977) De Legibus et Consuetudinibus Angliae, 4 vols., ed. G. E. Woodbine. London: Selden Society. Burgess, G. (1993) The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642. University Park, PA: Pennsylvania State University Press. Burke, E. (1999) Select Works of Edmund Burke. A New Imprint of the Payne Edition. Foreword and Biographical Note by Francis Canavan. Indianapolis: Liberty Fund. 4 ‎May‎ ‎2019. https://oll.libertyfund.org/titles/659. Campbell, J. (2000) The Anglo-Saxon State. New York: Hambledon and London. Capaldi, N. (2005) John Stuart Mill. Cambridge: University Press. Capaldi, N. (2009) “Philosophical Amnesia.” Philosophy, Vol. 65 (Suppl.), pp. 93–128. Capaldi, N. and Lloyd, G. (2016) Liberty and Equality in Political Economy: From Locke vs. Rousseau to the Present. Boston: Elgar. Carpenter, D. (2005) The Struggle for Mastery: The Penguin History of Britain 1066–1284. London: Penguin. Champs, E. de. (2015) Enlightenment and Utility: Bentham in French, Bentham in France. Cambridge: Cambridge University Press.

134  N. E. NEDZEL AND N. CAPALDI Chroust, A.H. (1947) “The Corporate Idea and the Body Politic in the Middle Ages.” Review of Politics, Vol. IX, pp. 423–452. Cropsey, J. (1971) Introduction to A Dialogue Between a Philosopher and a Student of the Common Laws of England by Thomas Hobbes. Chicago: University of Chicago Press. Damaska, M. (1975) “Structures of Authority and Comparative Criminal Procedure.” Yale Law Journal, Vol. 84, p. 480. Davies, N. (1999) The Isles: A History. Oxford: Oxford University Press. de Montesquieu, C. (1989) The Spirit of the Laws. Cambridge: Cambridge University Press. Dicey, A.V. ([1914] 2008) Law and Public Opinion in England During the Nineteenth Century. Indianapolis: Liberty Fund. Domat, J. ([1688–1694] 2018) Les lois civiles dans leur ordre naturel. Miami, FL: Wentworth. Dworkin, R. (1977) Taking Rights Seriously. Cambridge, MA: Harvard University Press. Freeman, M. and Mindus, P. (eds.). (2013) The Legacy of John Austin’s Jurisprudence. Dordrecht: Springer. Fuller, T. (1990) “Compatibilities on the Idea of Law in Thomas Aquinas and Thomas Hobbes.” Hobbes Studies, Vol. III, pp. 112–134. Hampshire-Monk, I. (1996) “The State and the Individual, SeventeenthEighteenth Centuries: Theorizing the Challenge of Subjective Individualism in Britain.” In Janet Coleman (ed.), The Individual in Political Theory and Practice. Oxford: Oxford University Press. Hannan, D. (2013) Inventing Freedom: How the English-Speaking Peoples Made the Modern World. New York: HarperCollins. Harris, T. (2006) Revolution: The Great Crisis of the British Monarchy 1685–1720. London: Allen Lane. Hayek, F. (1961) The Constitution of Liberty. Chicago: University of Chicago Press. Hildebrandt, M. (2009) “Justice and Police Regulatory Offenses and the Criminal Law.” New Criminal Law Review, Vol. 12, pp. 43–68. Hogue, A.R. (1986) Origin of the Common Law. Indianapolis: Liberty Fund. Holdsworth, W. (1966) Some Makers of English Law. Cambridge: Cambridge University Press. Hazony, Y. (2018a) The Dark Side of the Enlightenment. New York: Basic Books. Hazony, Y. (2018b) Wall Street Journal (April 6). Hume, D. (1983) History of England. Indianapolis: Liberty Classics. Huscroft, R. (2013) The Norman Conquest: A New Introduction. London: Routledge. Kelly, P.J. (1990) Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law. Oxford: Oxford University Press.

4  THE ENGLISH LEGAL INHERITANCE 

135

Lesaffer, R. (2009) European Legal History. Cambridge: Cambridge University Press. Levy, J.T. (2015) Rationalism, Pluralism, & Freedom. Oxford: Oxford University Press. Lotte and Joseph Hamburger. (1985) Troubled Lives: John and Sarah Austin. Toronto: University of Toronto Press. Lovejoy, A.O. (1936) The Great Chain of Being: A Study of the History of an Idea. Cambridge, MA: Harvard University Press. Macfarlane, A. (1978) The Origins of English Individualism. Oxford: Blackwell. Macfarlane, A. (2018) F.W. Maitland and the Making of the Modern World. Cambridge: Cam Rivers. Maitland, F. ([1919] 1946) Constitutional History of England. Cambridge: Cambridge University Press. Maitland, F. and Pollock, F. ([1895] 2010) History of English Law Before the Time of Edward I. Indianapolis: Liberty Press. Marx, K. (1991) Das Kapital. London: Penguin. McKechnie, W.S. (1914) Magna Carta: A Commentary on the Great Charter of King John. Second edition. Glasgow: James Maclehose and Sons. Oakeshott, M. (1921) “Thomas Wentworth First Lord Strafford” (LSE 1/1/1). Oakeshott, M. (1938) “The Concept of a Philosophical Jurisprudence.” Politica, Vol. 3, pp. 203–222, 345–360. Oakeshott, M. (1947) “Scientific Politics.” Cambridge Journal, Vol. 1, pp. 347–358. Oakeshott, M. (1975) On Human Conduct. Oxford: Oxford University Press. Oakeshott, M. (1983) “The Rule of Law.” In On History and Other Essays. Indianapolis: Liberty Press. Oakeshott, M. (1991) Rationalism in Politics and Other Essays, ed. Fuller. Indianapolis: Liberty Press. Oakeshott, M. (1996). The Politics of Faith and the Politics of Scepticism. New Haven: Yale University Press. O’Sullivan, L. (2003) Oakeshott on History. Exeter: Imprint Academic. Padoa-Schioppa, A. (2017) A History of Law in Europe: From the Early Middle Ages to the Twentieth Century. Cambridge: Cambridge University Press. Pocock, J.G.A. (1987) The Ancient Constitution and the Feudal World. Second edition. Cambridge: Cambridge University Press. Pollock, F. (1904) The Expansion of the Common Law. London: Stevens and Sons. Pollock, F. and Holdsworth, W.S. (1921) “Sir Matthew Hale on Hobbes: An Unpublished Manuscript.” Law Quarterly Review, Vol. 37, pp. 274–285. Radin, M. (1947) “The Myth of Magna Carta.” Harvard Law Review, Vol. 60, pp. 1060–1062.

136  N. E. NEDZEL AND N. CAPALDI Ramsden, S. (2017) Working-Class Community in the Age of Affluence. London: Routledge. Reid, J.P. (2004) Rule of Law: The Jurisprudence of Liberty in the Seventeenth and Eighteenth Centuries. DeKalb: Northern Illinois University Press. Reid, J.P. (2005) The Ancient Constitution and the Origins of Anglo-American Liberty. DeKalb: Northern Illinois University Press. Rubin, P., Lauterpacht, E. et al. (1988) “The History of International Law.” American Society of International Law Proceedings, Vol. 82, pp. 25–37. Runciman, D. (1997) Pluralism and the Personality of the State. Cambridge: Cambridge University Press. Scattola, M. (2009) “Scientia Iuris and Ius Naturae: The Jurisprudence of the Holy Roman Empire in the Seventeenth and Eighteenth Centuries.” In Enrico Pattaro (ed. in chief), A History of the Philosophy of Law in the Civil Law World, 1600–1900, Vol. 9. Springer. Scruton, R. (2018) Conservatism. London: Profile Books. Sharpe, J. (1999) Crime in Early Modern England 1550–1750, 2nd ed. London: Routledge. Siedentop, L. (2014) Inventing the Individual: The Origins of Western Liberalism. Cambridge, MA: Belknap Press of Harvard University Press. Stoner, J. (1992) Common Law & Liberal Theory. Lawrence, KS: University Press of Kansas. Turner, S. ([1799–1805] 2018) History of the Anglo-Saxons. Cambridge: Cambridge University Press. Vinogradoff, P. ([1921] 1999) Outlines of Historical Jurisprudence. London: The Lawbook Exchange. Wilks, M. (1963) The Problem of Sovereignty in the Later Middle Ages. Cambridge: Cambridge University Press.

CHAPTER 5

A. V. Dicey

[N]one which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law, which giveth to the head and the members that which of right belongeth to them, and not by any uncertain and arbitrary form of government.1

Introduction This is a book about the ‘rule of law.’ We begin the formal discussion of that expression with A. V. Dicey (1835–1922) because he initiated the subsequent debate about the expression’s meaning. His initiation of the discussion is important for several reasons. First, because the expression ‘rule of law’ has a long history of use in the Anglo-American legal inheritance but not elsewhere. This tie to that inheritance is not fortuitous. That such a long-standing, powerful, and important expression had to wait for the late nineteenth century for elaborate discussion also tells us that something important was happening that required a more formal discussion. While some may resent or take offense at what seems to them English exceptionalism, it is also clear that Dicey is not offering a theory but a description. What Dicey was trying to do was to describe a system that led to the strongest protection of human liberty known at the time. A system which was (and continues to be) endangered by a lack of understanding of its underlying culture, mores, and history—in other

© The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4_5

137

138  N. E. NEDZEL AND N. CAPALDI

words, a system that was and is under attack by (civilian) theories that misinterpret, misunderstand, and even dismiss it. Second, the entirety of twentieth-century legal thought is, in one way or another, a response to Dicey’s explanation. How one responds to Dicey, directly or indirectly, reflects one’s entire philosophy of law. Third, Dicey does not engage in conceptual analysis. He clearly did not believe that the expression ‘rule of law’ embodied a concept that could be elucidated by semantics alone but required clarification of how that expression functioned and was related to practices within a specific culture, a specific history, and a specific set of institutions. A. V. Dicey’s work is the culmination of the English legal inheritance as we described it in the previous chapter. We should therefore expect that his discussion of the ‘rule of law’ reflects a deep appreciation of the historical dimension of English law, its fundamental difference from Continental law, the distinction between legislation and adjudication, and the important role of judicial decisions in protecting individual freedom. That is exactly what we find. Dicey’s discussion of the rule of law appears in Introduction to the Study of the Law of the Constitution (1885). He was not the first person to use the expression ‘the rule of law’ (which dates at least from the 1610 Petition of Grievances: ‘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 to the head and the members that which of right belongeth to them, and not by any uncertain and arbitrary form of government ….’), but he was the first jurisprudential writer to explicate the principle. The framework within which Dicey undertook this explication was (a) to contrast English common law with the Continental civilian tradition (of which he had an extensive but not perfect knowledge), (b) to note some of the continuities and differences between English law and American law, (c) to stress the important difference between a written constitution such as one finds in the United States and the unwritten constitution of Great Britain, and (d) to warn readers that the growth of administrative law is inimical to the rule of law. All four of these framework points are crucial to the present book. Dicey was sensitive to the changes in England’s social, intellectual and political climate during the end of the nineteenth and the beginning of the twentieth century. He addressed these changes in Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century (originally given as a set of invited lectures at

5  A. V. DICEY 

139

Harvard in 1898 and first published in 1905). He considered this book his most important work. What this second work documents is the transition in England from the kind of ‘Benthamism’ to which Dicey himself had subscribed (emphasis on individual liberty, sometimes identified as classical liberalism) to the collectivism (emphasis on equality, democratic socialism or modern liberalism) inherent within Benthamism and which Dicey abhorred.2 Dicey quoted J. S. Mill’s On Liberty,3 demonstrating his agreement with Mill’s notions that the only justification for interfering with individual liberty is to protect the liberty of others; the importance of limited government, and the understanding that ‘State help kills self-help.’4 Dicey offered several explanations for the transition to a collectivist, socialist state. First, again following Mill, he saw democratization—especially among the working class—as undermining personal autonomy in favor of a collective identity5 involving increasing redistribution carried out by the state.6 Second, like Mill, he identified Tory philanthropy as among the ‘conscious or unconscious allies of collectivism.’7 Tories wanted to preserve a feudal conception of society that entailed both noblesse oblige but also their own superior inherited status.8 The third reason is the most interesting, namely, the growth of positivist social engineering (what we have identified as the Enlightenment Project). He saw within Benthamism itself the seeds of this view: 1. Legislative principle: principle of utility. 2. Legislative instrument: use of parliamentary sovereignty. 3. Legislative tendency: extension and improvement of governmental mechanisms.9 Again, as in Mill,10 Dicey saw the increasing influence of the positivist Comte on English thought as the intellectual origin of social engineering, citing both Comte and Martineau’s translation of Comte’s Philosophie Positive (1853).11 Dicey understood parliamentary sovereignty, that Parliament was an absolutely sovereign body with the right to make or unmake any law. What concerned him was the perspective from which Parliament would continue to operate. Hitherto, individual freedom had primarily been recognized by means of common law decisions, while Parliament’s traditional role was to limit the crown’s power. As the result of the Glorious

140  N. E. NEDZEL AND N. CAPALDI

Revolution of 1688, Parliament became regarded as the highest court in England, the source of English sovereignty, not primarily the source of new law unconnected with prior legal principles. England did not have a written constitution. The decisions of judges became, historically, the articulation of its fundamental legal norms. Subsequently, Parliament shared that role. Dicey argues that the traditional constitution respects the individual freedom that emerged through those earlier decisions, and any new legislation must be coherent with the old norms. In that sense, Parliamentary politics and legislation should presuppose the norms of customary law. What Dicey intended was an endorsement of constraint on all future politics by past judgemade law. Originally, Parliament was not just a legislative body but another judicial body whose function was to resolve conflicts among previous precedents. Dicey argues that the constitution respects the individual freedom that emerged through those decisions; new laws must be coherent with the old norms. The purpose of this is to temper—not adopt—politically motivated law through the decisions of objective parties such as judges or Parliament. It traditionally depoliticizes new laws through a judicial lens that should consider whether the proposal is consistent with equality before the law, or whether it would unfairly advantage some to the disadvantage of others, or otherwise ultimately encourage conflict among various competing interests. In contrast, collectivist Continental theorists who reflect an understanding of the relation between politics (as a deeply abstract endeavour) and law incorporate a ‘majority-rules’ conception into both the making of law via legislation alone and also seek to politicize judicial practice so that it follows wherever the current political majority leads.

The Law of the Constitution12 The above title had a special meaning for Dicey. The ‘Law of the Constitution’ encompasses ‘two principles’ namely ‘the Sovereignty of Parliament and the Rule of Law.’13 Here, we allude to our earlier discussion of the relation between legislation to adjudication. As will become increasingly clear, the rule of law, for Dicey, encompasses a set of norms that emerged historically (spontaneously) in the Anglo-American14 legal inheritance. What is important to note here is that:

5  A. V. DICEY 

141

1.  Dicey is aware of the ongoing tension between the legislature (political institution) and the legal institution. His position is consistent with the English tradition that legislation should be interpreted narrowly, especially when it contradicts common law principles. Therefore, he opts, ultimately, for the supremacy of what some call private law (law) over public law (politics). If public law subsumes private law, there will no longer be the ‘rule of law.’ What the government gives it can also take away.15 2. This is not about the supremacy of judges but the supremacy of norms to which both judges and members of the legislature are beholden. 3. He recognizes that the ‘rule of law’ is a set of norms (meanings) peculiar to the Anglo-American legal inheritance and that other legal systems may and do have different norms. 4. The ‘rule of law’ embodies the substantive norm of the priority of the individual, not of the government: ‘In England the right to individual liberty is part of the constitution, because it is secured by the decisions of the courts, extended or confirmed as they are by the Habeas Corpus Acts.’16 5. The ‘rule of law’ is not what law in the abstract should be but what law is in a specific legal system. 6. Norms are meanings, not structural features of either English law or law in general—something that cannot be captured in a positivistic analysis. You cannot explain or understand the ‘rule of law’ by first defining ‘law’ in the abstract. 7. Dicey does not ignore the growth of administrative law; rather he insists that it is incompatible in its present form with the ‘rule of law.’ Dicey’s critics presume, although they are reluctant to admit it outright, that we now live in a world that would best be guided exclusively by legislative supremacy (something that periodically shows up or is suggested in English jurisprudence, e.g., Bentham). As such, they either ignore the concept of the ‘rule of law,’ eviscerate it of any normative content by reducing it to mere legality17 or ‘rule thru law’ (e.g., Raz), or identify an alternative normative framework (e.g., Dworkin), or offer a different historical analysis in the context of the EU such that English law will merge with and be subsumed by Continental law (e.g., Loughlin and Allison).18

142  N. E. NEDZEL AND N. CAPALDI

Dicey on the ‘Rule of Law’ The expression ‘the rule of law and not of men’ is a very old one. However, its meaning was never precisely spelled out. Part of the reason for this is that the understanding of the phrase was largely understood in a purely negative fashion: We should be ruled by something with objective validity and not by the arbitrary will of others. What many previous writers had largely focused on was the assumed objective entity (e.g., natural law). The expression ‘the rule of law and not of men’ put the focus on the LAW. Unfortunately, there was disagreement about that and the concomitant assumption that some elite group were the experts on what that something (LAW) was. The focus was, more or less, on who the elites were. Dicey was the first person to attempt a clear definition of the ‘rule of law.’ What he found was that the ‘rule of law’ had a specific meaning in English law and nowhere else. Dicey identifies what he takes to be the three ‘distinct’ but related elements of the ‘rule of law.’ First, ‘no man is punishable … except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.’19 What Dicey captures here is perhaps the oldest association with the expression ‘rule of law’, namely that government must follow certain established rules and procedures before punishing anyone. In other words, its power is limited by law. Second, ‘We mean…not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm amenable to the jurisdiction of the ordinary tribunals.’ Dicey refers to this as ‘legal equality’20 or what we call equality before the law. This is not the advocacy of equality of outcome, and it does not delegitimatize non-legal inequalities. This feature begins to capture the normative dimension of the meaning of the ‘rule of law.’21 The second element of the definition is important because while prior discussions insisted that the head(s) of state were somehow under the law, the head(s) still retained a privileged position, described by James I as the king’s perogative. Furthermore, within the context of English law, Kings had sometimes used the infamous Star Chamber as a special court to evade ordinary restraints on their power. In England, the ‘rule

5  A. V. DICEY 

143

of law’ is coterminous with the cognizance of ordinary courts. History had shown that judges such as Sir Edward Coke were a better bulwark against tyranny than political leaders. Finally, this second element captures the sense in which each individual should be taken seriously as an individual, independent of whatever other status or condition may exist. As his third point, Dicey says that the ‘rule of law’: a. ‘is a sort of spontaneous growth [italics added] so closely bound up with the life of a people that we can hardly treat it as a product of human will….’22 b. ‘In England the right to individual liberty [italics added] is part of the constitution…secured by the decisions of the courts…’23 c. The constitution is not a written document, ‘has not been created at one stroke, and, far from being the result of legislation … [is] the fruit of contests carried on in the Courts on behalf of the rights of individuals.’24 It is this third element that constitutes the substantive norm of the ‘rule of law.’ Dicey was not saying or making an empirical point that if we wanted to respect individual freedom then the courts are a better forum; he presumed or premised that individual freedom was the inherent norm. This is why it is important to read the Law of the Constitution in the light of Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century. The ‘rule of law’ is about individual freedom, not a theory of individual freedom, not metaphysical or theological or philosophical-natural or negative rights, but ‘rights’ that emerged within the historical and cultural context of the common law. Given this status and origin, such freedom is better protected than the Continental provision of rights by governmental largesse. Individual freedom is not a theological or political gift, not a concept but a norm within practice; it is not bestowed; it is not the product of a theory but a cultural artifact. Whether it is universally valid or can be adopted by other cultures is an interesting question but irrelevant to what it means in the Anglo-American legal inheritance.25 In the context of our discussion in the previous chapter on the relationship between legislation and adjudication, (c) is quite important. While conceding Parliamentary supremacy, judicial restraint of legislative power has a presence. It is present in that legislation has to be consistent with previous law as housed in the common

144  N. E. NEDZEL AND N. CAPALDI

law. Such coherence and consistency require recognition of the fundamental freedom of the individual. This is already in Coke; it is spelled out in Dicey’s understanding of the ‘rule of law.’ d.  Even if other countries with written constitutions grant at one stroke all of the same rights understood as ‘deductions [italics added] drawn from the principles of the [written] constitution,’26 those rights are not as secure (because by implication those rights can disappear or be rescinded by later legislation or a later constitution). On the contrary, ‘in England the so-called principles of the constitution are inductions27 [italics added] or generalizations based upon particular decisions pronounced by the Courts as to rights of given individuals.’28 The ‘rule of law’ with a special emphasis on the rights of individuals is the unique product of the historically evolving English culture; this culture is the result of customary practice acknowledged by the courts, articulated inductively by examination of past practice. It was not derived deductively from any abstract political principles. Instead, it was understood to be part of an unwritten constitution that cannot be reduced to a theory or given a final and definitive articulation. In short, the ‘rule of law’ is a reflection of a culture that recognizes the primacy of practice over theory, the individual over the community, and the primacy of law over politics. A factor that became increasingly of concern to Dicey was the growth of administrative law. As the socialistically inclined welfare state grew, it created numerous regulatory agencies designed to achieve specific social goals. As a consequence, these agencies had combined executive, legislative, and judicial power, in violation of the concept of separation of powers. Moreover, the ordinary courts were precluded from reviewing these administrative actions. The ancient veneration for the rule of law has in England suffered during the last thirty years a marked decline. The truth of this assertion is proved by actual legislation, by the existence among some classes of a certain distrust both of the law and of the judges, and by a marked tendency towards the use of lawless methods for the attainment of social or political ends [italics added] … Recent Acts have given judicial or quasi-judicial authority to officials who stand more or less in connection with, and therefore may be influenced by, the government of the day …29

5  A. V. DICEY 

145

In sum, Dicey recognizes that the ‘rule of law’ encompasses universal rules (equality before the law), categorical as opposed to instrumental rules (and therefore not designed to achieve the specific targeted results of administrative law), rules that reflect procedural norms, the need to use various methodologies such as checks and balances and separation of powers to limit governmental power, but more importantly what Oakeshott calls the ‘civil association’30 of English culture. The ‘rule of law’ can therefore be defined as the presence of universal, categorical (non-instrumental) procedural norms in a civil association. Everything that we shall see spelled out in Fuller, Hayek, Dicey, and Oakeshott is a further elaboration of what is already in Dicey.

The Crux of the Matter The third element of Dicey’s understanding of the rule of law, individual liberty,31 is the most important one. It is what distinguishes Dicey’s supporters and allies (Leoni, Hayek, Fuller,32 and Oakeshott) from all of their critics. Without fail, all of the critics, at best, espouse ‘rule thru law’; that is, mere legality without any commitment to the fundamental status of individual freedom (Hart, Raz, Rawls, Dworkin, etc.). In their other writings and public policy stances, the opponents have uniformly supported equality and some version of democratic socialism. None of the critics have offered an alternative interpretation of the history of the ‘rule of law’ or have related the concept to the history of English culture and thought.33 Before proceeding further, we want to discuss the kind of explanation of the ‘rule of law’ Dicey is giving. First, he gives an historical explanation—what the rule of law means and has meant and how it has evolved in a specific legal system, namely Anglo-American law. This is very English—it is what one might expect from, let us say, the Oxford English Dictionary. Second, it is nominalist! It is not an attempt to explain the timeless essence of the rule of law; it is not an attempt that assumes that the ‘rule of law’ is to be found in all legal systems and shares some essential common characteristics. Dicey insists that it is uniquely Anglo-American. Third, it is composed of several key elements (absence of arbitrary external constraints, equality before the law, individual liberty, and a product of judge-made law not legislation). Focusing on one without the others is to miss the point. Finally, it is a norm in a specific cultural context; it is not a universal feature of all

146  N. E. NEDZEL AND N. CAPALDI

legal systems; it cannot be captured in what purport to be a norm-free analysis. Dicey was well aware of the historical conflict between legislation and adjudication. He chides lawyers who looked on ‘the matter from an exclusively legal [formal] point of view and who went on to claim that Bacon and other advocates of the prerogative did not (it may be supposed) intend to sacrifice the liberties or invade the ordinary private rights of citizens.’34 Nevertheless, Dicey insists that ‘Bacon’s suggestion to reduce all law to legislation would, if successful, have formally established the fundamental dogma of administrative law that administrative questions must be determined by administrative bodies.’35 ‘The attempt failed…chiefly because the whole scheme of administrative law was opposed to the habit of equality before the law which had long been an essential characteristic of English institutions.’36 Dicey understood the primary features of the British intellectual inheritance, including spontaneous order and the distrust of abstractions and deductions from first principles. the dogma that the form of a government is a sort of spontaneous growth so closely bound up with the life of a people that we can hardly treat it as a product of human will and energy, does though in a loose and inaccurate manner, bring into view the fact that some polities, and among them the English constitution, have not been created at one stroke, and far from being the result of legislation in the ordinary sense of that term are the fruits of contests carried on in the Courts on behalf of the rights of individuals.37

‘[A] third and a different sense in which the “rule of law” or the predominance of the legal spirit [italics added] may be described as a special attribute of English institutions [notice the plural]…(as for example the right to personal liberty, or the right of public meeting), are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.’ These decisions, like all judicial decisions, were the result of inductive reasoning. Dicey even notes that ‘the Petition of right and the Bill of Rights have a certain affinity to judicial decisions.’38 He goes on to point out that, in contrast, ‘under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.’39 They are thus the result of deductive reasoning, as

5  A. V. DICEY 

147

opposed to inductive reasoning. Further, ‘There is in the English constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists. Such principles moreover…are, like all maxims established by judicial legislation, mere generalizations…’40 Finally, ‘where the right to individual freedom is a result deduced from the principles of the constitution, the idea readily occurs that the right is capable of being suspended or taken away. As an American Founder might have stated, they are mere parchment guarantees. Where, on the other hand, the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one which can hardly be destroyed without a thorough revolution … a statute suspending the Habeas Corpus Act … is not in reality more than a suspension of one particular remedy for the protection of personal liberty.’41 Why is this important? The present German Constitution and others enshrine or seem to enshrine personal liberty. Where’s the difference? Let us suppose that a Dworkinesque Judge or legislator has to decide what liberty means, perhaps in an individual case. Such a Judge or legislator might decide that ‘liberty’ is to be interpreted in a positive sense and not as a negative right. As such, liberty entails the means to achieve one’s desired ends and thus might require the redistribution of resources. Such a conclusion could never emerge from the common law.

Dicey’s Critics42 Both Dicey’s critics and Dicey’s admirers43 share one thing in common: a recognition that Dicey misunderstood some features of the Continental legal tradition. However, all of his critics have a number of views in common. (1) They generally believe that Dicey failed to see and anticipate future developments. (2) They prefer that the state and public administrative law have a strong role in government. (3) They want to introduce the Continental distinction between public and private law into AngloAmerican law (Loughlin, Allison). (4) They refuse to come to grips with Dicey’s claim that the rule of law protects individual liberty only within the context of or because of the dominance of private law, and (5) they advocate that Britain become more like the Continent or remain in the EU (Ivor Jennings). Dicey did not fail to see what was happening—he saw it and did not like it. Not seeing and not liking are two different things. Those who write from a social scientific perspective tend to have difficulties with

148  N. E. NEDZEL AND N. CAPALDI

norms. In order to avoid saying outright that they advocate or do not advocate something, it is easier to take later empirical developments of which one approves (e.g., greater growth of governmental power as opposed to individual freedom) as somehow self-justifying. For example, N. Johnson objected to the alleged canonical status that Dicey’s work had obtained because it ‘encouraged a static view of the constitution and retarded its development.’44 Translation: ‘I disagree with Dicey and I approve of the direction that Dicey objected to, namely, greater power of the government over individuals.’ Likewise, Richard Cosgrove in his biography of Dicey,45 ‘explains away’ Dicey by reference to Dicey’s Evangelical background just as Jennings had dismissed Dicey’s ‘Whig’ and ‘[classical] liberal’ background. This approach suggests, implausibly, that some writers, namely themselves, are free from bias or have, without argument, access to timeless values or that their historical context is somehow the correct context. In his 2007 book, Allison engages in a full-scale critique of Dicey.46 Before discussing that critique, we want to repeat why we think Dicey’s is a crucial account of the ‘rule of law.’ Dicey identified both some of the formal features of the rule of law and its main normative core: individual freedom (not as an abstraction but as the product of judicial decisions over time). Although he did not provide a full-blown historical account, he believed his interpretation was an accurate portrayal of how the ‘rule of law’ had evolved over the history of British law; at the same time, he did not assert or believe in any inexorable Whiggish progression. Dicey believed in growth, change with continuity, the deep roots of English liberty, and the current threats to that liberty. Civil law prides itself on its predictability. Common law may be less predictable. However, common law, because of its judicially evolved and evolving character is inherently more flexible than legislated law, which is fixed and difficult to change. The threats to English liberty is why Dicey wrote his second book, to call attention to the threats, not to celebrate an inevitable triumphalism. By coupling the ‘rule of law’ with Parliamentary sovereignty as integral to the British Constitution, he tamed the legislature in the interests of individual freedom. He thought it was especially necessary to do this because of the ominous rise of Continental-style administrative law. He insisted upon the difference between Britain and the Continent because in his estimation the latter did not protect human freedom to the same extent. We think Dicey is correct about all of these things. First, what he said fits with and was better expressed later by Oakeshott’s notion that

5  A. V. DICEY 

149

Britain had a civil association, and that for some time (Hayek would agree), it was being threatened by the increasing growth of the forces (social, political, and economic) of enterprise association. Second, however, inaccurate Dicey might have been about some features of Continental law, what he did see was consistent with our claim that the Continental tradition always retained the primacy of some sort of enterprise association or collective good. The present focus in the Continent on human freedom and dignity allows the state to place enormous and potentially infinite burdens/restrictions on the freedom part in the name of the dignity part. Allison interprets Dicey in the following way: (1) He believes Dicey’s account of the rule of law was purely formal and lacked a normative core; (2) Dicey’s hidden historical bias was ‘Whiggish’; (3) this bias has mesmerized generations of lawyers and judges, ossifying the Constitution, and inhibiting the further growth of the British Constitution to accommodate ‘a developing and increasingly complex administration and … the decline of Empire, belated recognition of its fundamental failures, the devastation of two world wars and … a sense that Britain was failing economically to keep up with her Continental and other competitors … the successful development of public law across Continental Europe and beyond.’47 In other words, according to Allison, Dicey’s view was singularly responsible for everything bad that had happened or even might have happened to Great Britain! It should be clear that we disagree with Allison’s attributions to Dicey. Both of Allison’s books were written and published before BREXIT. In 1996, Allison had proposed a model for introducing into English law the Continental distinction between public and private law. The distinction in the Continental tradition dates back to Ulpian’s distinction that opens Justinian’s Digest. This brings Allison into direct conflict with Dicey’s opposition to administrative law as a form of public law. According to Allison, Dicey’s conception of the rule of law requires public officials to be under the same ordinary law as everyone else and not a separate public law. In the same book, Allison criticized Lon Fuller’s analysis of polycentric disputes and Fuller’s perception that administrative law (as in all forms of positivism) is managerial law. In the end, both Dicey and Fuller want to protect individual freedom through adversarial procedure in the ordinary courts and to shield it from the inbred procedures developed and run by the agencies themselves.

150  N. E. NEDZEL AND N. CAPALDI

Bruno Leoni Bruno Leoni (1913–1967)48 argued that a society defined wholly by legislation is fundamentally incompatible with a free society because of the inherent temptations of rent-seeking and the tendency to exploit losers in the political process49: Legislative remedies are often ‘too quick to be efficacious, too unpredictable, and too directly connected with the views and interests of a handful of people such as legislators and lobbyists to provide effective remedies for society’s ills.’50 Based on his familiarity with Hayek and Austrian economics, he pointed out that neither economic planning nor legislation can anticipate and control unintended consequences. He argued, instead, that something like common law was both more predictable and could deflect the trajectory of legislation toward the total politicization of life.51 Dicey’s mistake was in not acknowledging that Continental legal systems developed a system of review courts to judge the legality or constitutionality of both legislative acts and the actions of administrative agencies. It is generally agreed that this review process is a good thing. In the Continental tradition of ‘rule thru law’ and in the minds of some British jurists, it is assumed that the ‘rule of law’ only means that arbitrary acts of the government (or regime) can be checked by reference to a constitution and a court of constitutional review. The laws embodied in the constitution are the ultimate rules and not the decisions of specific bureaucrats. No one denies that this is, in general, a good thing. However, as Leoni points out, this was not the whole of Dicey’s understanding of the ‘rule of law.’ The essential element in Dicey is individual freedom (what Oakeshott will later identify as civil association). This, too, is what Leoni focuses upon in his third chapter entitled ‘Freedom and the Rule of Law.’ As Leoni put it: Dicey considered the ‘legal spirit’ a special attribute of English institutions. The Whole British political system was based, according to him, on general principles resulting ‘from judicial decisions determining the rights of private citizens in particular cases brought before the courts.’ He contrasts this with… ‘the security given to the rights of individuals’ which ‘results or appears to result from…a legislative act.52

Furthermore, ‘the ideal of the ‘rule of law’ as it was conceived by the English as well as the American people (at least in the times when ‘the

5  A. V. DICEY 

151

rule of law’ was an ideal) was undoubtedly understood as freedom from interference on the part of everybody, including the authorities.’53 Although Leoni, well versed in the history of English law and the works of Hobbes, Coke, Hale, etc., corrected Dicey on a number of features of French and Italian law, he agreed with both Dicey’s and Hayek’s analysis of the ‘rule of law.’ ‘Thus, I think that Dicey was perfectly consistent in assuming that the rule of law implies the fact that judicial decisions are at the very foundation of the English Constitution and in contrasting this fact with the opposite process on the Continent, where legal and judiciary activities appear to be based on the abstract principles of a legislated constitution.’54 The Continental legal tradition has ‘rule thru law’ and not the ‘rule of law.’ First, ‘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.’55 Even worse, many Continental European scholars mistakenly ‘imagine that the Continental imitation of the English or the American system (say, for instance, the German Rechtsstaat or the French état de droit or the Italian stato di diritto) is really something very similar to the English “rule of law.”’56 Leoni continues with his criticism: ‘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 encroachments of all possible kinds of tyrants.’57 He identifies this, as we have, with the ‘Greek [not Roman] or Continental notion of the certainty of the law…. But unfortunately, all this is no assurance that we shall be actually ‘free’ from interference by the authorities.’58

Conclusion Dicey’s Understanding of What is Unique to the Anglo-American Conception of the Rule of Law can be summarized as follows: ‘In both [these] countries the private rights of citizens to personal liberty and the like are in reality the foundation rather than the result of the constitution.’59 1. The only objective reality is the self-defined interests of individuals. The notion of an objective collective social whole that

152  N. E. NEDZEL AND N. CAPALDI

transcends the specific interests of individuals is either a metaphysical chimera or a myth designed to subordinate some to others. 2. We do not need a philosophical or theological foundation to identify this reality; it is present in the historical experience of the evolving common law of England. 3. These self-defined interests may be called ‘rights,’ but no philosophical or theological theory is attached to the term; these ‘rights’ are not abstractions but arise from specific judicial decisions. They developed from the UK’s unwritten constitution, cannot and should not be reduced to a final deductive and definitive explication. Any particular ‘right’ of a particular individual may be curtailed but only if the court determines that it violates the ‘right’ or ‘rights’ of (an)other individual(s). 4. These ‘rights’ are protected by multiple social, economic, political, cultural, and legal institutions—they are what has historically defined Anglo-American culture. 5.  Articulating these ‘rights’ in a constitution, even a democratically approved constitution, does not provide an extra level of protection because, aside from turning them into abstractions from which anything can be deduced, a subsequent constitution can remove them, and, in the end, merely reflects the will of the majority or those who claim to speak in the name of that majority. Anglo-American ‘rights’ are not the product of a merely political process but of a cultural heritage and judicial process. 6.  Even though parliamentary sovereignty may technically undo what a court has decided, parliament (legislative power) operates within the framework of normative conventions that culturally enshrine subservience to these ‘rights.’ 7.  Although it has been useful to construct special constitutional courts to review the consistency of legislative actions, it is still the case that (a) judges operate within the context of cultural subservience to the ‘rights,’ but (b) the powers and personnel of the courts can be redefined by the legislature which can itself become despotic, even a democratic one if it abandons the assumption of subservience to culturally enshrined ‘rights.’ 8. Written constitutions alone or even in conjunction with courts that have the power of judicial review of government actions do not sufficiently constitute the rule of law in the absence of the recognition of and commitment to the priority of the individual.

5  A. V. DICEY 

153

This is why Continental and other legal systems to this day still have only ‘rule thru law’ and not the ‘rule of law.’ 9.  ‘Rule through law’ (managerial, state, or administrative law) rooted in philosophical pretensions or theological mythology or ideological obsessions are the greatest threat to the continued existence of the rule of law. 10. In the end, it all depends upon whether one sees one’s legal role as protecting individuals or as a commitment to efficient administration. By calling attention to this, we can begin to see why Dicey is still relevant. 11. The perceptive reader will inevitably ask if our overall argument condemns all of the world outside the sphere of British law to ‘rule thru law.’ For the ‘rule of law’ cannot be said to be deeply embedded within the legal structures outside of that sphere. The short answer, as we have argued in Chapter Two’s discussion of spontaneous order, is that cultures borrow from each other all the time, and that certainly other cultures might evolve in the direction of the rule of law. This is especially true when cultures face novel situations that call for rethinking or reconfiguring their fundamental institutions and presuppositions. The Anglo-American world has a relatively easier time doing this because of its traditional legal institutions and legal culture. The long answer is (a) that reconfiguring other cultures is a serious challenge specifically for those cultures that have a problem with individual autonomy—hence the failure of so many well-intentioned foreign policy adventures; (b) monotheistic/universalists are more likely to foment conflict; and (c) we do not advocate or believe there is a guaranteed utopian resolution of all conflict. While we remain optimistic, our intention is to defend and preserve a rare and precious inheritance.

Notes

1. ‘Petition of Grievances,’ House of Commons 1610, quoted in Walker (1988, p. 2). 2. This concern on Dicey’s part seems to have been missed by Craig (1990, p. 105), who asserts that Dicey underestimated the growth of governmental power. Quite the contrary, the growth of government is precisely

154  N. E. NEDZEL AND N. CAPALDI what concerned Dicey. On the larger issue of ‘Benthamism,’ we are not asserting that Bentham intended some kind of collectivism; what we are maintaining is that the logical development of his views leads, as Dicey said, in that direction. This is precisely what J. S. Mill asserted in his essay entitle Bentham. 3.  Most references are to the Liberty Fund editions (2008a, b). See (2008b, pp. 361–362). A later edition of the Law of the Constitution has been edited by W. E. Allison and published (2013a) as Volume One of The Oxford Edition of Dicey along with Volume Two, Comparative Constitutionalism (2013b), a collection of previously unpublished lectures. 4. Dicey (2008b, p. 182). 5. Ibid., p. 213. 6. This is a concern echoed by Oakeshott: ‘After 1867, the British electorate were not interested in the form of government or freedom only a redistribution of wealth’ quoted in O’Sullivan (2003, p. 122). 7. Dicey (2008b, p. 289). 8. See also Wiener (1981). 9. Dicey (2008b, pp. 215–221). 10. J. S. Mill, Auguste Comte and Positivism (1865) is, despite an early friendship, a blistering critique of Comte as a totalitarian. 11. Dicey was concerned about the concessions to socialism that Mill seemingly made in his 1848 publication of the Principles of Political Economy, but Dicey does not mention Mill’s critique of socialism in the latter’s Chapters on Socialism published posthumously. 12. The English constitution has three principles: legislative supremacy (‘King in Parliament’); the rule of law (imposes on the government the respect for personal freedom and the freedom of individual expression ‘with no margin for discretionary power’; and conventional constitution—customary processes like convening Parliament once a year. All this was shaped by judicial decision. Custom: undisputed authority of English judges; the importance of the jury (Tocqueville noted this in Democracy in America); the fact that civil servants are subject to ordinary jurisdiction in the UK (not in the United States). See Padoa-Schioppa (2017, p. 594). 13. Dicey (2013a, Lecture VIII, p. 185). 14. Dicey (2013a, n. 21) frequently alludes to the similarities of the American and English positions on the rule of law and other matters. What is interesting is his recognition that the American situation has become a bit complicated by eighteenth-century Continental rationalism (which later evolved into what we call the Enlightenment Project of rule by experts). ‘[T]he Declarations contained in the American Constitutions have a real similarity to the Continental declarations of rights. They are the product

5  A. V. DICEY 















155

of eighteenth century ideas; they have, however, it is submitted the distinct purpose of legally controlling the action of the legislature by the Articles of the Constitution.’ In short, they are still ‘negative’ rights and not ‘positive’ rights. Oakeshott will identify the same difficulty with the American tradition. 15.  Projected onto the international or super-national (e.g., EU) stage, a world with a plurality of independent sovereign national states having to engage or negotiate with each other is a nightmare to collectivists because it is individualism writ large. 16. Dicey (2013a, Lecture V, p. 116). 17. ‘Whether the rule of law in Dicey’s exposition was formal or substantive in character has been the subject of debate. In the English Historical Constitution, I argued that its formality was manifest…’ Allison (2013a, Editor’s Introduction, p. xxxix). 18. The same J. W. F. Allison (1996, pp. 18–23; 2007) published two such books critical of Dicey. 19. Dicey (2008a, p. 110). This principle ‘nullum crimen sine lege’ is cited by both Fuller and Oakeshott. 20. Dicey (2008a, p. 114). 21. ‘No man in civil society can be exempted from the laws of it’ (Locke, Second Treatise §94). 22. Dicey (2008a, p. 116). The notion of ‘spontaneous order’ is developed at greater length and is a fundamental tenet of Hayek. 23. Dicey (2008a, p. 117). 24. Dicey (2008a, p. 116). 25. Whether it should be maintained or overridden is an important question that would require reference to other substantive norms within AngloAmerican culture; this question cannot be answered by appeal to theories or Archimedean posturing. Analogously, we can improve the English language within or by using the English language; to appeal to another natural language is to beg the question; to appeal to an artificial language is to ignore that we need natural languages to construct an artificial language. 26. Dicey (2008a, p. 117). The importance of deductive thinking in the Continental legal tradition is discussed in detail elsewhere in this book. 27. The stress on inductive reasoning by analogy is a distinctive feature of English though going back at least to Ockham, and the suspicion of, or limitation of, or rejection of abstractions is an important theme in English intellectual history (Locke, Hume, Burke, etc.) as well as a distinguishing feature of common law reasoning. 28. Dicey (2008a, p. 117).

156  N. E. NEDZEL AND N. CAPALDI 29. Ibid., pp. lv-lvi. Dicey saw the decline at exactly the same time that the Rechtsstaat was deliberalized in Germany and positivism was in the ascendancy in both in Germany and in Great Britain. 30. Emphasis on the importance of ‘civil association’ as the key to understanding the ‘rule of law’ is part of Oakeshott’s account. 31. Even Tamanaha (2004, p. 64) puts the emphasis on the role of judges rather than on individual liberty. 32. Fuller (1964, pp. 209–210) argued that the rule of law enhanced individual autonomy. 33. Raz, in his later work, acknowledges this dimension but does not develop it; he sees it as a special case of a larger genus. 34. Dicey (2013a, Lecture V, p. 113). 35. Ibid., p. 114. As in the case of Bentham, we must distinguish in Bacon between what Bacon intended and what was implied. As we shall argue later, Bacon had a programmatic approach to physical science, but it was specifically not intended for the social world; nevertheless, others will articulate a full-blown version that we have come to know as the Enlightenment Project. 36. Ibid., p. 115. Oakeshott repeatedly pointed out the inherent danger of the Baconian project, the early version of the Enlightenment Project. 37. Ibid., p. 116. 38. Ibid., addendum, n. 21 of p. 232. 39. Ibid., p. 115. 40. Ibid., p. 116. 41. Ibid., p. 118. 42. It is a curious feature of the literature than legal scholars writing about Dicey largely ignore what philosophers of law have had to say (Allison fails to mention Leoni or discuss Hayek in detail); at the same time, philosophers of law tend to ignore the legal literature (the exception is Raz who talks about, only to criticize, Hayek) or largely to ignore what philosophers sympathetic to Dicey and his concept of the rule of law have to say (i.e., they ignore Hayek and Oakeshott, and denigrate Fuller). 43. A very good summary of the secondary legal literature is to be found in Allison’s Introduction (Oxford, 2013a). 44. Johnson (1985). This is a view also held by Allison (2007). 45. Richard Cosgrove (1980). 46. J. W. F. Allison (1996, 2007). Allison is unaware of Oakeshott’s work on the rule of law. 47. Allison (2007, p. 187). 48. Leoni was a great scholar of Roman law, and he agreed with Savigny that at one time it was a product of something like spontaneous order before its later rigidification under Justinian.

5  A. V. DICEY 









157

49. Zywicki (2014). 50. Leoni (1991, p. 7). 51. Mingardi (2013). 52. Leoni (1991, p. 69). 53. Ibid., p. 73. 54. Ibid., p. 90. 55. Ibid., p. 59. 56. Ibid., p. 60. 57. Ibid., p. 73. 58. Ibid., pp. 73–74. 59. Dicey (2013c, p. 78).

References Allison, J.W.F. (1996) A Continental Distinction in the Common Law. A Historical and Comparative Perspective on English Public Law. Oxford: Oxford University Press. Allison, J.W.F. (2007) The English Historical Constitution: Continuity, Change and European Effects. Cambridge: Cambridge University Press. Cosgrove, R. (1980) The Rule of Law: Albert Venn Dicey, Victorian Jurist. Chapel Hill: University of North Carolina Press. Craig, P. (1990) “Dicey: Unitary, Self-correcting Democracy and Public Law.” Law Quarterly Review, Vol. 6, p. 105. Dicey, A.V. ([1917] 2008a) The Law of the Constitution. Indianapolis: Liberty Fund. Dicey, A.V. (2008b) Lectures on the Relation Between Law and Public Opinion in England. Indianapolis: Liberty Fund. Dicey, A.V. (2013a) “The Law of the Constitution.” In W.E. Allison (ed.), The Oxford Edition of Dicey, Vol. 1. Oxford: Oxford University Press. Dicey, A.V. (2013b) “Comparative Constitutionalism.” In The Oxford Edition of Dicey, Vol. 2. Oxford: Oxford University Press. Dicey, A.V. (2013c) “American Constitutionalism.” In W.E. Allison (ed.), Comparative Constitutionalism. Fuller, L. (1964) The Morality of Law. New Haven: Yale University Press. Johnson, N. (1985) “Dicey and His Influence on Public Law.” Public Law 717, 719. Leoni, B. ([1961] 1991) Freedom and the Law. Indianapolis: Liberty Fund. Mingardi, A. (2013) “Bruno Leoni’s Lesson.” Wall Street Journal (25 April). O’Sullivan, L. (2003) Oakeshott on History. Exeter: Imprint Academic. Padoa-Schioppa, A. (2017) A History of Law in Europe. Cambridge: Cambridge University Press. Tamanaha, B. (2004) The Rule of Law. Cambridge: Cambridge University Press.

158  N. E. NEDZEL AND N. CAPALDI Walker, G. (1988) The Rule of Law: Foundation of Constitutional Democracy. Melbourne: Melbourne University Press. Wiener, M.J. (1981) English Culture and the Decline of the Industrial Spirit, 1850–1980. Cambridge: Cambridge University Press. Zywicki, T. (2014, 17 July) Law & Liberty. Retrieved 20 December 2017.

CHAPTER 6

The Vanishing of the ‘Rule of Law’

Introduction In this chapter, we shall discuss the unique but precarious status of the ‘rule of law’ in the history of law, the assaults on the ‘rule of law’ by legal positivism and analytic jurisprudence, and the beginning of its ­restoration and defense by Fuller. The ‘rule of law’ has a specific meaning unique to the AngloAmerican legal inheritance. That meaning was first articulated in the works of A. V. Dicey. However, from the time of Dicey’s introduction of a serious discussion and elucidation of the concept of the ‘rule of law’ (1885–1915) until the work of Hayek and Leoni starting in the 1950s, the concept largely vanished from both legal and philosophical literature. There are several important reasons for this, some of which we shall discuss in detail below. First, the Anglo-American conception of the ‘rule of law’ is an anomaly in the general history of the law. Many scholars who study either comparative law or the general history of law are more interested in continuities and convergences than in celebrating or even identifying differences. Second, legal thought, legal scholarship, and even the philosophy of law have been dominated since the post-World War I era by a scientistic approach (social Darwinism, realism, Kelsen’s positivism, Hart’s and Dworkin’s analytic approach, critical legal studies, etc.). In our experience, the only philosophical works legal faculty have read are by Rawls or Dworkin! Third, as we shall maintain below, any © The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4_6

159

160  N. E. NEDZEL AND N. CAPALDI

scientistic approach is befuddled with how to deal with norms. This does not mean that these writers were uninterested in norms. On the contrary, all of these scientistically oriented writers have had a very strong normative agenda. As we shall argue below, that normative agenda can be broadly described as modern liberal or democratic socialist—precisely one which denies the primacy of individual liberty inherent in the ‘rule of law’ as first identified by Dicey. It is not surprising that the author of The Road to Serfdom (1944) would revive and strengthen Dicey’s case in the 1950s. Nevertheless, this has been an uphill battle as seen by the fact that Hayek’s writing and extended discussion on the topic have been almost entirely ignored by mainstream scholarship. Fuller has garnered some attention but mostly because of his confrontational debate with Hart. Until very recently, Oakeshott’s discussion (1983) was not even acknowledged. Our major concern is that given what we have said about spontaneous order, a doctrine has to be pretty deeply and pervasively embedded within a system of belief for it to have validity for the members of the applicable social order. It must be a salient strand in the web of belief characteristic of members of that society. However, the ‘rule of law’ is pretty deeply and pervasively embedded only within the Anglo-American system of belief. Hence, the ‘rule of law’ has validity only in societies whose members characteristically subscribe to that system of belief. Thus, the ‘rule of law’ has validity only for Anglo-American society, its close offspring, and those who seek to replicate it in their society. Given the withering away (e.g., current debate over Brexit) of the distinctive Anglo-American system of belief (that once characterized Englishspeaking societies), and given the assault on that doctrine by positivists and scientistically inclined analytic1 thinkers committed to democratic socialism, we may be facing the prospect of there being no societies left for which the doctrine of the ‘rule of law’ has validity.

History of Law Putting both the advocates of the uniqueness of the Anglo-American conception of the ‘rule of law’ and their detractors into historical ­perspective will help clarify the point. The following brief account puts into historical perspective (a) how these specific writers’ thoughts evolved from earlier versions of the inheritance, (b) how they differed from alternative legal traditions, (c) how

6  THE VANISHING OF THE ‘RULE OF LAW’ 

161

they differed from some of their acknowledged contemporary adversaries, and (d) how their acknowledged adversaries evolved from earlier views of the law. Anthropology: Chaos → Order → Order Through Law

Chaos is the absence of any identifiable legal order or recognized ruler. There are numerous historical examples many of which reflect the breakdown of a previous order, and, as Hobbes warned, it is an ever-present threat. Order provides some degree of assurance of regularity that allows individuals to plan and arrange their lives. It need not be without flaws; it is not necessarily humane, pretty, or enviable except to those who live in chaos. Order is not necessarily accompanied by law; it may be simply the more or less predictable regularities imposed on all by one or by a few. When order is achieved through law, the law provides a set of clear, consistent, and coherent rules applicable to all (although the same rules need not necessarily be applicable to each). What the law achieves is the elimination of some arbitrariness. Even if there is ambiguity and conflict, there is at least some provision for rule-governed adjudication. The essence of law in general is then a set of rules that provides order and eliminates (for the most part but not completely) a large degree of arbitrariness. This order is ‘rule thru law.’ It is possible to have ‘order thru law’ but not the ‘rule of law.’ The Continental legal tradition (civil law tradition) is just such a system of order through law or ‘rule thru law’ as opposed to the ‘rule of law.’ There are important historical reasons for this difference, some of which we have already touched upon. Outline The main point in the history of law with regard to the ‘rule of law’ is whether the law is instrumental or non-instrumental. To say that law is ‘instrumental’ is to say that it is a means to achieving a substantive end(s). To say that a law is non-instrumental is to say that the law is procedural. In Oakeshott’s terminology, a non-instrumental law tells us ‘how’ to do things not ‘what’ to do; a civil association has such laws because substantive ends depend upon individual choice.

162  N. E. NEDZEL AND N. CAPALDI

Belief in some kind of objective order (theological, secular natural law, etc.), eventually, treats law as instrumental. Even if one asserts the existence of objective rights one is flirting with danger—hence the ­reason why Oakeshott dislikes talk of ‘rights.’ ‘Rights’ talk is an appeal to abstractions (not something that emerged spontaneously out of a specific historical context). Inevitably, there will be disagreements about the meaning of these abstractions. That is why Lockean ‘negative’ rights evolved into its opposite, Rousseauean ‘positive’ rights, and therefore how ‘classical’ liberalism evolved into ‘modern’ liberalism or democratic socialism. Adjectives like ‘positive’ and ‘negative’ merely reflect another level of abstraction. It is hard to see this terminology as anything other than intellectual camouflage for one’s favored agenda. Might it be the case that Anglo-American culture does/did a better job of protecting individual liberty because it was rooted in practice and not theory? What happens when law is understood to be part of a human subjective order? The subjective order, positive law, will be interpreted either as a political construct (will of an individual or a legislature) or as the product of custom. The legislature may reflect either an enterprise conception (e.g., some versions of nationalism, Rousseauean General Will, or legislative positivism’s commitment to some sort of secular humanistic expertise on human nature, etc.) or a civil association. In England, customary law was historically the product of judges implicitly committed to the ‘rule of law’ understood as non-instrumental. Politically, England was, as well, historically, a civil association. It is, thus, no accident that the ‘rule of law’ makes its first and sustained appearance in English common law.

Ancient World The ancient world in the West provided two different legal i­nheritances: Classical and Germanic. The difference was noted as far back as the Roman writer Tacitus. The difference has been largely obscured or ignored by writers who want to see a more homogeneous Western legal tradition (e.g., Berman). The difference is a crucial part of our thesis. The Classical world (Greeks and Romans) sought to establish and maintain order through laws that were allegedly rooted in the cosmic order that encompassed both the natural world and the human/social world. What the Greeks added to this was the notion that an explanation in law or anything else required a deduction from first principles (e.g., Euclid, Plato, Aristotle). Even when Aristotle disagreed with Plato on the

6  THE VANISHING OF THE ‘RULE OF LAW’ 

163

origin of the first principles or axioms, he agreed that deduction from first principles was the essence of a good explanation both for establishing rules and adjudication within the rules. It is precisely this focus on deduction that was absent among the Germanic tribes who thought in analogical terms. This has been a crucial difference for the British mind-set. The Romans distinguished among ius civile (specific rules that applied to Romans), ius gentium (the rules among foreigners and their relation to Romans2), and the ius naturale which reflected the cosmic order and ultimately explained even different legal orders. When Romans confronted customary practice that differed from their own they accepted it by ultimately tying it back to natural law and tried, in theory, to reduce it to something cosmic (Cicero). Roman law was codified as the Corpus Juris Civilis (A.D. 529) under the Emperor Justinian I and its rediscovery during the Middle Ages left a permanent mark almost exclusively on the Continental legal tradition. The important thing to note about the cosmic order in the ancient world was that it was understood in the classical conservative sense of referring to an independent and therefore already established form of order or the return to an already established order. In addition to being ‘conservative’ in this sense, it was also understood to be communal. Order through law was meant to resolve actual and potential conflict by preventing any change to established communal order. It eliminated arbitrariness by appeal to an allegedly independent collective communal interest (e.g., Creon [not to be ruled by outsiders] vs. Antigone [will of the Gods]). Conflicts were always understood as the product of wayward individuals. Although there is some concern with preventing arbitrariness toward individuals, there is no notion of protecting or promoting individual autonomy. A second legal inheritance emerged among the Germanic tribes that subsequently invaded the Roman Empire. Their law was rooted in custom or previous practice and its application was understood to be by analogy and not deduction. This was the foundation for the AngloAmerican legal inheritance. It is within this inheritance that the AngloAmerican conception of the ‘rule of law’ developed and to which Dicey, Leoni, Hayek, Fuller and Oakeshott ultimately subscribed. Although there is a huge literature on the so-called common law and the history of English law and a cursory acknowledgment of its difference from the Continental inheritance, much of contemporary legal scholarship (e.g., comparative law, international law) is focused on minimizing or even transcending the difference in favor of the Continental inheritance.3

164  N. E. NEDZEL AND N. CAPALDI

Medieval World The most important development in the Continental medieval world was the rise and development of Christianity and its appropriation of the classical conception of natural law only now understood as the commands of a transcendent God. It is what has now largely become known as natural law but still understood as a reflection of cosmic order. When the Medieval Church was confronted with feudalism and the remnants of Germanic tribal law, it did what the Romans had done, namely, try to tie it back to natural law (Aquinas). Without too much qualification, and the Germanic inheritance of the Anglo-Saxons aside, it can be plausibly asserted that the classical/medieval world subscribed to the view that law reflected an independent and objective cosmic order.

Early Modern World (Post-renaissance) What is distinctive of early modern jurisprudence was the appearance first of a non-denominational natural law (Grotius) and subsequently a totally secularized natural law allegedly rooted in science. The former permitted the maintenance of social order without insisting upon doctrinal uniformity. It was still in an important sense conservative in that it protected religious communities, not individuals, from the arbitrary exercise of power. In the Anglo-American inheritance, God was temporarily allowed to remain as long as ‘HE’ was understood to be a Lockean-Protestant Anglo-American who protected individuals from the arbitrary exercise of power. The wholly secularized natural law became the basis for social change. In the form of what is called the Enlightenment Project, law, rooted in some one or more of the social sciences, not religion, becomes an instrument of social reform, both progressive and radical. Law was no longer the command of God but rather the ‘command’ of an ‘enlightened’ ­sovereign either monarchial or legislative (Bentham). The Enlightenment Project of social technology is the origin of later positivism. Hereafter, ‘positivism’ will carry the connotation of The Enlightenment Project’s social and political agenda of managerial reform by enlightened public servants. The focus shifted, so to speak, from what the law is to what the law should be and therefore shifted to legislation. The transition from Benthamite utilitarianism to positivism to something potentially socialistic or totalitarian should now be obvious.

6  THE VANISHING OF THE ‘RULE OF LAW’ 

165

The whole of what later became positivism and analytic jurisprudence can now be seen in historical context as comprising the following: 1. the priority of politics (emancipated legislation) over law; law is an instrument of politics understood as reform; 2. political norms are empirically verifiable4 as the product of expertise about human nature (i.e., natural law based on the social sciences or the will of the majority hopefully informed by the social sciences); 3. implacable opposition to traditional sources of norms such as custom and religion; the presumption that such traditional sources are a veiled reflection of the political power of some self-interested faction or ‘uneducated’ interest group; 4. a preference for democracy (and subsequently democratic socialism) on the assumption that the populace has been educated to understand and accept social science expertise—although dictatorship (temporary or permanent) is possible should the populace be convinced that dictatorship is vouchsafed by social theory (Kelsen, Schmitt, and fascism in general), or the elite determine that the populace is not ready to decide for itself; 5. rejection of any norm not based on social science and not confirmed, in time, by popular vote.

Nineteenth Century In the late eighteenth and early nineteenth centuries, history became the authoritative social science. The first authoritative legal writer in this vein was Savigny. Savigny opposed natural law because it was based on what he took to be a shallow philosophy, and he opposed the codification movement because it uprooted law from its historical framework. The law evolved as shown both in his authoritative treatment of Roman law and his discussion of national law. New law had to be understood as coherent with previous law. Savigny reasserted the ancient Germanic primacy of practice (not a political agenda) and became highly influential on the Anglo-American inheritance, including Hayek and Oakeshott, but was quickly superseded on the Continent. Other Continental writers saw history as part of a cosmic order that could be read conservatively (Hegel) or radically (Marx). In the latter case, positivism turned history into a theory.

166  N. E. NEDZEL AND N. CAPALDI

We pause to note the presence of writers on the Continent who are more sympathetic to the Anglo-American inheritance (Montesquieu, Constant, Tocqueville, Humboldt, even Kant and Hegel) but that sympathy had no lasting effect. Likewise, there are British and American writers who have sought to reform the Anglo-American inheritance in the direction of the Continental tradition. The latter have provoked the critiques by Hayek and Oakeshott. In the latter part of the nineteenth century, the Enlightenment Project’s progressive and radical legal agenda reappeared in force. In Germany, Jhering understood history as performing a primarily negative role, namely the unmasking of the historical relativity of previous law and asserted that future law should be based on the fundamental truths of the social sciences so that it could become a means to the ends of community and equality. In France, St.-Simon and Comte, who coined the expression ‘positivism,’ saw in history the progression to ‘scientism’ and social science as the basis for a managerial elite to run society. In interesting fashion, the cosmic order does not disappear from Continental jurisprudence. In place of a religiously based and conservative social order, social scientists ‘discover’ the new cosmic order and are eager to use it for a progressive or radical social agenda. The old established order is now seen as the exercise of arbitrary power to advantage some at the expense of true social liberation. In the Anglo-American world, law continued to be understood neither as classically conservative nor progressive but as the accumulated wisdom of the past evolving for application to novel circumstances. Nor did it ever lose its focus both on protecting individuals from the abuses of the arbitrary exercise of power and on enhancing individual autonomy. Nevertheless, it was not immune from the Enlightenment Project. To begin with, Langdell, who had studied in Germany, championed Continental style codification. In addition, the social sciences became an unmasking tool. The so-called American legal realists (Holmes, Gray, Frank) saw in the lack of codification and in the exercise of judicial discretion the imposition of private political bias. Law is only what the judge says it is. Why not simply allow, and in fact encourage, a unified and correct social agenda to be the basis of legal decisions? Certainly, a unified social agenda avoids the arbitrariness and disingenuousness of the dominance of any one social group. It was easy to dismiss defenders of the older view as apologists for the status quo.5 Critical legal studies is the current American version of so-called legal realism.

6  THE VANISHING OF THE ‘RULE OF LAW’ 

167

Twentieth-Century Dominance of Enlightenment Project/Positivism Let us recapitulate the place at which we have arrived. Everyone is agreed that law produces an order that should minimize or eliminate the arbitrary exercise of power. One inheritance insists that appeal to some form of cosmic order inoculates against arbitrariness (primarily Continental inheritance). One inheritance insists that appeal to historically evolving custom performs the same function because there is no way to achieve consensus on any kind of cosmic order that applies to human beings (primarily Anglo-American). Among those who insist on a cosmic order, and in the context of twentieth-century secularism and scientism, some form of the Enlightenment Project or positivism must prevail. This does not deny the presence of those who espouse theologically based natural law, only their relative importance. Positivists have a deep distrust of uncodified law and private law as opposed to public law. Another transition worthy of note is from a focus on legislation as opposed to adjudication in order to promote a favored political agenda to a focus on judicial activism in response to a recalcitrant democratically elected legislature. Legal positivism (which evolves into analytic jurisprudence as we shall see in the next chapter), the dominant intellectual fashion, stresses ‘positive’ law (created by human beings), but it insists that it be postulated on the basis of a scientistic cosmic order, hence its connection with philosophical positivism. Legal positivists reject ‘natural’ law because it is not based on physical or social science and because they regard it as reflecting special political interests. They willfully ignore the fact that their positivism reflects their own political interest.

Positivism (Philosophical Positivism, Logical Positivism, Logical Empiricism, Vienna Circle6 and Legal Positivism) Philosophical positivism is based upon scientism. Scientism encompasses the following: 1. Everything that is true is related to everything else that is true so that it forms a system that can be conceptualized.

168  N. E. NEDZEL AND N. CAPALDI

2.  The system can be expressed as a deductive one, reducible in ­principle, to one basic axiom. 3. All meaningful discourse will eventually be reduced to a logical or syntactical structure. 4. Physical science is the whole truth about everything. Individual human agency cannot be autonomous and is ultimately reducible to something else. 5. All sciences are ultimately reducible to physical science. 6.  The truths of the various sciences are in principle directly or ­indirectly confirmable by our experience. 7.  If there are other statements but their meaning is neither true nor false (e.g., statements of value or norms of any kind) then the meaning can be explained by or reducible to something else (e.g., psychological or sociological or biological statements) which does meet scientific criteria. This view stretches back to the French philosophes and has both an intellectual aim to develop social science as well as a practical aim to produce from the former a social technology. One version of this view understood science to imply that all meaningful statements must be empirically confirmable or logical tautologies (true by definition). It was also maintained (influentially by Hempel) that a valid explanation must ultimately be a deduction from first principles. This came to be known in the Vienna Circle7 as logical positivism. Positivism was not simply a twentieth-century reflection of the importance of science. Positivism existed in the nineteenth century, famously in the works of Comte and Marx. Positivism emerged from the eighteenth-century French intellectual movement called the Enlightenment Project. It is during the modern period going back at least to Descartes and Bacon that the success of physical science promised the possibility of economic growth. This led to an emphasis on more positive accounts of human flourishing in this world.8 This in turn generated the idea of an abstract positive conception of the human good. Rousseau was the first to assert the alleged fundamental goodness of human nature. Bentham (more appreciated in France than in England) is a primary example of someone who asserts that science can establish a positive account of human flourishing. This also underscores the difference between the US founders’ Declaration of Independence and the US Constitution with its Anglo-derived negative conception of rights and focus on avoiding abuse

6  THE VANISHING OF THE ‘RULE OF LAW’ 

169

as opposed to the various French Constitutions with their insistence upon abstract positive rights. Some scholars have downplayed the notion of doctrinal uniformity. They point out that members of the circle did not always agree, that their thinking evolved into several variants,9 and that some who participated (e.g., Wittgenstein) specifically rejected some of the early views. Nevertheless, note that the heyday of the Circle 1928–1934 coincided with an important period in Hayek’s own philosophical development in Vienna, that the Circle published a Manifesto in 1929,10 that the Circle had a left wing11 (Carnap, Neurath, and Reichenbach), and that the manifesto explicitly asserts that the scientific worldview was intended to influence ‘the forms of personal and public life, in education, upbringing, architecture, and the shaping of economic and social life.’12 To begin with, for positivists, normative statements (statements of value or assertions of goodness and evil) are not empirically true statements.13 Normative statements, at best, are expressions of subjective or intersubjective preferences. Hence, all traditional sources of moral authority are illegitimate. One such traditional source is Christianity, but Christianity depends upon a theology of natural law. Statements about God or religion are neither empirically true nor empirically false and hence may be dismissed. Other versions of natural law theory, including secular ones, presume that there is a naturalistic universal human telos as opposed to a theologically based one, that there are ends already built into human nature, and these so-called ends are the empirical basis of all meaningful norms (Rawls, Dworkin). Another traditional source would be the evolving norms embedded in prior practices (Hayek’s and Oakeshott’s favored position). However, these implicit norms do not form a deductive system and they are not based upon a scientifically unassailable theoretical foundation. Hayek’s counter-argument that science itself rests upon inherent norms of practice14 is dismissed by positivists because (within the positivist mind-set) it is not a scientific argument! So, in the end we have an argument about conflicting views of science. This meta-argument about science cannot be won outright by positivists because they cannot establish that their philosophy of science meets even their own criterion of a good explanation! In other words, there is no empirical confirmation of their philosophy of science (Kuhn’s work on the history of science further reinforces this failure). There are further permutations of the argument but none establishes the correctness of the positivist philosophical position.

170  N. E. NEDZEL AND N. CAPALDI

Nevertheless, the philosophical positivists achieved intellectual and cultural dominance despite the inadequacy of their position.15 During this period, Hayek was a voice in the wilderness, described by one writer as one of those ‘dinosaurs that still occasionally stalk on the scene, apparently impervious to natural selection.’16 So how does this intellectual dominance lead to legal positivism? There are norms, including legal ones, but they merely reflect intersubjective preference. The Enlightenment Project assumption behind ­positivism (and later analytic philosophy) is that preferences reflect more fundamental truths about human psychology or biology, etc. The latter alleged truths are exactly that, truths of some kind. Presumably, once we access these truths in alleged scientific fashion and once everyone is educated to recognize these truths, then intersubjective preferences on one level are explainable (and correctable) by reference to the underlying objective scientific truths about human beings. Theoretically, and on the assumption that these truths are indicative of a harmony, we can generate a democratic consensus on public policy. Moreover, there is no limit on the extent to which a positive agenda can inform public policy (hence the allure of democratic socialism). We do not have to commit ourselves to the present articulation of these truths. It is enough to recognize their temporarily hidden existence. The preferences can become scientifically validated if they form a deductive system that rests upon a fundamental norm that itself reflects a collective social good (Grundnorm, otherwise known as a Rousseauean ‘General Will’). Finally, it is the dominance and success of this set of scientistic philosophical preconceptions that explains why the term ‘law’ evolves into its contemporary meaning that it is the exclusive conscious product either of deliberation by those in authority17 or by judicial activism.

Kelsen Continental legal positivism is canonically represented in the work of Hans Kelsen. Kelsen (1881–1973) was born in Prague, moved to Austria as a child, and studied at the University of Vienna. He became a professor of public and administrative law (two areas of law of which Hayek is most suspicious) at the University of Vienna. He helped to draft the Austrian Constitution of 1920 and was appointed to the constitutional court, for his lifetime. He is an example of the Continental attempt to codify (another Hayekian concern) judicial decisions into constitutionally

6  THE VANISHING OF THE ‘RULE OF LAW’ 

171

legislated law. While in Vienna, he was influenced by both philosophical positivism and Freud (criticized by Hayek).18 When the Nazi’s came to power, he moved to the United States in 1934 and took up a position at UCLA. Roscoe Pound proclaimed Kelsen the leading jurist of his time. Kelsen’s debt to philosophical positivism was expressed in his General Theory of Law and State. Echoing Comte, Kelsen proclaimed that ‘the metaphysical-religious dualism of heaven and earth, of God and world, is overcome when man, especially through the advance of empirical science, finds the courage to discard the realm of the transcendent, which is beyond his experience, because it is unknowable, uncontrollable, and therefore a scientifically-useless hypothesis. This confidence in the vigor of his own senses and his reason has now become sufficiently strong to confine his scientific view of the world to empirical reality …. The typical picture of a philosophy which seeks to free itself from all metaphysics can be sketched here only to the extent to which it serves to elucidate the parallel to a legal and political doctrine emancipated from all natural law theory.’19 Kelsen is a positivist in two senses: The term ‘positive law’ is an old one and traditionally reflects the distinction between humanly created law in a specific legal system as opposed to natural law understood as created by God or Nature. In this strict sense, he is a legal positivist. He is also a philosophical positivist in taking scientism or empirical science as his starting point. If you are a philosophical positivist you will be a legal positivist, although this still leaves open the issue of what your specific understanding of science is. Depending on your specific understanding of science, you may or may not take norms into consideration and even how you take them into consideration. To deny the truth of scientism is not necessarily to embrace natural law. There are alternative ways of understanding the role and status of norms. Too many scholars and textbooks assume that you must be one or the other. One of Kelsen’s students and another emigre to the United States was the noted political philosopher Eric Voegelin, author of the New Science of Politics (1951). Voegelin criticized Kelsen and philosophical positivism and its application to the social world such as law. Voegelin argued that positivism’s roots went back to Gnosticism, and ultimately the belief in the possibility of creating a social utopia through science.20 Kelsen responded by charging that Voegelin would overturn the accomplishments of the Enlightenment.21 Voegelin became Hayek’s close friend and was even cited by Hayek.22

172  N. E. NEDZEL AND N. CAPALDI

The dispute between Kelsen on the one side and Hayek and Voegelin on the other has to do with how you understand the status of science. Kelsen deftly demurs on the ultimate status of science, saying that there are limits to what science can explain and that there are inexplicable mysteries, ‘the eternal secret which surrounds the world of experience on all sides.’23 If so, then why take science as your guide? If it is better than the alternatives, then in what sense is it better? Kelsen never explains; he seems content with what science excludes. Hayek and Voegelin clearly state that the practice of science presupposes certain values, so that in the end it is the values that need to be clarified, and no analysis is adequate unless it does so. Kelsen begins by distinguishing between ‘descriptive statements’ (e.g., ‘x is y’) and normative statements (‘you ought to do x’) where the latter expresses a preference. No normative statement can be logically derived from a descriptive statement or set of such statements, because nothing can be logically in the conclusion that was not already in one of the premises. We cannot derive an ‘ought’ from an ‘is.’ Descriptions can be true or false. Norms are neither true nor false; they are either valid or invalid, but never sound. They are logically valid if they are derivable from another higher-level norm. Laws are a subset of normative statements. We can make true or false statements about norms even though this does not make the norm(s) itself true. To provide true statements about laws is to provide a pure theory of law. The study of legal norms is what Kelsen says is legal science. Law is accordingly a system of sanction-prescribing norms. ­ There are several levels of norms: norms that prescribe sanctions and norms that grant power to officials to perform tasks including creating subordinate norms. In order for law to be consistent and coherent, that is, maintain its integrity, it must form a system in which every norm is derived from another until we reach the foundational norm, which Kelsen calls the Grundnorm. The model here is that of a deductive system like ­geometry in which every theorem can be shown to be valid by derivation from previous theorems that are themselves ultimately derivable from the axiom(s). There must be one ultimate axiom (Grundnorm), otherwise there will be the possibility of conflict. This is the polar opposite of the ­common law inheritance. The identity of the Grundnorm is ultimately a matter of sociological fact. (No moral or other judgment or assessment is being made about it.)

6  THE VANISHING OF THE ‘RULE OF LAW’ 

173

The particular Grundnorm depends upon what fundamental assumptions are made by the members of a specific society. ‘The principle of truthfully describing reality and explaining it on a strictly empirical basis, without having recourse to theology or any other metaphysical speculation, is called positivism.’24 Scientific jurisprudence can describe, analyze, and explain ‘a positive system of norms, that is, a normative order established by acts of human beings and, by and large, applied and obeyed ….’25 Positivism can explain means-ends relations scientifically but not ends in themselves. ‘[A] positivistic social science cannot … evaluate a social institution unconditionally, or … attribute to it an absolute value … scientific positivism goes hand-in-hand with relativism.’26 As indicated in the title of his work General Theory of Law and State, Kelsen insists that law and state are identical. This is compatible with unlimited dictatorship: It is an ‘[e]ntirely meaningless … assertion that under a despotism there exists no order of law … The despotically governed state also represents some order of human behavior. This order is the order of law … What is interpreted as arbitrary will is merely the legal possibility of the autocrat to take on himself every decision to determine unconditionally the activities of subordinate organs and to rescind or alter at any time norms once announced, either generally or for a particular case. Such a condition is a condition of law … The demand for dictatorship not uncommon in the modern Rechtsstaat, shows this very clearly.’27 Here precisely is the problem to which Voegelin alluded. Although Dworkin—as we shall see—argues otherwise, it is worth noting here that common law countries do not have or pretend to have a single all-encompassing or collective norm. That is what gives rise to the challenge of interpreting the law or adjudication in common law jurisdictions and exemplifies the appeal of a code in the Continental ­ legal tradition. Hayek will argue that this reflects the importance of the individual in the common law tradition as opposed to the Continental preference for a collective good, even where the latter is arrived at democratically. Here the Continental tradition reflects the importance of Rousseau’s General Will. The ‘General Will’ is what everyone would agree upon if they had all the relevant information. This view will later resonate with what people would decide behind a ‘veil of ignorance’ in Rawls’ theory and in Habermas’ notion of ideal speech. In practice, Europeans have settled for what Rousseau would call the majority will and treat it as the General Will.

174  N. E. NEDZEL AND N. CAPALDI

Kelsen’s own political preference was for democratic socialism as inspired by Rousseau. ‘Rousseau has formulated the question to which democracy is the answer. A subject is politically free insofar as his individual will is in harmony with the “collective” (or “general” will) expressed in the social order … freedom under social order, is ­self-determination of the individual by participating in the creation of the social order.’28 Kelsen rejected previous attempts to distinguish between the law and the state, and he rejected as well the idea that a system could check itself. For him, there is law-state identity. The state and the law represent the same entity. All of culture and society were to be regulated by the state according to legislative and constitutional norms. In short, he envisioned an enterprise association or social collectivity.29 This structure reflects the concept of a fully centralized legal order (Rechtsstaat) in contrast to the existence of decentralized forms of government and legal orders. The Grundnorm is expressed in a sovereign nation’s federal constitution. Kelsen is thus the originator of the Continental conception of constitutional review. The Kelsenian model establishes a constitutional court that reviews and passes judgment on constitutional disputes within the judicial system. In common law countries, by contrast, lower level courts also engage in constitutional review. Many European and Latin America jurists are under the illusion that they have the rule of law because they have constitutional review when, in reality, at best, they have ‘rule thru law.’ Is the ‘rule of law’ reducible to judicial review within a democratic polity? This issue highlights the importance of the distinction between a society committed to individualism and a society committed to a collectivity. Carl Schmitt argued that if a democratically elected Legislature appointed members of the constitutional court, then that court would degenerate into politicized deal making. According to Schmitt, the practice of liberal politics is based on an irrational faith in rational discussion, whereas deals are negotiated by party leaders. Schmitt opposed the separation of powers because it was incompatible with the identity of the rulers and the ruled in what we have been calling a collectivity. This led Schmitt to embrace Nazism (National Socialism). If the composition of the Court is determined by some sort of authoritarian principle, then there is no guarantee that the authorities will appoint judges committed to the integrity of the judicial process. This is Kelsen’s argument against Schmitt. Both Kelsen and Schmitt assume that Germany is what we would call a collectivity or has an overarching

6  THE VANISHING OF THE ‘RULE OF LAW’ 

175

collective good, which they both understood as entailing some form of socialism. They differed on how best to find an articulation that did not reflect the undue influence of special interests. To the extent that government and the legal system are focused on efficiency, this reflects the notion that law is an instrument of social policy for technocrats. This became an increasingly popular conception of the legal profession and those who teach in law schools. Lawyers come to see themselves as ‘public’ servants, rather than protectors of the interests of individual clients. If the Grundnorm is an expression of a collectivity, then it is not an expression of the ‘rule of law’ because the rights of individuals are subservient to that collectivity, no matter how we arrive at the collectivity. This is Hayek’s fundamental objection to Kelsen. Therefore, Hayek insisted that the ‘rule of law’ is a meta-norm which could only function in a culture committed to individual liberty, and it is why Hayek worried that the ‘rule of law’ could easily be undermined by the excesses of democratic politics. In opposition to Kelsen, Hayek maintains that law is not deduction from will: ‘The basic question of what rule ought to be enforced in a particular instance can often not be answered by logical derivation from some expression of will, nor decided by an act of will, but only by a process of ratiocination which shows which is the rule whose application in the particular case satisfies the requirement of being capable of universalization without conflicting with other recognized rules.’30 Hayek asserts that Kelsen provided ‘the ideology of socialism … and of the omnipotence of the legislative power.’31 It was important to Kelsen to discredit theological natural law as a rival form of cosmic order. Kelsen asserted that he was engaged in the science of law. This means that law should be studied as an objective social structure, a structure that is codifiable into a deductive system of rules in which all norms flow from a foundational norm. Such a basic norm avoids or minimizes arbitrariness if it establishes a collective social good not subject to conflicting private interests intent on gaming the system. Whoever articulates the basic norm in an authoritative way should be identifiable scientifically, and for Kelsen that means an empirical investigation into who or what performs that role. The determination of that empirical reality is beyond the scope of judicial science. As a private citizen, Kelsen preferred democratic socialism,32 but admitted his analysis is compatible with despotism, as both Schmitt and Hayek pointed out.

176  N. E. NEDZEL AND N. CAPALDI

Kelsen inadvertently exposed the Achilles’ heel of positivism, namely, the lack of any clear conception of the norms that informed the understanding of the legal system. If a despot makes the decisions, then we are back to order without law. What Kelsen’s analysis does permit is the added clarification or definition of the political apparatus by the legal system. The political system can be defined legally by the rules for the operation of the government, e.g., who can be elected, etc. This still leaves unanswered the question of the status of the norms that inform or govern the formation of the rules of politics. Laws, for Kelsen, must be understood as a set rule (not immediately empirically verifiable but ultimately reducible to empirical statements)— best exemplified in the intersubjective preference of whatever constitutes the sovereign power in society. These preferences must form a deductive system derived from a basic norm (Grundnorm).33 In Germany in the 1920s and 1930s, Kelsen’s supporters maintained that while the sovereign power might be the expression of a single leader, the sovereign power really should (or ought to) be a democratically elected legislature (efficiency argument). At the same time, Carl Schmitt claimed (with a different efficiency argument34) that the sovereign power should be the voice of a single leader. Both Kelsen’s and Schmitt’s theories assume that Germany is what we would call an enterprise association or has an overarching collective good, which they both understood as entailing some form of socialism. They differed on how best to find an articulation that did not reflect the undue influence of special interests. To the extent that government and the legal system are focused on efficiency, this reflects the notion that law is an instrument of social policy for technocrats. This was becoming an increasingly popular conception of the legal profession and those who teach in law schools. We are all familiar with subsequent historical consequences. National socialism under Hitler prevailed in Germany as a form of totalitarianism. Kelsen and the Vienna Circle departed for the United States to try to resurrect European-style socialism. Hayek departed for England and subsequently for the United States, where he initially thought he could avoid socialism of any kind. From Hayek’s point of view, the intelligibility of norms rests upon an evolving but customary practice. Such norms cannot be wholly conceptualized, cannot be understood as forming a neat deductive system, and they are not a reflection of any collective good that is theoretically specifiable. In his discussion of constitutions, Hayek applauds the US

6  THE VANISHING OF THE ‘RULE OF LAW’ 

177

notion—not the Continental view—that the purpose of a constitution is ‘conceived as a protection of the people against all arbitrary action, on the part of the legislature as well as the other branches of government.’35 Moreover, ‘constitutions are based on, or presupposed, an underlying agreement on more fundamental principles – principles which may never have been explicitly expressed, yet which make possible and precede the consent and the written fundamental laws.’36 These norms are embedded in practice (a la Wittgenstein) before the practitioners even understand or articulate them.37 This is not only true of law but it is also true of a market economy. Socialism in all its forms eventually leads to totalitarianism. It undermines any legal system by politicizing it, and it most especially will undermine the ‘rule of law’ that Hayek found in the Anglo-American legal system.

H. L. A. Hart One of the most sophisticated38 applications of positivism to law is to be found in the work of H. L. A. Hart (1907–1992), Professor of Jurisprudence at Oxford University and author of The Concept of Law (1961).39 Writing with clear parallels to the Pure Theory of Law formulated by Kelsen, Hart insisted that he wanted to analyze what law ‘is’ not what some agents think the law ‘ought’ to be, i.e., like all positivists he rejected any external normative framework. In his own mind, Hart thought he was in the tradition both of Bentham and the then current philosophical movement at Oxford which focused on linguistic analysis as represented by G. E. Moore and J. L. Austin (not to be confused with the nineteenth-century jurist John Austin). Hart, who had practiced law before World War II, accepted a position in philosophy at Oxford’s New College right after the war. 40 Hart wrote numerous essays stressing Bentham’s own emphasis on the labyrinthine nature of the common law, the misuse of language as a cover for outrageous philosophical doctrines such as natural rights and as camouflage for defending the status quo. Hart thought that Bentham’s critique of inalienable natural rights (i.e., ‘negative rights’) was especially important. Hart had no interest in or commitment to the norms internal to the British common law tradition. There is no reference to the common law in The Concept of Law. To the contrary, he was a critic of traditional British norms and saw himself in an adversarial position to those

178  N. E. NEDZEL AND N. CAPALDI

norms. Hart married Jenifer Fischer Williams, who was, during the 1930s, a ‘sleeper’ member of the Communist Party of Great Britain. For years afterward, she presided over the ‘Salon of the Left’ at Oxford. Hart considered himself a member of the ‘non-communist Left,’ in which capacity he gave lectures to the Labour Party on closing tax loopholes that were being used by the ‘super-rich’ and expressed animosity toward Margaret Thatcher.41 One suspects that Hart was content with the notion that democratic socialism would prevail on the purely political level. H. L. A. Hart refined Kelsen’s analysis. Although he rejected simplistic attempts to equate legal concepts with empirical entities (e.g., the commands of a sovereign or predictions about the actions of courts), he substituted an analysis of the conditions under which statements that employ legal concepts would be true, and he did so in a way that did not commit him to codification, or a wholly deductive system, or the explicit embrace of a basic norm. Hart began his philosophical analysis with a critique of John Austin. John Austin, the nineteenth-century legal philosopher, had defined a legal system as the commands of a sovereign (an alleged empirical social fact). Hart claimed that John Austin had failed to distinguish primary rules (stipulating specific obligations with penalties for non-compliance) from secondary rules. The latter specified the rules for declaring, modifying, or annulling the primary rules. As such, the secondary rules specified the procedural norms to be followed by all branches of government. A further rule is the rule of recognition, a rule for the application and prioritization of rules. There is a clear analogue here to Kelsen’s Grundnorm. (Remember that Wittgenstein denied that there could be a rule for the application of rules.) Hart’s approach is a rejection of ‘rule scepticism’—a rejection of the Wittgensteinian view, expressed in the Investigations, that there is a pre-conceptual domain that cannot be captured analytically but only explicated. Hart advocated the view that a system of legal rules can be definitively analyzed and conceptualized. Hart claimed that the rule of recognition served as the ultimate source of validity for both primary and secondary rules. In so doing, Hart had to account for the ‘normativity’ of these rules. He did so by maintaining the importance of the ‘acceptance’ of the rules from an ‘internal’ perspective on the part of social agents. Hart went on to specify the internal point of view in what he thought of as a purely scientific (behavioral) terms, namely when agents appeal to it in justifying their actions and in criticizing non-compliance on the part of others.

6  THE VANISHING OF THE ‘RULE OF LAW’ 

179

There are two things that Hart did not do. First, he did not identify the norms of a specific legal system. Second, he did not and could not specify how science could account for why agents made specific appeals. In short, why do we have those norms instead of others? When Hart did turn to the social context, he appealed to social science, specifically behavioral sociology. He cited empirical facts like human vulnerability and limited resources. John Austin had explained the normativity of law in terms of (a) the sanctions imposed on non-compliance and (b) the prudential response of a general habit of obedience. Austin, says Hart, had confused obedience with obligation. Hart agrees that part, but only part, of the normativity of rules can be explained by reference to facts such as the consequences of social practices. The other part of the normativity of rules involves the ‘acceptance’ of the rules from an ‘internal’ perspective on the part of social agents. The normative dimension is not purely factual, but we can identify facts about norms that enable us to identify the norms. Does the social context so understood reveal something about human beings or does it reveal something about the world independent of human beings? If the former, does this reveal something fixed about human nature or something subject to historical development? If it reveals both (or all three) kinds of things (truths about the world, permanent truths about human nature, variable truths about human nature), what is the relationship between (or among) these truths? Hart’s analysis raised more questions than it resolved.42 Hart did not analyze the ‘rule of law’ but the concept of ‘law’ itself. Can his analysis be extended to explain ‘rule of law’? However insightful and helpful Hart’s analysis might be, no purely positivistic analysis can explicate the norms internal to practice. Hart failed to explicate practice. Like his mentor Kelsen, he was content to maintain that norms are external to the legal process, i.e., political.43 This is relevant to an understanding of Dicey, Hayek, and Oakeshott. Let us briefly elaborate the first point. In his famous debate with Fuller, Hart at first resisted the idea that a theorist could or should engage in such an identification. In retrospect, it became clear that Fuller’s position prevailed because without certain general norms, law was indistinguishable from mere order. Hart eventually conceded that he should have said more, but he never specifically discussed the ‘rule of law.’ We think this omission is important because Hart shared Bentham’s distrust of the common law and viewed it as a mask for dominance.44

180  N. E. NEDZEL AND N. CAPALDI

Rawls, who studied with Hart after receiving a Fulbright Fellowship to Oxford University (Christ Church) in 1952, famously supplied an allegedly ‘scientific’ answer. The norms are scientifically endorsed when they are chosen behind a veil of ignorance where we know nothing about ourselves, including our history, and are informed with basic psychological truths. Rawls identified the ‘rule of law’ only with Fuller’s specific procedural list making it at best a form of ‘rule thru law.’ This did not do full justice to Fuller’s views (see below). Unfortunately, Rawls’ quasi- or pseudo-scientific methodology did not result in a consensus.45 H. L. A. Hart’s The Concept of Law (1961) reflected a p ­ hilosophical tradition derived from G. E. Moore.46 Moore’s views were championed at post-war Oxford when Hart joined the philosophy program there. Generally, the task of philosophy is to clarify our common-sense beliefs, as those beliefs are reflected in ordinary language. Philosophy, for Moore, focused on the semantic structure of speech and thought. To analyze in this fashion is to (a) decompose complexes into simple parts and (b) give real definitions of the parts. To give a real definition is to show that usage exhibits a consistent and explicit pattern that is socially (scientifically) confirmable. Hart examined legal discourse and thought he had identified both the syntactical structure (two kinds of rules) and the semantic meaning by tracing out the social structure of rule-making. His approach was similar to Kelsen’s in the sense that he sought to define ‘law’ in both a conceptually rigorous and clear fashion and from a value-free social scientific perspective, presumably without philosophical or normative preconceptions. This is the sense in which Hart is a positivist.47 His views differed from Kelsen’s only in that he did not attempt to identify any basic norm or norms of any specific legal system or tradition. Dworkin subsequently tried to correct this, which he perceived as a deficiency in Hart’s analysis. All subsequent jurisprudence in the Anglo-American world would be focused on supplying what is missing from Hart, the normative social context. In his later writings, Hart was goaded by Dworkin, Raz, and Finnis into addressing the larger political/social context.48 But the best he could do was to insist that a clear understanding of individual rights was the central challenge for moral and political philosophy.49 Most importantly, Hart always opposed the notion of the priority of liberty over equality.50

6  THE VANISHING OF THE ‘RULE OF LAW’ 

181

To the extent that Hart and ordinary language philosophers take semantics as well as syntax seriously, they represent an advance beyond positivism.51 However, other philosophers such as Wittgenstein (Hayek and Oakeshott) claim that while this is all well and good, it does not go far enough. We can only understand semantic notions by reference to how we live and act, not as an abstraction from a way of life. Hayek did not find Hart’s characterization of law ‘as a union of primary rules of obligation with secondary rules (ibid.) very helpful.’ As Hayek said: ‘Though this is of the greatest importance, I find it difficult to regard the development of this distinction as “the decisive step from the pre-legal to the legal world (Hart 91).”’52 A more profound analysis requires the recognition of ‘pragmatics,’ not just semantics. Pragmatics is the study of the relation of language to the users and the social context of that language. To analyze language, we must understand social practice. Such practice is not just a natural event but consists of symbolic activities which presuppose agreement on prior norms and our ability to follow rules. Wittgenstein (and later Hayek in Law, Legislation, and Liberty)53 explained what it meant to follow a rule or apply a rule (e.g., adjudication). To understand a rule is not the same as understanding the truth conditions of the statement of the rule. If this were possible, then total conceptualization (scientism) would be possible. There is no special identifiable mental act of grasping a rule. To recognize when a rule is followed or should be applied is not the same thing as formulating the rule. At each transition in an argument, we are free to reject a specific application. This cannot be formulated or conceptualized in advance, as application of a rule varies with every unique factual situation—the explication of how and why a particular rule applies to new facts and how it is analogous or different from previous instances is part and parcel of common law legal explication. Even the acceptance of an argument or a line of reasoning is itself a new decision not entailed (deducible from) by previous decisions. Even if there are implicit norms in previous practice, no system of rules can contain a meta-principle (Grundnorm in Kelsen and later principles and policies in Dworkin) for the development and application of the rules. Our discourse cannot be understood as the transparent image of an external reality. What makes communication possible is that it is embedded in what we as social agents are doing (practices). All meaning is grounded in social practice.54

182  N. E. NEDZEL AND N. CAPALDI

Raz Like Rawls, Joseph Raz was another of Hart’s students and later a professor of Law at Oxford. He is a self-proclaimed positivist whose goal, like Hart’s, is to explain law in empirical non-normative terms. Going further than Hart, Raz applied this approach to the analysis of the ‘rule of law’ in his 1977 essay ‘The Rule of Law and Its Virtue.’ He does not offer an historical account of the expression, and where he overtly references other writers on the topic, it is only to criticize Hayek.55 He makes no reference to Dicey. Raz wants to leave open the possibility that ‘welfare law and governmental manipulation of the economy also increase freedom by increasing–if successful–people’s welfare. If the rule of law is defended as the bulwark of freedom in this sense, it can hardly be used to oppose governmental management of the economy.’56 According to the early57 Raz, the rule of law is a formal and instrumental concept. Formally, it encompasses a number of features designed to help individuals plan their lives. This helps to explain the difference between mere order and law and order. The Razian rule of law stands in opposition to arbitrary power. The list of features includes some of the same features outlined by Fuller (laws should be prospective, clear, stable) plus features like an independent judiciary. The list is similar to Rawls’ (another Hart student). This is what we would call ‘rule thru law,’ a description of legality and its formal features. Raz concedes that these minimal features could be met by authoritarian regimes. Raz explains that his approach is instrumental in that the rule of law is subordinate to politics. Whatever normative considerations we wish to introduce or to advocate the need to be done on the political level; and this avoids, in Raz’s estimation, trivializing the expression ‘the rule of law’ by those who simply equate the expression with their private political agenda. Raz acknowledges that he is adopting Hart’s conception of law and therefore Raz’s understanding of the rule of law is that it is an instrumental conception of law.58 Given this instrumental view, Raz rejects Fuller’s claim that there is a connection between law and morality. Raz acknowledges that this is not a refutation of Fuller.59 The reduction of the rule of law to ‘rule thru law’ (our expression) also serves an additional purpose. Although the rule of law is an inherent virtue of the law, it is merely one virtue—one aspiration—among several. Conformity to the rule of the law may make the law ‘a good instrument’ for achieving certain [other] goals.

6  THE VANISHING OF THE ‘RULE OF LAW’ 

183

In Raz’ own political theory the state exists to achieve a number of social purposes [here comes the democratic socialism, hence the critique of Hayek]. ‘[S]acrificing too many social goals on the altar of the rule of law may make the law barren and empty.’ From Raz’ point of view, he has tamed the ‘rule of law’ to serve his political agenda, with the implied understanding that his political views are based on a theory with scientific credentials (or pretensions). ‘After all, the rule of law is meant to enable the law to promote social good, and should not be lightly used to show that it should not do so.’60 In 1990, Raz published ‘The Politics of the Rule of Law.’61 In that article, he attempted to go beyond his previous formal version of the rule of law and provide a substantive account of the rule of law in Great Britain. Again, there is no reference to other writers on this subject and no discussion of the history of the common law. Great Britain is treated as an ideal type, namely a non-federal democracy. What Raz now concedes is that the rule of law needs to make reference to judicial adjudication and not just to the legislative act. Adjudication is to be principled in that it seeks coherence between long-established traditions and shortterm exigencies. What does this encompass? First, it retains the formal bureaucratic ‘rule thru law.’ Second, it recognizes that the community has a set of traditional values known to judges, but presumably it goes beyond this. ‘Reliance on common or judicial practices in such societies is likely to lead to evil and oppression. It is likely to favor élite groupings at the expense of others. The reason is that social processes inevitably lead to an over-identification of the judiciary with the (or part of the) élite group in society. Given that sensitivity to the point of view of a certain group or culture cannot be reliably secured except by its members, or people who closely interact with them, [this] … approach of the rule of law is not an ideal in a pluralistic society.’62 Therefore, third, he insists that ‘legal institutions … be loyal to legislation emerging from a democratic legislature, thus enhancing its power.’63 Principled adjudication is the recognition that judicial “decisions both mould the public culture by which they are judged and are responsive to it.”64 What is not clear in this statement is whether Raz thinks that judges ‘make’ law (implication of Hart) or ‘discover’ the law. If the latter, then we are back to custom + tradition; if the former, then we are engaged in disguised politicking. Is individual freedom part of the tradition? According to Raz, civil rights are both presupposed and implied.65 ‘[I]nsisting on the

184  N. E. NEDZEL AND N. CAPALDI

integration of legislation …with legal tradition enshrined in doctrine, the rule of law respects those civil rights which are part of the backbone of the legal culture, part of its fundamental traditions.’66 Where does this leave us? Are we back to Dicey? If so, the later Raz recognizes that the Anglo-American legal inheritance has a unique conception of the ‘rule of law’ that Dicey, Leoni, Fuller, and, as we shall see, Hayek and Oakeshott had already identified. Welcome to the club! Or, this might just be Dworkin-lite, ultimately leaving to ideological judges the final judgment about which traditional values stay and which must go. The decades following the publications by Dworkin and Raz saw an explosion of out-of-control activist judges, of which the Ninth Circuit in the United States is the poster-child.

Positivism Morphs into Analytic Philosophy Positivism came under severe attack in the 1950s. In the ‘Two Dogmas of Empiricism,’ Quine undermined traditional empiricism by asserting (a) that there is nothing independent of different conceptual schemes (ontological relativism) and (b) that different conceptual schemes are alternative readings of experience.67 The significance of Kuhn’s work The Structure of Scientific Revolutions (1962) is that it used the history of science to further discredit the original positivist conception of scientific theories as experimentally confirmable or disconfirmable.68 As Kuhn showed, scientists operate with paradigms, understood as a framework of background assumptions, which structure the way in which experiments are interpreted. Kuhn’s work was followed by the more radical views of Feyerabend who in Against Method69 extended Kuhn’s thesis to argue that paradigms were more than just frameworks within science. Paradigms constituted the entire cultural pre-theoretical context within which theoretical science operated. Science could not, therefore, serve as the arbiter among competing paradigms or pre-theoretical contexts. Instead of jettisoning scientism, philosophers sought to obtain a deeper understanding of science. This continuing commitment to scientism was now called ‘analytic philosophy.’70 This continuing commitment to scientism was reflected in the discipline of philosophy by the initial wave of the misunderstanding of Wittgenstein and later his marginalization. The most influential and professionally successful of these anti-Wittgensteinian technical philosophers who thought that they could conceptualize the pragmatic level were Montague,

6  THE VANISHING OF THE ‘RULE OF LAW’ 

185

Fodor, Katz, Dummett, and Kripke. As we shall see, part of Rawls’ success was due to the congruence of his work with the then fashionable anti-Wittgensteinians. What they now articulated was the notion that science consists of constructing and exploring a hypothesis about the initially hidden structure that explains the common-sense world. For example, we see some objects as ‘blue’; however, the hidden structure of what we see, namely molecules in motion impinging upon our optic nerve, is colorless. Once we discover the initially hidden structure (namely colorless molecules) and the facts about our nervous system, we can explain why we see different colors, why some people might be colorblind, and why we might disagree on the color of what we are seeing. That is, we can resolve disputes. This version of physical ‘science’ is called exploration. It had already been extended to the social sciences in general (Marx and Freud). How might this apply to the value disciples (ethics, aesthetics, social and political philosophy, law, etc.)? First, we introduce a distinction between everyday normative discourse (surface) and the (deep) initially hidden structure of such discourse. Philosophical analysis of normative discourse would then proceed by formulating a hypothesis of the deep structure (e.g., Rawls’ veil of ignorance) of our norms followed by testing whether the deep structure brought coherence to our everyday normative intuitions (what Rawls called ‘reflective equilibrium’). This ­ same kind of analysis could be applied in the philosophy of law, and this specifically is what Dworkin did and why Dworkin thought it was an improvement over Hart. The alleged value of this kind of philosophical analysis is that it permitted the ‘correction’ of ‘some’ everyday legal intuitions in the same way that a deep structure analysis in optics permits us to explain why some people misperceive certain colors. This is where potentially competing explorations becomes contestable, if not disingenuous. Based on already present consensual social norms, we can decide that color blindness is a defect. Are there background consensual social norms about more specific consensual norms? If there are consensual social norms, we would not need further analysis. There is the obvious temptation here to use alleged ‘hidden structure’ accounts to disqualify what does not fit one’s personal views, and therefore this becomes a disguise for a private political agenda. Hart’s successor, Dworkin, insisted that a thorough analysis of law would require specifying the norms that inform the law. In his analysis of Anglo-American law, Dworkin maintained that both political

186  N. E. NEDZEL AND N. CAPALDI

and legal institutions are informed by the same norms so that there is no distinction ultimately between the legislature and the judiciary. The ‘rule of law’ as understood by Dicey apparently was not one of those norms. Theoretically, this explains why the judiciary can review and overrule the political apparatus. Despite deep distrust of judicial discretion, Enlightenment Project legal theory (analytic jurisprudence) leads to the hegemonic managerial role of the judiciary. It now becomes all-important to know who educates and who elects or appoints the judges. Dworkin became wildly popular with law professors.71 Needless to add, no consensus emerged here either among scholars. The old joke applies here: The difference between God and Justices of the US Supreme Court is that God knows he is not a Justice. Despite disagreements, what Kelsen, Hart, Rawls, Dworkin, and o ­ thers like the early Raz share is a commitment to some form of reformist democratic socialism that presupposes some kind of collective or communal good. It should be easy to understand why, given their personal political predilections, some other theorists in the Anglo-American system are also attracted to this kind of system and are understandably envious of the extent to which scholars are cited as authoritative. Nevertheless, there is an intellectual bias. Despite qualifications, they all remain committed to some version of scientism. As a result, democratic decision-making is a form of cosmic order because it bears an analogy to confirmation in scientific debate. For them, democracy is not negotiation among competing interests but the discovery through the debate of the common good. As we have already argued and will further elaborate, a commitment, even partial to scientism, is a commitment to the view that everything has to be related in some basic way to everything else. The notion of a truly autonomous individual in a Kantian-Millian-Oakeshottean sense simply does not fit into such a philosophical perspective. The individual must be part of some collective. This is one reason why practitioners of analytic jurisprudence who have classical liberal leanings are not seen or treated as major players in analytic jurisprudence. Is some form of democratic socialism an accurate account of any legal system? It would seem to be a plausible version of the present Continental legal systems. This is not surprising given that ­ Enlightenment Project positivist analysis originated on the Continent. Moreover, the culture, political traditions, and history of those countries and the countries that adopt the Continental system tend to favor some version of a collective or communal good.72

6  THE VANISHING OF THE ‘RULE OF LAW’ 

187

It is not, however, an accurate description of the Anglo-American legal inheritance. As Dicey, Hayek, Oakeshott, and others are at pains to point out, the Anglo-American legal inheritance has always focused on the so-called negative rights of individuals and the important role of the judiciary in upholding those rights. This is why the ‘rule of law’ encompasses norms that are not present in the Continental legal inheritance; it is why the concept of the ‘rule of law’ presumes the priority of the individual as opposed to the community. It is easy to appreciate why these writers are vexed about the perceived erosion of the ‘rule of law.’ Alas, there is a significant difference between the hidden structure analysis in physics and the same kind of analysis in normative areas (ethics, law, etc.). In the physical sciences, we can actually confirm empirically the existence of entities on the deep (not everyday experience) level such as molecules, microbes, etc. No such counterparts exist in the social world in general and specifically in ethics and law. Precisely because there is no such confirmation available (or possible), there is a profusion of positions. Nevertheless, the most influential analyses terminate in positions that are clearly left-of-center politically in that they advocate a greater governmental role in the regulation of all institutions and the redistribution of resources. That is, analytic philosophy, like its positivist ancestors, embraces socialism,73 just as Hayek had argued. This has important implications for the teaching and practice of law and legal scholarship. There are two reasons for this. A commitment to scientism, the reigning philosophical doctrine in the intellectual world, has a close relationship with a powerful and highly centralized role for government experts. If everything is in principle explainable, then everything is related to everything else. If everything (and everybody) is related to everything (and everybody) else then individual human beings cannot be understood apart from their social interaction. The social interaction is then intrinsic to being human. Human beings cannot be understood as autonomous individuals. The social defines the individual. Proponents of this view identify their opponents as ‘atomists’ whereas they advocate that the social74 dimension is intrinsic to being a human being. Moreover, once we come to understand how everything works then we can predict and control, in fact ought to control, the social world for its sake and benefit. Some form of socialism is logically connected with scientism. On purely intellectual grounds, assuming the truth of scientism, socialism is the correct social/political/legal position.

188  N. E. NEDZEL AND N. CAPALDI

Given the foregoing, if the rule of law is to have any meaning then it cannot mean more than some formalistic limitation on government (early Raz). To argue as Hayek and Oakeshott do that the ‘rule of law’ requires a civil association that maximizes individual liberty is to argue for something that is unacceptable to the vast majority of the intellectual community. Thus, it is no surprise that Hayek and Oakeshott have been marginalized and ignored in much of the scholarly literature. In opposition to the mainstream, Hayek (following Wittgenstein) and Oakeshott would insist that social practice is not a natural event subject to scientific analysis but a symbolic event that relies upon prior tacit agreements. The meaning of a practice is not independent of how agents involved in the practice perceive or understand the practice. The agents’ understanding itself is not explicable at some other level by reference to objects independent of the agents’ understanding/attitude toward even those objects/entities (psychological, biological, etc.), ad infinitum. You can never escape from some prior agreed-upon context. How does all of the preceding relate to the fundamental theses of this book? Precisely because there are different understandings of their prior agreed-upon context and precisely because these prior socio-historical contexts have been different, the Anglo-American legal inheritance is different from the Continental European legal tradition. That is why there has been a specific meaning to the concept of the ‘rule of law’ in the Anglo-American legal context that differs significantly from the meaning of the concept of ‘rule thru law’ in the Continental legal world. Moreover, it is the growth and dominance of an intellectual movement, namely scientism, first as Continental positivism and then as analytic philosophy, that has inspired a backlash (Hayek and Oakeshott would contend an abandonment of) against the notion of the ‘rule of law’ as Dicey, Hayek, and Oakeshott have explained it, and the reduction of Fuller’s insights in his Morality of Law (by the early Raz, for example) to a kind of formalism.75 Precisely because so many legal scholars even in the Anglo-American law think that the ‘rule of law’ is a mere formality that they and many of their European counterparts see no significant difference between the two legal systems. This also explains why some legal theorists such as Loughlin have gone so far as to advocate that the Anglo-American legal tradition should rejoin what they perceive as the fundamental or mainline legal narrative of Continental Europe.76

6  THE VANISHING OF THE ‘RULE OF LAW’ 

189

Relation of Law to Morality How are we to understand the normative dimension of law? The ancients had no such problem because they did not distinguish among religion, law, morality, and politics, and they rooted all of it in the cosmic order. The Christian Church de-divinized the state in order to place the religious institution in the dominant role of apprehending norms. When secular states achieved dominance, they initially acquiesced in separating morality (Church) from politics but proclaimed the superiority of the political to the moral. Later movements to reign in the abuse of political power appealed to secularized natural law. In the Anglo-American world, this was not initially problematic because of the origin of law in the morality of a customary practice that had promoted increasingly sophisticated versions of individualism. Law was institutionalized morality (Oakeshott) where the latter was understood to involve mutual recognition (Kantian categorical imperative of individuals as ends in themselves shorn of metaphysics and theology). The Continent had greater difficulty because morality had always been associated with either religious appeals to dubious metaphysics (natural law) or various conflicting denominations. Continental Positivism offered a secularization of morality by appeal to the social sciences. Opposition to this alleged scientized morality led positivists to impose their morality as a normative political agenda. Law then becomes an instrument of the political agenda and therefore must be de-coupled from any traditional form of morality including custom. Meanwhile in the Anglo-American world, those committed to social reforms (e.g., legal realists)77 that promoted community and equality over traditional individual liberty needed to undermine the established law-morality nexus. Hence the appeal and adoption of Continentalinspired positivism (Kelsen, Hart). When the democratic political structure resisted the agenda it became necessary to locate the reform movement in the judiciary (Dworkin). Norms come already embedded in prior practice. Prior practice reflects spontaneous order and not planned order. Since the original order was not planned, it does not contain self-conscious positive goals. Over time, we become conscious of the norms only because of conflicts, either conflicts over which norm applies in a given case or the realization that two norms which developed independently in different practices conflict in a novel situation.

190  N. E. NEDZEL AND N. CAPALDI

This tells us a number of things. First, our initial awareness of norms is negative78—that is, someone is alleged to be engaging in the practice but not in the correct fashion. A good example of this is the Ten Commandments which primarily tell you what not to do. Second, since critique is immanent there will inevitably be conflicting understandings, that is moral pluralism. Third, there is no Archimedean position from which to resolve the disputes. Fourth, law, in particular, functions to minimize conflict. Minimizing conflict as opposed to promoting a specific form of the good life in the face of moral pluralism has greater survival value. Hayek’s approval of his friend Popper’s principle of falsification (namely, we do not prove a scientific theory but construct experiments to disprove it) is an analogue to this. Real science, for Hayek, does not prove truths but tests their usefulness on a given occasion. Fifth, Hayek’s sympathy for the common law is consistent with this approach. Sixth, the critique of democratic socialism (following Tocqueville and Mill) is that it sets one group’s agenda against another and thereby foments conflict.79 Social justice represents a similar positive agenda. Seventh, this reinforces why universalizability is an important necessary (but not sufficient) condition for a rule.80 It is not surprising that courts are reluctant to enforce positive duties of nonfeasance.

Lon Fuller—The Restoration of the Rule of Law Fuller (1902–1978) was Professor of Law at Harvard University.81 In 1948, Fuller opposed and blocked the appointment of Kelsen for a position at Harvard, declaring ‘jurisprudence should start with justice. I place this preference not on exhortatory grounds, but on a belief that until one has wrestled with the problem of justice one cannot truly understand the other issues of jurisprudence. Kelsen, for example, excludes justice from his studies (of practical law) because it is an ‘irrational ideal’ and therefore “not subject to cognition.” The whole structure of his theory derives from that exclusion. The meaning of his theory can therefore be understood only when we have subjected to critical scrutiny its keystone of negation.’82

6  THE VANISHING OF THE ‘RULE OF LAW’ 

191

In 1964, Fuller published The Morality of Law, in which he argued that all legal systems contain an ‘internal morality.’ In so doing, Fuller took issue with the claim of legal positivism that there is no necessary connection between law and morality. According to Fuller, there are ‘principles of legality’ constitutive of the concept of law. There are eight such principles: The rules must be (1) sufficiently general, (2) publicly promulgated, (3) prospective (i.e., laws cannot be retroactive), (4) at least minimally clear and intelligible, (5) free of contradictions, (6) relatively constant, so that they don’t continuously change from day to day, (7) possible to obey, and (8) administered in a way that does not wildly diverge from their obvious or apparent meaning.83 In a famous debate in 1958 with Hart (Harvard Law Review 71), Hart, (and later Raz and Dworkin and others), responded, (1) that these principles were merely instrumental, not intrinsically a morality; and (2) that conformity with these principles is compatible with gross violations of human rights.84 What followed was 60 years of semantic distinctions in the secondary literature. What does this debate actually reveal?85 1. Any system which does not have the features identified by Fuller is not a legal system; rather, it is a form of order but without law. Nothing the critics have said undercuts this point.86 Without these features, Hart’s own analysis becomes incomplete if not trivial. Any definition of ‘law’ must be understood as recognizing that ‘laws’ are part of a system. 2. The first important question about any specific system is whether it exhibits mere legality (‘rule thru law’) or the ‘rule of law.’ Nothing the critics have said undercuts this point. The fact that positivists are interested in what all systems have in common does not mean that specific systems are in fact identical. 3. Fuller’s critics have (a) obfuscated the second point by presuming without argument that ‘rule thru law’ and ‘rule of law’ mean the same thing. (b) They have uniformly, either explicitly (Raz) or implicitly rejected Dicey’s explanation of the ‘rule of law.’ 4. In so doing, it becomes clear that in answering the question ‘what is law?’ we do not answer the question ‘what is the law?’ No positivistic or analytic analysis can generate an explanation of the norms within a specific legal system (something we have seen in

192  N. E. NEDZEL AND N. CAPALDI

Kelsen and Hart). Positivists and analytic legal thinkers not only take this as a badge of honor but embrace it because it leaves, for them, the important question of norms totally within the realm of politics. This is what they mean when they say that there is no internal morality of law. Historically speaking, this is a false statement about the history of the norms within either the AngloAmerican inheritance or the Continental tradition. In effect, they are arguing that norms ought to be solely within the province of politics (either the legislative body or activist judges)—of course no argument is ever presented for this position.87 5. Fuller maintains that there is a connection between his principles and individual freedom.88 He also presumes the kind of distinction made by Oakeshott between civil and enterprise association.89 Fuller specifically cites Oakeshott’s example from the latter’s essay on ‘Political Education’ when Fuller notes that ‘the freedom of an Englishman is not something exemplified in the procedure of habeas corpus; it is, at that point, the availability of that procedure.’90 6. Therefore, the ‘rule of law’ for Fuller means something specific in the Anglo-American legal inheritance, and that meaning is the same as Dicey’s. The ‘rule of law’ is the (or part of the) morality of Anglo-American law. 7. “Perhaps in time legal philosophers will cease to be preoccupied with building ‘conceptual models’ to represent legal phenomena, will give up their endless debates about definitions, and will turn instead to an analysis of the social processes that constitute the reality of law.”91 With regard to this last point, consider Raz’s argument that a sharp knife is useful but morally neutral as to its use.92 Of course, this is true about knives in general. However, it is totally irrelevant to the claim that in a specific legal inheritance the ‘rule of law’ is not neutral but reflects a specific norm. Raz engages in precisely the kind of intellectual obfuscation that Fuller condemns. 8. In his ‘A Reply to Critics,’93 appended to the revised edition of The Morality of Law, Fuller confronts the hidden political agenda of positivism: ‘The main ingredients of their analysis are not taken from law at all, but what from here has been called managerial direction. One searches in vain in their writings … This omission is conspicuous throughout Hart’s Concept of Law … All run in

6  THE VANISHING OF THE ‘RULE OF LAW’ 

193

terms of providing “instruments of social control” and of enabling “social control to function.”’94 9. In one of the few places where Fuller discusses the rule of law explicitly, he does so by reference to Polanyi’s Logic of Liberty and in a manner that anticipates Oakeshott.95 He asks the question when does adjudication reflect the rule of law? The answer is that it does so in how it functions within a polycentric social order. The latter exists as a structural feature of social systems with many decision centers (Oakeshott’s civil association) as opposed to a single decision center such as the coach of a football team who has managerial authority (Oakeshott’s enterprise association). The practice of adjudication in a polycentric (civil) association is one in which the rules or laws precede the formation of courts. Legal doctrine can only emerge as a byproduct of adjudication if there is an ‘extra-legal community’ that was not itself created by law. 10. What would characterize such rules? Fuller instances the economic market, ‘the working out of our common law of contracts case by case has proceeded through adjudication, yet the basic principle underlying the rules thus developed is that they should promote the free exchange of goods on a polycentric market. The court gets into difficulty, not when it lays down rules about contracting, but when it attempts to write contracts.’96 In short, the rule of law exists when the rules tell you how to do things (Oakeshott’s adverbial) and not what to do. He concludes by emphasizing the importance of the larger cultural/historical context: ‘the rule of law may best be achieved by not aiming at it directly’97 (p. 8). Fuller’s position has been aptly summarized by his editor and executor, Kenneth Winston: Association by reciprocity is formalized most notably in a regime of contract, in which social order is the cumulative product of innumerable individual agreements effecting voluntary exchanges of goods and services. The paradigm of such a regime, on a large scale, is a market economy combined with the private ownership of property. Association to achieve common aims is more commonly found in small or intimate settings, such as families, neighborhood groups, or nonprofit organizations.

194  N. E. NEDZEL AND N. CAPALDI Fuller sometimes suggested that common aims are a source of spontaneous ordering, typically requiring few explicit rules and little formal structure. In a large society, however, members’ interests are too disparate to sustain communal enterprises, and a vertical line of command is required even if it is answerable ultimately to democratic majorities. Thus, Fuller was skeptical of legislative control based on a notion of the public interest or the common good. Accordingly, he favored a conception of legislation which views laws as baselines for the self-directed pursuits of citizens, securing only the minimal restraints on conduct necessary for continuing interaction. The result is an impersonal scheme of duties and entitlements, without the imposition of specific ends by legislators.98

Notes





1.  Labels are always somewhat misleading. When we speak of ‘analytic’ thinkers or ‘analytic’ philosophy or ‘analytic’ philosophy of law, we specifically mean those who are committed to ‘scientism’. There are a number of thinkers who, if asked, might characterize themselves as ‘analytic’ but are not formally committed to ‘scientism’. Some of them are even committed to some version of ‘realism’ without commitment to ‘scientism’. They do so for a number of reasons: to indicate a methodological approach, to identify the intellectual community they are addressing, to distinguish themselves from ‘Continental’ thinkers, etc. Some of them are defenders in a variety of ways of individual liberty. Among them we count Eric Mack, Doug DenUyl, Doug Rasmussen, David Schmidtz, Jerry Gaus, Jan Narveson, the late Tibor Machan and Robert Nozick, John Kekes, Elaine Sternberg, and others. Is this an intellectually adequate account or even a best defense of liberty (or way of life) is another question for another day. For that discussion it will be useful to employ Roy Tseng’s (2003, pp. 169–174) distinction between ‘radical individualism’ (which we attribute to ‘analytic’ defenders of liberalism) and ‘traditionalist individualism’ which Tseng attributes to Oakeshott. 2. Savigny, and later Leoni, emphasized the extent to which Roman law was based more on evolving practice. Nevertheless, the Roman Law inheritance in Western Europe was primarily influenced by Justinian (Greek cultural part of the Empire) and especially its appropriation by the Church with its emphasis on the divine cosmic order. 3. See, for example, the works of Loughlin and Allison. A good deal of legal scholarship is now produced by professors of law at universities rather than judges, etc. who are intellectually biased in favor of theory.

6  THE VANISHING OF THE ‘RULE OF LAW’ 











195

The Continental tradition is much more hospitable to this role than the Anglo-American judicial world. Moreover, since law schools are now housed within universities, and most universities have faculty committed to social engineering, the ethos of the Enlightenment Project now dominates law school faculty. 4.  The alleged dispute between natural law and positivism is not about the separation of law and morality, nor about whether law is based on norms. It is about whether those norms reflects a traditional non-political domain. Nor is there an issue of whether positivists have a problem with norms. Positivists merely relocate the norms to the political domain and make politics the basis of law. 5. See J. C. Carter (2018). See also Grossman (2007). 6. It is difficult to find non-partisan accounts of the history of philosophy, especially twentieth-century philosophy, in part because there are conflicting/competing conceptions of what philosophy is. The Stanford Encyclopedia of Philosophy, as well as many other reference works on philosophy, lacks entries on ‘philosophy’, ‘analytic philosophy’, ‘positivism’, and ‘logical positivism’, although there is one on the ‘Vienna Circle’. Moreover, during the twentieth century it became fashionable in ‘analytic’ circles (e.g., Quine) to distinguish the ‘doing of philosophy’ (high priority and status) from writing on the ‘history of philosophy’ (low status and not really philosophy). 7. As its name implies, the circle consisted of a group of philosophers in Vienna, under the leadership of Rudolf Carnap. 8. See Becker (1962, Chapter Four), for an exposition of the position that the dream of a technological utopia is the common inheritance of liberals, socialists, and Marxists. 9. Philosophical positivism encouraged some historical work on the history of science, notably Thomas Kuhn. As a result of the work of Kuhn and many others, it became increasingly embarrassing to defend the original positions of the Vienna circle. Nevertheless, the overall agenda (from science to public policy) survives and in later variants such as analytic philosophy that still reflects the agenda. Even some later philosophers nourished in this tradition who became its highly respected critics (e.g., Richard Rorty) still maintain the political position without the original intellectual framework of scientism. 10. Hahn et al. (2012). 11. Uebel (2005). 12. Sahotra (1996, pp. 321–340). The most programmatic member of the Vienna Circle, Otto Neurath, was actively involved in the Social Democratic Party in Bavaria. He articulated in unequivocal fashion the utopian goals of social engineering. After seeing the fruits of central

196  N. E. NEDZEL AND N. CAPALDI economic planning during wartime (World War I), Neurath (1973, p. 140) argued that market economies would be replaced by a communal economy: ‘In a socialized economy the living standards and wages of everybody will be fixed by … decrees … they will not be decided by contract …’ According to Anders Wedberg (1984, vol. 3, p. 222), the ideas of Otto Neurath, inspired Carnap who asserted ‘that the great problems of the organization of the economy and the organization of the world at the present time, in the era of industrialization, cannot possibly be solved by the “interplay of forces”, but require rational planning. For the organization of [the] economy this means socialism in some form; for the organization of the world it means a gradual development towards a world government’ (1963, p. 83). Another positivist who shared Neurath’s enthusiasm for planning was Hans Reichenbach, who had been a leader of the Socialist Youth Movement in Germany. In his book, The Rise of Scientific Philosophy (1951, p. 7), Reichenbach praised Marx for advocating the application of science to the social world. Reichenbach (1951, pp. 292–302) maintained that social democracy was the form of government most compatible with relativism. 13. The idea that there are solitary and empirically verifiable statements has also been discredited (e.g., Quine). It is now generally accepted that individual statements are part of a larger background framework. The philosophical focus has now shifted to determining the status of the background framework. Those committed to scientism still maintain that there is some sort of objective determination; those opposed (Hayek and Oakeshott) deny that there is anything other than historical explication. 14. Hayek (1973, p. 6). 15. Positivism played a significant role in allowing those who objected to traditional sources of moral authority to use positivism as a stick with which to beat those traditional sources and institutions. Those seeking a radical reorientation of society will be forced to find another form of intellectually legitimacy, and they will do so in the latter permutation of scientism now known as analytic philosophy. See the discussion of Dworkin in the next Chapter. 16. Quinton (1967, p. 2). With regard to the discussion of the ‘rule of law’ it is useful to note that Hayek’s works during the period dominated by philosophical positivism consisted of the Road to Serfdom (1944), Cairo Lecture (1955), and the Constitution of Liberty (1962). When Hayek returned to the topic in the 1970s he acknowledged the work of Hart, Fuller, Rawls, Dworkin, and Oakeshott. Only Leoni, Oakeshott and Raz (for negative purposes) acknowledged Hayek. 17. Hayek (1961, p. 207; 1973, p. 136). 18. Hayek (1979, pp. 173–174).

6  THE VANISHING OF THE ‘RULE OF LAW’ 



197

19. Kelsen (1945, p. 433). 20. For Voegelin’s critique of Kelsen’s theory of law see Voegelin (1927). 21. Stewart (2012). 22. Hayek (1963, pp. 239, 495). 23. Kelsen (1945, p. 433). 24. Kelsen (1954, p. 11). This book is a rebuttal of Eric Voegelin’s 1952 book of the same title. 25. Ibid., p. 20. 26. Ibid., p. 11. Kelsen seems to believe, without argument, that the requisite social science is sociological. He never considered the possibility that psychology might provide scientific support for the uniformity of basic human motives as did Bentham and others in the British liberal tradition. This strikes us as indirect evidence of a commitment to seeing public policy from the macro or social perspective only. 27. Hayek (1955, p. 27) quotes from Kelsen’s 1925 work Allgemeine Staatslehre (Berlin, pp. 335–336) which was never translated into English. 28. Kelsen (1945, p. 285). 29. Oakeshott will agree with Kelsen on law-state identity, but insist that the ‘rule of law’ can only exist in a state which defines itself as a civil association. Kelsen clearly identifies with an enterprise association. 30. Hayek (1976, p. 52). 31. Hayek (1976, p. 53). 32. Kelsen (1957, pp. 5–6): ‘[S]uppose that it is possible to prove that the economic situation of a people can be improved so essentially by so-called planned economy that social security is guaranteed to everybody in an equal measure; but that such an organization is possible only if all individual freedom is abolished. The answer to the question whether planned economy is preferable to free economy depends on our decision between the values of individual freedom and social security. Hence, to the question of whether individual freedom is a higher value than social security or vice versa, only a subjective answer is possible.’ 33. During this historical period, scientistically inclined thinkers were obsessed with reducing everything to the ‘one’ thing. One example of this was the Sheffer stroke (using one symbol for all of logic). Russell and Whitehead thought they could reduce mathematics to logic. They used the Sheffer stroke in the 1927s edition of Principia Mathematica as a replacement for the ‘or’ and ‘not’ operations of the first edition. Kurt Gödel showed that this could not be done. See Capaldi (1998). 34. Prior to the achievement of consensus some individual or individuals who recognize the truths before others, where the others merely operate as special interest groups, are obliged to form a temporary dictatorship or technocracy.

35. Hayek (1961, p. 178). 36. Hayek (1961, p. 181). 37.  This epistemological point is sometimes misleadingly characterized in American jurisprudence as ‘original intent’. 38. Without denying Hart’s brilliance, it is difficult in retrospect to see what the point of his endeavor was. Is there a genus of ‘law’ of which specific legal systems are species? Is Hart engaged in a social scientific endeavor? If so where is the empirical evidence that he studied a multitude of legal systems? Do different legal systems share anything significant or ­superficial in common? Could it be that what distinguishes them is their different normative frameworks? Can one get from the analysis of the meaning of ‘law’ to the meaning of ‘legal system’? 39. Priel (2011) asserted that Hart had redefined the domain of jurisprudence. 40. Hart, like Kelsen, was influenced by the dominant philosophical trends of the first half of the twentieth century. Academic ethical philosophy in the English-speaking world focused on linguistic issues of the meaning of moral terms. The focus on semantics was accompanied (officially) by a complete disdain for practical issues. Ethical philosophy was dominated by two dogmas: first, moral neutrality, the insistence that the conclusions of moral philosophy are neutral with regard to normative issues. A distinction was made between meta-ethics—the focus on conceptual issues and normative ethics, questions about the truth of particular ethical judgments. The proper focus of philosophers was to be confined to meta-ethics and, moreover, the results of meta-ethical inquiries have no relevance for normative conclusions. The second dogma, the fact-value problem, asserted that there was an impenetrable logical barrier between facts and values, such that no one could legitimately draw conclusions about what ought to be from factual premises about what is. 41. Hart (2012). 42. Given the claim by some that Hart was the most important legal philosopher of the twentieth century, the only truth we can ascribe to it is that ‘importance’ is defined by the size of the secondary literature generated. Hart did try to address normative issues. We think that his views are neither clear nor compelling. His discussion of the minimal content of natural law is anthropological speculation. Hart clearly rejects Bentham’s view of natural rights. In ‘Are There Any Natural Rights?’ Hart argues for what seems to be a negative right to freedom, namely the equal right to be free. Accordingly, the possibility of contractual agreements giving rise to contractual rights and obligations depends on the parties to such agreements exercising their equal right to be free in the course of making those agreements. At the same time, the equal right to be free is used to



198  N. E. NEDZEL AND N. CAPALDI

6  THE VANISHING OF THE ‘RULE OF LAW’ 

199

explain why people who freely impose costs on themselves to facilitate a public good have a positive right to impose on all who benefit from that good the obligation to finance it. Hart’s much later ‘Utilitarianism and Natural Rights’ reveals Hart’s temptation to return to an anti-utilitarianism natural rights stance because of the attacks on utilitarianism by Rawls, Nozick, and Dworkin. 43. Positivist philosophers with a more conservative political bent tended to see positivism as a bulwark against what they considered the surreptitious introduction of a political agenda in what should be a value free analysis. This led to widespread discussion in the social sciences on whether there could be value-free social science. 44. Nevertheless, Hart’s political philosophy is very much left of center. ‘Hart … belongs in the camp of social democratic liberalism rather than that of pure classical liberalism. For he insists that we ought to recognize the moral imperative of securing to all persons the conditions of the value as distinct from the mere existence of liberty … The same considerations perhaps also account for his willingness to accept some degree of paternalism into his critical principles.’ MacCormick (2008, p. 189). In his critique of R. M. Hare in ‘Legal and Moral Obligation’ Hart (1957) objected as too ‘protestant’ the idea that morality had to reflect an autonomous self-legislating moral agent. Morality. For Hart, is a social conception. 45. In his later work, Rawls appealed to an alleged ‘overlapping consensus’. However, as H. T. Engelhardt conveyed it to us, it is not simply the case that there are significant ethical disagreements about substantive issues. Many if not most of these controversies do not appear to be resolvable through sound rational argument. On the one hand, many of the controversies depend upon different foundational metaphysical commitments. As with most metaphysical controversies, resolution is possible only through the granting of particular initial premises and rules of evidence. On the other hand, even when foundational metaphysical issues do not appear to be at stake, the debates turn on different rankings of the good. Again, resolution does not appear to be feasible without begging the question, arguing in a circle, or engaging in infinite regress. One cannot appeal to consequences without knowing how to rank the impact of different approaches with regard to different ethical interests (liberty, equality, prosperity, security, etc.). Nor can one un-controversially appeal to preference satisfaction unless one already grants how one will correct preferences and compare rational versus impassioned preferences, as well as calculate the discount rate for preferences over time. Appeals to disinterested observers, hypothetical choosers, or hypothetical contractors will not avail either. If such decision makers are truly disinterested, they will

200  N. E. NEDZEL AND N. CAPALDI choose nothing. To choose in a particular way, they must be fitted out with a particular moral sense or thin theory of the good. Intuitions can be met with contrary intuitions. Any particular balancing of claims can be countered with a different approach to achieving a balance. In order to appeal for guidance to any account of moral rationality one must already have secured content for that moral rationality. Oakeshott’s (1983, p. 170, n. 13) comment on Rawls is as follows: ‘I have excluded from this account the reflections of some recent writers (e.g., John Rawls and Bruce Ackerman) because, although they present a state as an association ruled by jus, they identify jus as a consideration of “fairness” in the distribution of scarce resources, and “fairness” as what rational competitors, in certain ideal circumstances, must agree is an equitable distribution. Here, lex, if it exists at all, is composed of regulations understood in terms of the consequences of their operation and as guides to the achievement of a substantive state of affairs.’ 46.  The Continental philosophical counterpart to Moore is Husserlian phenomenology. 47. MacCormick (2008, pp. 11–12) so identifies Hart and defines legal positivism as ‘all laws owe their origin and existence to human practice and decisions concerned with the government of a society and that they have no necessary correlation with the precepts of an ideal morality.’ Under this way too-broad definition, everyone except a natural law legal theorist is a positivist. The more important issue is whether, and what kind of, norms underpin particular legal systems. Hayek, Oakeshott, Raz, and Dworkin address this issue. The former two find the ‘rule of law’ as a significant norm in the Anglo-American legal world; the latter two do not. 48. Hart (1955) insisted on the ‘equal right of all men to be free’. Is the equal right to be free the same as a right to equal freedom? It is plausible to see Hart advocating some form of positive rights and therefore an activist role for government. This would be incompatible with Hayek’s and Oakeshott’s view of the rule of law. 49. Hart (1979). 50. Hart (1973). 51. Hayek (1976, p. 56). 52. Hayek (1976, p. 158, n. 3). 53. It is interesting to note the extent to which Wittgenstein and Hayek were part of a Continental European tradition stretching back to Dilthey. Dilthey also influence the development of pragmatics in Heidegger, Gadamer, and the hermeneutic tradition. Heidegger argued that the distinction between language sense, (intension) and reality (reference, extension) is derivative from social context. The influence of Dilthey can be seen in the work of Oakeshott. It can be argued that

6  THE VANISHING OF THE ‘RULE OF LAW’ 

201

the Wittgensteinian position is also part of the British and American pragmatic intellectual traditions. The Anglo/American intellectual inheritance, with the notable exception of Hayek and Oakeshott, was overwhelmed in the twentieth century by the cultural triumph of scientism and the arrival of the positivists. Still, there is an important difference. Continental philosophers (Heidegger’s relation to Nazism, Habermas to democratic socialism) interpret the social context as an enterprise association, and this is what distinguishes Hayek and Oakeshott from them. 54. ‘Language - I want to say -is a refinement, in the beginning was the deed.’ Wittgenstein (p. 546; 1980, pp. 31, 46). 55. He cites Hayek’s 1944 book The Road to Serfdom, and The Constitution of Liberty. 56. Raz (1979, p. 220, n. 9). 57. Raz (1979). 58. Ibid., p. 223, n. 11. 59. Ibid., p. 223, n. 10. 60. Ibid., p. 229. 61. J. Raz (1990). 62. Raz (1996, p. 373). Since Raz does not cite anyone it is difficult to determine whom he has in mind as holding this rigid conception of the role of adjudication. It is worth noting that Hayek also is worried that judges will sympathize more with certain well-off folks—like landlords—and make/discover law that favors those folks over others—like tenants. For Hayek, this provides a rationale for legislative action to counter-act this misdirection with the process of judge made/discovered law. 63. Ibid., p. 374. 64. Ibid. 65. Ibid., pp. 376–377. 66. Ibid., p. 376. 67. Quine (1951). 68. Kuhn (1962). 69. Feyerabend (1975). 70. Capaldi (1998). 71. In the twentieth century, many legal scholars tacitly assumed that Rawls is the correct philosophical model and Dworkin is the correct legal model because Rawls and Dworkin are the ones most respected and praised by the most prestigious and influential members of the philosophical community of scholars. 72. See Lautenbach (2013) for a recent attempt by a Continental writer to describe how the rule of law differs because of a different historical development in the U.K., France, and Germany. Nevertheless, Lautenbach

202  N. E. NEDZEL AND N. CAPALDI













does not recognize the difference between protecting ‘individual’ rights and promoting ‘human’ rights. This is her definition of the rule of law: ‘legality; judicial safeguards; separation of powers and an independent judiciary; democracy; and human rights’ (p. 19). She insists that ‘Legality [is]: The Central Element of the Rule of Law Concept’ (p. 37). 73. Sesardic (2016). 74. The social dimension is further asserted not to be the product of spontaneous order among contracting individuals but a reality of its own. 75.  See discussion of Fuller infra at text accompanying note 81 and following. 76. This also explains, in part, why there are two different intellectual camps arguing over Brexit within the U.K. 77. The observant reader will have noticed that we tell this story in historical terms. Advocates of the positivist position precisely because they appeal to an a-temporal physical scientific framework eschew history and appeal to alleged logical structures such as ‘you cannot drive ought from is’; fans of social science will appeal to the psychology of the judge or the sociology of oppressive systems. 78. This is what gives some context to so-called ‘negative’ rights. 79. One could argue that the alleged ‘right to revolution’ and the second amendment reflect the view that there is moral pluralism and that individuals need to be prepared to defend themselves from the imposition of positive agendas with which they disagree. 80. This is why Kant insists that there are several formulations of the categorical imperative, one of which is that we treat individuals as ends and not only as means. 81. For a very good discussion of Fuller and his (unrecognized by him) kinship withHayek see Postema (2011, pp. 142–162). 82. Fuller (1948–1949, 1, p. 496). 83. Fuller (1969, pp. 33–38). 84. See also Dworkin (1965a, b, 2011), Raz (2011, ch. 11), and Kramer (2003, ch. 3; 2008, ch. 6). 85. Fuller understood his participation in this debate as a ‘kind of showdown on legal positivism.’ Letter to C. Galvin, 29 November 1957. Fuller Papers in Harvard Law School Library. 86. Finnis (1980, p. 274): ‘A tyranny devoted to pernicious ends has no self-sufficient reason to submit itself to the discipline of operating consistently through the demanding processes of the law…’ Keep in mind that the Nazi’s passed retroactive laws. 87.  On this issue, Dworkin will eventually come to the same conclusion as Fuller in Dworkin’s own critique of Hart’s positivism. See the discussion in the next chapter of the transition from positivism to analytic

6  THE VANISHING OF THE ‘RULE OF LAW’ 

203

jurisprudence. In any case, Fuller would not have agreed with Dworkin’s concept of ‘principles’. Since Dworkin was an important member of the ‘club’ once he criticized positivism it was now alright to recognize some value in Fuller’s analysis. 88. See Fuller (1969, p. 162): ‘Every departure from the principles of the law’s inner morality is an affront to man’s dignity as a responsible agent’; Fuller (1965, p. 665): ‘There is … in an ordered system of law, formulated and administered conscientiously, a certain built-in respect for human dignity’; see Fuller (1969, pp. 204–223; 1968, pp. 105–106; 2001, pp. 320–327). 89. Fuller, ‘The principles of Social Order,’ in J. R. Pennock and J. Chapman (eds.), Two Principles of Human Association (Durham, NC: Duke University Press: 1981), pp. 67–85 (originally published in 1969 in Nomox XI). 90. Lon Fuller (2001, pp. 47–64). 91. Fuller (1969, p. 242). 92. Raz (1979, pp. 225–226). 93. One of the few secondary sources to acknowledge Fuller’s critique of positivism’s political agenda and Fuller’s emphasis on the liberty of the individual is Rundle (2012); see pp. 22, 115–117, 140, 188–189. Rundle further distinguishes Fuller from Dworkin (about whom we shall say more in a later chapter) because ‘the former speaks to a phenomenon – the moral work done by the relationship between legal form and agency – which presupposes the legal subject as an agent prior to the point at which law constitutes respect for that status [italics added]’ p. 189. 94. Fuller (1969, pp. 214–215); see also pp. 207–210, 212–213. Compare to Oakeshott’s discussion of ‘subscription’ to the law. 95. Fuller (1960). 96. Ibid., pp. 4–5. 97. Ibid., p. 8. 98. Fuller (1980, p. 67); Winston’s (ed.), note to ‘Two Principles of Human Association.’ Oakeshott was familiar with Fuller’s writings and alludes to Fuller in his own essay on the rule of law.

References Becker, C.L. ([1932] 1962) The Heavenly City of the Eighteenth Century Philosophers. New York: Yale University Press. Capaldi, N. (1998) The Enlightenment Project in the Analytic Conversation. Dordrecht: Kluwer. Carnap, R. (1963) My Philosophical Development. In P.A. Schilpp (ed.), The Philosophy of Rudolf Carnap. LaSalle, IL: Open Court.

204  N. E. NEDZEL AND N. CAPALDI Carter, J.C. ([1907] 2018) Law, Its Origins, Growth and Function. London: Forgotten Books. Dworkin, R. (1965a) “Philosophy, Morality, and Law: Observations Prompted by Professor Fuller’s Novel Claim.” University of Pennsylvania Law Review, Vol. 113, No. 5, pp. 668–690. Dworkin, R. (1965b) “Law’s Elusive Morality.” Villanova Law Review, Vol. 10, No. 4, pp. 631–639. Dworkin, R. (2011) Justice for Hedgehogs. Cambridge, MA: Harvard University Press. Feyerabend, P. (1975) Against Method. London: New Left Books. Finnis, J. (1980) Natural Law and Natural Rights. Oxford: Oxford University Press. Fuller, L. (1948–1949) “The Place and Uses of Jurisprudence in the Law School Curriculum.” Journal of Legal Education. Fuller, L. (1960) “Adjudication and the Rule of Law.” American Society of International Law Proceedings, Vol. 1, pp. 1–8. Fuller, L. (1965) “A Reply to Professors Cohen and Dworkin.” Villanova Law Review, Vol. 10, No. 4, pp. 655–666. Fuller, L. (1968) “Freedom as a Problem of Allocating Choice.” Proceedings of the American Philosophical Society, Vol. 112, No. 2, pp. 101–106. Fuller, L. (1969) The Morality of Law. Revised edition. New Haven, CT: Yale University Press. Fuller, L. ([1980] 2001) The Principles of Social Order: Selected Essays of Lon Fuller, ed. Kenneth Winston. Revised edition. Portland, OR: Hart Publishing. Grossman, Lewis A. (2007) “Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anticodification.” Yale Journal of Law & the Humanities, Vol. 19, No. 2, Article 2. Available at: http://digitalcommons.law.yale.edu/yjlh/vol19/iss2/2. Hahn, Hans, Neurath, Otto, and Carnap, Rudolf ([1929] 2012) Wissenschaftliche Weltauffassung. Der Wiener Kreis (English translation). The Scientific Conception of the World. Berlin: Springer. Hart, H.L.A. (1955) “Are There Any Natural Rights?” Philosophical Review, Vol. 64, pp. 175–191. Hart, H.L.A. (1957) “Legal and Moral Obligation.” In A.I. Melden (ed.), Essays in Moral Philosophy. Seattle: University of Washington Press. Hart, H.L.A. (1973) “Rawls on Liberty and Its Priority.” University of Chicago Law Review, Vol. 40, No. 3, pp. 534–555. Hart, H.L.A. (1979) “Utilitarianism and Natural Rights.” Tulane Law Review, Vol. 53, pp. 663–680. Hart, H.L.A. (2012) “Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman.” Journal of Law and Society (Blackwell), Vol. 32, No. 2, pp. 267–293. Retrieved 27 March 2012.

6  THE VANISHING OF THE ‘RULE OF LAW’ 

205

Hayek, F. (1955) The Political Ideal of the Rule of Law. Cairo: National Bank of Egypt. Hayek, F. (1961) The Constitution of Liberty. Chicago: University of Chicago Press. Hayek, F. (1963) Constitution of Liberty. Definitive edition. Chicago: University of Chicago Press. Hayek, F. (1973) Law, Legislation, and Liberty, Vol. I. Chicago: University of Chicago Press. Hayek, F. (1976) Law, Legislation, and Liberty, Vol. II. Chicago: University of Chicago Press. Hayek, F. (1979) Law, Legislation, and Liberty, Vol. III. Chicago: University of Chicago Press. Kelsen, H. (1945) General Theory of Law and State. Cambridge, MA: Harvard University Press. Kelsen, H. ([1954] 2004) A New Science of Politics. Piscataway, NJ: Transaction Books. Kelsen, H. ([1957] 2013) What is Justice? Justice, Law, and Politics in the Mirror of Science. Clark, NJ: Law Book Exchange, Ltd. Kramer, M. (2003) In Defense of Legal Positivism: Law without Trimmings. New York, NY: Oxford University Press. Kramer, M. (2008) Where Law and Morality Meet. New York, NY: Oxford University Press. Kuhn, T. (1962) The Structure of Scientific Revolutions. Chicago: University of Chicago Press. Second edition with postscript (1970). Lautenbach, G. (2013) The Concept of the Rule of Law and the European Court of Human Rights. Oxford: Oxford University Press. MacCormick, N. (2008) H.L.A. Hart. Stanford: Stanford University Press. Neurath, O. (1973) Through War Economy to Economy in Kind. Dordrecht: Reidel. Oakeshott, M. (1983) On History and Other Essays. Indianapolis: Liberty Press. Postema, G.J. (2011) Legal Philosophy in the Twentieth Century: The Common Law World. Dordrecht: Springer. Priel, D. (2011) “H.L.A. Hart and the Invention of Legal Philosophy.” Problema, Vol. 7, No. 5, pp. 301–323. Quinton, A. (ed.). (1967) Political Philosophy. Oxford: Oxford University Press. Quine, V.V.O. (1951) “Two Dogmas of Empiricism.” Philosophical Review lx, pp. 20–43. Reprinted in 1953. From a Logical Point of View. Cambridge, MA: Harvard University Press. Raz, J. ([1977] 1979) “The Rule of Law and Its Virtue.” Law Quarterly Review. Republished in The Authority of Law: Essays on Law and Morality, 1979. Raz, J. (1990) “The Politics of the Rule of Law.” Ratio Juris 3; Reprinted in Chapter Seventeen of 1996. Ethics in the Public Domain. Oxford: Clarendon.

206  N. E. NEDZEL AND N. CAPALDI Raz, J. ([1979] 2011). The Authority of Law. Second edition. New York, NY: Oxford University Press. Reichenbach, H. (1951) The Rise of Scientific Philosophy. Berkeley: University of California Press. Rundle, K. (2012) Forms Liberate: Reclaiming the Jurisprudence of Lon L. Fuller. Oxford: Hart Publishing. Sahotra, S. (ed.). (1996) The Emergence of Logical Empiricism: From 1900 to the Vienna Circle. New York: Garland Publishing. Sesardic, N. (2016) When Reason Goes on Holiday: Philosophers in Politics. New York: Encounter Books. Stewart, Iain. (2012) “Kelsen, the Enlightenment and Modern Premodernists.” Australian Journal of Legal Philosophy, Vol. 37, pp. 251–278. Tseng, R. (2003) The Sceptical Idealist: Michael Oakeshott as a Critic of the Enlightenment. Thorverton, UK: Imprint Academic. Uebel, T. (2005) “Political Philosophy of Science in Logical Empiricism: The Left Vienna Circle.” Studies in History and Philosophy of Science Part A, Vol. 36, No. 4, pp. 754–773. Voegelin, E. (1927) “Kelsen’s Pure Theory of Law.” Political Science Quarterly, Vol. XLII, No. 2, pp. 268–276. Wedberg, A. (1984) A History of Philosophy, Vol. III (Bolzano to Wittgenstein). Oxford: Clarendon Press. Wittgenstein, L. (1980) Culture and Value. Oxford: Blackwell.

CHAPTER 7

Rediscovery of the ‘Rule of Law’ in Hayek

Introduction Friedrich Hayek (1899–1992),1 famed Nobel Prize recipient in economics, received a doctorate in law from the University of Vienna in 1921 and maintained a lifelong interest in it.2 Consequently, Hayek brings a great deal to the discussion of the ‘rule of law,’ including a thorough knowledge of the Continental legal tradition. Briefly stated, the ‘rule of law’ evolved as a form of spontaneous order within the English common law inheritance, and its primary consequence was the protection of individual liberty. Eighteenth- and nineteenth-century attempts to establish it in France and Germany ultimately failed. Not only did France and Germany have historically different conceptions of law from that of England, but the intellectual dominance of Enlightenment Project positivism further subverted that transference. As someone who witnessed that subversion in twentieth-century Vienna as well as the subsequent rise of totalitarianism, Hayek devoted a large part of his scholarly life to reiterated explanations of the true meaning of the ‘rule of law’ and warnings about its potential loss. Both Hayek and Oakeshott were uniquely positioned, as well, to understand the later versions of the connection between scientism and social technology that continued to threaten the ‘rule of law.’ Hayek’s specific interest in the ‘rule of law’ was reflected in three main3 publications: The Cairo Lectures in 1955 (in which he argued that © The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4_7

207

208  N. E. NEDZEL AND N. CAPALDI

the German Rechtsstaat of the first half of the nineteenth century was in part an embodiment of that notion before historicism4 and positivism undermined it); The Constitution of Liberty in 1960 (in which he expanded his original treatment to detail the development of the ‘rule of law’ in the Anglo-American context); and Law, Legislation, and Liberty from 1973 to 1979. The latter he intended to be his definitive statement on the topic, but it is also important for three other reasons: It rebuts the attempt to reduce law to the status of handmaiden of politics through legislation; it recognizes the later evolution of positivism as prominently expressed in the analytic thought of Rawls5 and Dworkin; and it acknowledges the philosophical kinship of his work to that of Oakeshott.

Continental Tradition As we have remarked on it in previous chapters, the Continental Legal Tradition originated in the Greco-Roman intellectual world, was conceptualized in terms of a collective political good by Justinian and was further developed as an enterprise association by Roman Catholic Christianity. This advocacy of a collective identity as opposed to individual or personal liberty was canonically expressed in the eighteenth century by Rousseau in his conception of the ‘General Will.’ Hayek was acutely aware of this, and he emphasized it repeatedly beginning with the Cairo Lectures and extended throughout his other works. He acknowledged that the medieval world had the modern conception of liberty to some extent (as opposed to the Ancient Greek conception), but it disappeared on the Continent with the advent of absolute monarchy.6 Subsequent developments on the Continent were largely determined by Justinian’s Code7 ‘[W]hen the art of legislation was rediscovered, it was the code of Justinian with its conception of a prince who stood above the law that served as the model on the Continent.’8 ‘[T]he powerful centralized administrative machinery which absolutism had built….[became the] bureaucracy [which] concerned itself much more with the welfare and the needs of the people than the limited government of the Anglo-Saxon world… .’9 Moreover, he explained, Continental jurisprudence has been shaped almost entirely by public lawyers. Their conception of public law (roughly equivalent to constitutional law) ‘is chiefly responsible for the sway not only of legal

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

209

positivism (which in the field of private law just does not make sense) but also of the socialist and totalitarian ideologies implicit in it.’10 The French Revolution led into this conception precisely because of its different historical and cultural context, despite the fact that the French philosophes were influenced and inspired by Montesquieu’s (and others’) descriptions of the English legal tradition. ‘However well these institutions which had grown up in England had worked in the environment of traditions and beliefs to which it belonged, its evolution had left some strange gaps….these anomalies could not escape the Continental students who by deliberate legislation hoped to equal and improve upon what Britain had achieved by slow growth.’11 Even though the French Revolution was ‘inspired by the ideal of the Rule of Law, it is questionable whether it really helped the advance towards that ideal….[rather it] opened the doors for that arbitrary will against which the Revolution had originally been directed … much more anxious to assure that the executive organ should in all respects carry out their will than that the individual should be protected against the power of the executive. In the later stages of the Revolution, moreover, the precursors of modern socialism already began to raise their voices against the whole principle of merely formal equality and demanded égalité de fait instead of mere égalité de droit.’12 The difference between equality in fact and equality under the law reveals the gulf between the two concepts. Even the extreme separation of powers in France came to mean protection of ‘the administrative authorities against any interference by the courts and thus to strengthen, rather than to limit, the power of the state.’13 The case of nineteenth-century Germany is even more interesting.14 Hayek asserts that the rule of law was ‘most fully elaborated’ in ‘the early nineteenth century discussion in Germany.’15 He specifically claims that ‘[Kant’s] celebrated “categorical imperative” is indeed little more than an extension to the field morals of the basic idea underlying the rule of law.’16 It is within this context that he notes Dicey’s mistake: Dicey was not familiar with the German system of administrative courts designed to limit precisely the kind of arbitrary power of administrative or regulatory agencies. In the 1860s and 1870s, the new administrative courts which were then created were however ‘meant to be independent courts concerned with questions of law, and it was hoped that in the course of time they would achieve complete legal control of administrative action.’17 Certainly, one can make the case that in the writings of Kant, von Humboldt (who inspired Mill), Fichte, and Hegel, there is the first

210  N. E. NEDZEL AND N. CAPALDI

real discussion that individual freedom requires the ‘rule of law’ for its full fruition and that the very meaning and purpose of the Rechtsstaat is to embody it.18 Between 1848 and 1870, however, classical liberalism collapsed in Germany.19 According to Hayek, in the late nineteenth and early twentieth centuries there were four movements that contributed to undermining the ‘rule of law’: ‘legal positivism, historicism, the “free law” school, and the school of “jurisprudence of interest”.’ What they had in common was ‘the dislike of any limitation of authority by rules of law and [they] shared the desire to give the organized forces of government greater power to shape social relations deliberately according to some ideal of social justice.’20 One feature to which Hayek gives special attention is the Continental, and especially German (e.g., Kelsen), preoccupation with systematization in the form of codes (deductive reasoning) as opposed to AngloAmerican case law (inductive and analogical reasoning). In both the Cairo Lectures and in The Constitution of Liberty, Hayek reflects his Continental training by seemingly endorsing the predictability provided by civil codes. He first endorses the deeply rooted tradition of case law: ‘[W]hatever advances it [codified law] achieved, at least in theory, over the prototype in the countries of the common law … the possession even of the most perfectly drawn up legal codes can be no adequate substitute for a deeply rooted tradition and the advantages which the former may give may not outweigh those of the latter.’21 At the same time, Hayek saw an inherent conflict between a system of case law and the ideal of the Rule of Law, reflecting that because common law judges constantly create law, common law is inherently less predictable than civil law systems where judges merely apply preexisting rules. ‘[T]hough the much lauded flexibility of the common law may have been favorable to the rise of the Rule of Law so long as general opinion tended in that direction, the common law also shows, I am afraid, less resistance to its decay once that vigilance is relaxed which alone can keep liberty alive.’22 Hayek at this stage seemed to believe that case law was inferior to codified law. His argument is that case law only works if we do not forget the norms on which it is built. But (a) case law is a better example of spontaneous order; (b) case law embodies custom that cannot be reduced to theory and therefore is less likely to be out of touch with the customary values on which it rests; and (c) case law only becomes a menace when it is frozen by stare decisis.23 Hayek had apparently changed

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

211

his mind or modified his opinion by the time he wrote his later work, Law, Legislation, and Liberty. ‘The whole movement for codification has been guided by the belief that it increases the predictability of judicial decisions. In my own case even the experience of thirty odd years in the common law world was not enough to correct this deeply rooted ­prejudice, and only my return to a civil law atmosphere has led me seriously to question it.’24 This prejudice, moreover, leads to the mistaken view that ‘only what has thus been expressed in statutes should have the force of law.’25 Having mentioned the German preference for systematization, it is worth noting Max Weber’s so-called English problem. Weber contended that the market economy (capitalism) required an extreme degree of rationality on the part of institutional structure and individuals. He noted that the first most successful market economy was the British economy,26 but concluded that its success occurred not because of but despite its ‘deviant’ judicial system.27 According to Hayek, a market economy does presuppose a previously established and supportive legal system.28 However, ‘[t]o be guided by what Max Weber calls “purposive rationality”…is an impossibility.’29 Alluding to what Oakeshott would call a civil association (not to be confused with the civilian legal tradition of the Continent), Hayek maintains that ‘a true common interest of the members of a Great Society … [is not the pursuit of] any particular common purposes but merely [the] desire [for] appropriate means for the pursuit of their respective individual purposes.’30 It is worth adding that Hayek’s fame as an economist rests on his claim that markets are inherently unpredictable and evolve in ways that cannot be captured by any theory. A legal system, like common law, in which law must itself evolve is far more likely to be in sync with and supportive of a market economy. Thus, as Hayek implicitly posited, the alleged predictability of a codified legal system is likely over-rated with regards to support for a market economy.

Critique of Scientism in the Social Sciences (Economics and Law) Hayek objected to positivism for two reasons: First, it was based on a false philosophy (namely scientism) and second, it led to the disasters of democratic socialism (Enlightenment Project managerialism). Hayek

212  N. E. NEDZEL AND N. CAPALDI

shared with his cousin Wittgenstein a contempt for epistemological realism—the misguided belief that knowledge mirrors external struc­ tures (and by implication that there is social structure independent of what all agents think, and can be discovered by technocrats). The Hayekian argument against the possibility of rational socialist economic planning is a critique of the realist epistemology implicit within the socialist enterprise. The conclusion of his critique is that any economic program that is based on the view that economic value is objective (in the sense of mind- or preference-independence) is mistaken. What is significant is that all three thinkers (Hayek, Wittgenstein, and Oakeshott) are engaged in a sort of philosophical therapy that is central to their respective projects, by which they mean to bring us back to the non-metaphysical use of language and to show us how the movement from everyday use to metaphysics leads to confusion and to what they argue are false conclusions. Such confusions, Hayek argues, are behind those schools of thought that hold ‘all rules or laws must have been invented or explicitly agreed upon by somebody’ and are thus subject to judgment according to how well they conform to the intentions of their inventors. Among these misleading associations are the ideas of ‘social justice’ and a ‘just’ price. The only condition that must be adhered to is the recognition that no single substantive purpose can be understood to be the goal of either a market or society as a whole. We must tolerate the existence of moral pluralism, that is, multiple organizations whose members may pursue goods contrary to the goods pursued by other organizations. However, toleration does not extend to the acceptance of intolerance. An organization devoted to the destruction of the larger civil association cannot be tolerated. Hayek is among the heirs to the Copernican Revolution in philosophy, a revolution that he carries into the sphere of economics and law. A realist epistemology presupposes that there is a real objective order to the social world, including the economy, and that it is possible to conceptualize that order. Hayek maintains that (a) there is a market order, but (b) the market order is spontaneous (unplanned)—hence has no externally induced overall purpose, and (c) although it is possible to describe that order, it is not possible to conceptualize that order, if by conceptualize we mean synoptically grasp and predict future permutations of the order. It is not possible to conceptualize that order because there is in the market a background of inarticulable knowledge. The market order is an example of spontaneous order, which Hayek

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

213

describes as a discovery procedure. Competition is a process of creative discovery (as well as Schumpeter’s ‘creative destruction’), the discovery of new products, services, and the creation of new preferences to the destruction of prior, inferior products and services. Entrepreneurship creates new opportunities, new states of affairs. Reading Hayek in light of Oakeshott’s first essay of On Human Conduct helps us to recognize this usually neglected aspect of Hayek’s economics. Each action creates a new context within which subsequent understandings will be formed and against which both old and new understandings must be rethought. All conduct both enacts a prior self-understanding, and alters the context within which that understanding is obtained. Thus, all conduct brings about novel contexts and novel understandings. The market is an extended order within which various enterprise associations may exist, but which cannot itself be an enterprise association.31 Oakeshott would agree that in the end knowledge is not reducible to representation. It also embodies customs, practices, traditions, maxims, rules of thumb, habits, and forms of conduct that cannot be reduced to theory. Individuals engage in economic activity with each other through the communication of information about demand and supply as conveyed by prices—the amount at which people are willing to pay or sell. Prices, however, do not exist in one place or one person’s head. Prices exist in exchange transactions and therefore reflect spontaneous order. A government that imposes price controls does not enhance economic transactions but frustrates them and leads to unanticipated consequences. Analogously, law that emerges from custom and judicial interpretation and reinterpretation, like prices, reduces conflict and enhances exchange. Legislation that clarifies, resolves conflicts, and brings coherence to existing customs can also enhance exchange, but legislation that imposes abstractions engenders more unanticipated conflict and leads inexorably to a cycle of distortion. Spontaneous orders lack a substantive purpose, but that makes it possible to pursue many such goals within the context of a spontaneous order. That is what Oakeshott calls ‘civil association.’ Spontaneous orders or structures function according to non-instrumental rules. Because these orders are defined by end-independent or non-instrumental rules, they cannot be said to aim at or achieve any substantive purpose. The ends that spontaneous order serves are the separate ends of those individuals, in all their variety and contrariness. A spontaneous order is not composed of individuals subject to the commands of managers, but of

214  N. E. NEDZEL AND N. CAPALDI

individuals whose actions conform to universally applied rules of just conduct, which Oakeshott calls ‘conditions of adverbial desirability’ that are immaterial to the object of individual pursuits.32 Hayek (and Oakeshott would agree) argues that the substantive arrangement of the components of spontaneous orders cannot rightfully be called just or unjust. This is because they are not intended to fulfill any particular purpose; general compliance with the rules of just conduct provides the conditions within which individuals may pursue their own purposes. Like Oakeshott, Hayek does not deny the value or importance of teleocratic institutions or enterprise associations. He does not advocate the reduction of all substantive, personal relationships—like the family, marriage, friendship, and community—to contractual relations or non-instrumental rules. ‘[I]f we were always to apply the rules of the extended order to our more intimate groupings, we would crush them.’33 Hayek supports the policy of an economic safety net even though he holds that market competition is the best way to organize the economy and that a safety net can become an impediment to the operation of competition. Hayek’s economic argument applies to the rule by law. The ‘rule of law’ can exist only within what Oakeshott calls a civil association; law will otherwise degenerate into an enterprise association. The ‘rule of law’ is unnecessary in collectivist politics where the assumption is that all disputes could be resolved in parliamentary discussion because of the alleged prior existence of an ultimate teleology or the General Will. In the Road to Serfdom, Hayek asserted that free markets and the potential for the ‘rule of law’ were extinguished in Germany by late nineteenthcentury positivism. Hayek has abandoned the notion that there is a common good, even a Smithean invisible hand that tacitly assumes some kind of harmony. What Hayek has done is to collapse the distinction between communitarianism and collectivism. He opposes the notion of planning and how it can be imposed upon us. Socialists have a collectivist conception of the ‘common good’ to be strived-for in an enterprise association. Hayek does acknowledge the need for government institutions, or what he calls ‘the rule of law’ which is different from the law of rules. To the extent that the ‘rule of law’ expresses neutral procedural norms within which individuals pursue their private ends, the ‘rule of law’ is the common (procedural) good. In the Road to Serfdom (1944, Chapter 6), Hayek defined the rule of law as ‘[w]ithin the known rules of the game the individual is free to

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

215

pursue his personal ends and desires certain that the powers of government will not be used deliberately to frustrate his efforts.’34 In short, the rules of the game do not determine the outcome. His thesis is that central planning and certain forms of government regulation of the economy are incompatible with the ‘rule of law’ precisely because they seek to achieve specific outcomes.35

The Second Coming of Positivism: Analytic Jurisprudence Rediscovers Norms As we discussed in the previous chapter, positivism came under severe attack. Instead of jettisoning scientism, philosophers sought to obtain a deeper understanding of science. This continuing commitment to scientism was now called ‘analytic philosophy.’36 What they now articulated was the notion that science consisted primarily of constructing a hypothesis about the initially hidden structure that explained the common-sense world. Philosophical analysis of normative discourse would then proceed by formulating a hypothesis of the deep structure (Rawls’ ‘veil of ignorance’) of our norms followed by testing whether the deep structure brought coherence to our everyday normative intuitions (what Rawls called ‘reflective equilibrium’). This same kind of analysis could be applied in the philosophy of law, and this specifically is what Dworkin did and why Dworkin thought it was an improvement over Hart’s legal philosophy. The alleged value of this kind of philosophical analysis is that it permitted the ‘correction’ of ‘some’ everyday legal intuitions.

Dworkin Ronald Dworkin (1931–2013), an American and Rhodes scholar, succeeded Hart in 1969 as the Chair of Jurisprudence at Oxford. Later, he became Professor of Law at New York University School of Law and Professor of Philosophy. Rawls and Dworkin are linked both philosophically and politically. Both Rawls and Dworkin ascribe to the state an overall collective goal in some form of redistribution, which they term ‘equality.’ In the case of Rawls, it is the maximin principle. In short, Rawls and Dworkin both conceive of the state as a kind of enterprise association by assigning a collective goal to it. For Dworkin, jurisprudence is reconnected to

216  N. E. NEDZEL AND N. CAPALDI

political philosophy. In many ways, Dworkin saw himself as an advancement or evolution from Rawls as well as Hart in that Dworkin too is offering what we call an exploration and what Rawls called ‘reflective equilibrium.’37 Dworkin is well known in political theory for his book Taking Rights Seriously (1977) and in jurisprudence for his books A Matter of Principle (1984) and Law’s Empire (1986). In the latter two works, he rejects positivism,38 specifically in his critique of Hart and his insistence that a theory of law is about what law ought to be, a theory of how cases ought to be decided. Dworkin contends that within our legal judgments, we must recognize the existence of moral principles that express our conceptions of fairness and justice and not just social rules of a peculiar kind.39 In two important respects, Dworkin and Hart are in agreement. Both deny the view that norms are purely subjective (i.e., both deny emotive views of ‘value’); both deny that norms are recovered or rediscovered by explication of previous historical contexts.40 Courts do take the past into consideration, but the past was now to be understood by exploring a hypothesis about the hidden structure of such practice. Dworkin criticizes Hart precisely upon this point. In moving from elimination to exploration, and in rejecting explication, analytic philosophy of law terminates in a situation where (1) norms are recognized as substantive entities, (2) which cannot be reduced to a set of facts, and (3) where attempts to explore the hidden structure of our norms cannot be divorced from substantive political views. In Dworkin’s terminology, explication is a defective form of conversational interpretation wherein we focus on the self-conscious purposes of the authors and participants. What was needed was ‘constructive interpretation’ which reaches the hidden purpose of social practice. Dworkin focused his discussion on the process of judicial reasoning, specifically what he calls ‘hard cases,’ that is, cases that cannot be decided simply by appeal to formal rules. Dworkin rejects what he describes as the ‘rule book conception’: Namely that the power of the state should never be exercised against individual citizens except in accordance with rules explicitly set out in a public rule book available to all; that ‘government as well as ordinary citizens must play by these public rules until they are changed, in accordance with further rules about how they are to be changed, which are also set out in the rule book.’41 On the contrary, judicial decisions reflect not only rules but policies and principles as well. Policy referred to the collective goals of the community as determined

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

217

by a representative democracy. Principles were embodied in the e­ volving moral and political standards of the community, the ‘shifting, developing, and interacting standards’ reflected in ‘institutional responsibility, statutory interpretation … precedent, [and] the relation of all these to contemporary moral practices ….’42 The most important of these principles were ‘rights’ which functioned as ‘trumps’ and were to be understood in terms of distributive fairness. In Law’s Empire, Dworkin rechristened positivism as ‘conventionalism’; he critiqued decisions based only on policy which he called ‘pragmatism’ and advocated what he called ‘law as integrity’: decisions combining convention and policy but undergirded primarily by principle. Judges have, in Dworkin’s view, the right/duty to disobey the law. This permits courts to overrule or correct some moral principles that people hold dear because such principles are often wrong. Dworkin has a ‘theory of mistakes’43 which permits justices to discard some precedents—thereby exemplifying our contention that one of the main purposes of a hidden structure exploration is to permit the theorist to disregard any practice with which the theorist disagrees. Whereas in Taking Rights Seriously Dworkin postulated the right of citizens to equal concern and respect from their government (sounds like equality before the law), in Law’s Empire Dworkin advocates a communitarian politics of fraternity. In the latter book and in the light of criticism from advocates of critical legal studies (CLS), Dworkin recognized that there could be alternative or competing hypotheses thereby gutting the right answer thesis. Dworkin conceded that there could be competing accounts of those substantive views but apparently no way of deciding which account is correct. Therefore, he went on to argue that an understanding of law requires a ‘constructive’ interpretation of the institutional history44 of the legal system. The constructive interpretation requires that courts interpret the legal data (legislation, cases, etc.) with a view to articulating an interpretation that best explains and justifies past legal practice, thereby preserving the integrity of the law. Clearly, there are competing interpretations, for example, of the US Constitution. This competition is not a disagreement about the meaning of the text but disagreement about a larger political vision. According to Dworkin, conservative jurists who appeal to the intention of the authors are actually, disguising their private political agenda behind a ‘choice of interpretive style.’45 This maneuver on Dworkin’s part is an example of further exploration. When rival explorations

218  N. E. NEDZEL AND N. CAPALDI

clash, the rivals offer a further exploration of what is behind the motives of those who reject one’s own favored exploration. In any other logical context, this would clearly amount to the ad ­hominem fallacy. In Dworkin’s assimilation of legal theory to political theory, public law is interpreted as securing individual rights, thereby allowing law to coexist with the demands of the modern bureaucratic state. Constructive interpretation ‘is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.’46 Dworkin attributes a teleological direction to legal interpretation47—thereby instancing Hayek’s claim that, in our terminology, subscribers to the equality narrative inevitably appeal to teleology and that teleology is necessary for the discovery of an enterprise association—a master collective goal. The ‘Grundnorm’ is a ‘Grundgoal’ of collectivism. Dworkin searches for ‘the more comprehensive idea of a good life,’48 the ‘value of integrated values,’49 to understand the non-instrumental integrated values of ethics…to understand them holistically and interpretatively, each in the light of the others, organized … in the fashion of a geodesic dome … elaborating its role in an overall design fixed by the others … All this sounds, no doubt, impossibly and even perhaps unattractively holistic. But I see no other way ….’50 Finally, ‘[i]t is easier to find a deep sense of rightness in a unified, integrated set of values than in a shopping list.’51 This is why he insists, without proof, that there can be no ultimate conflict between liberty and equality. Ultimately, the definition of law is equated with the exercise of centralized coercion. Law is defined as ‘What can … give anyone the kind of authorized power over another that politics supposes governors have over the governed … Each conception’s organizing center is the explanation it offers of this justifying force.’52 A society that ‘accepts integrity as a political virtue thereby becomes a special form of community, special in a way that promotes its moral authority to assume and deploy a monopoly of coercive force.’53 What legitimates authority is not the consent or acquiescence or voluntary acceptance on the part of the governed but ‘the more fertile ground of fraternity, community, and their attendant obligations.’54 Although Dworkin rejects Hart’s notion of a rule of recognition such that there is a master rule that identifies valid rules, Dworkin nevertheless holds that the constructive interpretation provides the ‘right answer’ so that Dworkin opposes the notion that judges have total ‘discretion’ in difficult cases. Dworkin invokes the metaphor of Judge Hercules, an

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

219

ideal judge who constructs a theory that best fits and justifies the law as a whole. According to Dworkin, Hercules would always come to the one right answer. Dworkin’s Hercules is the counterpart of Kelsen’s Grundnorm, of Rawls‘ ‘veil of ignorance’ and of Habermas‘ ideal speech situation,55 in that they are all idealized methods of arriving at valid norms. Judge Hercules is Dworkin’s expression of Rousseau’s General Will. Rousseau distinguished among the individual will, the group will, the majority will, the will of all (unanimity), and the General Will. Dworkin, like Rousseau, does not confuse the majority56 with the General Will. It is what would be decided by someone who had all the relevant information including the relevant principles of interpretation. It is the legal analogue of the super-computer that is supposed to overcome Hayek’s argument against central planning. ‘The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author – the community personified.’57 The members of this community are not bound because of consent but ‘accept that they are governed by common principles, not just rules hammered out in political compromise.’58 You are obliged to obey this law because you are part of the ‘community’s scheme.’59 This is a reassertion of the communal tradition that stretches back to antiquity and is most famously represented in the modern world by Rousseau. It is the collective goal of the community to advance the positive right of equality of its citizens (not equality before the law but equal concern and respect). This conception of law on Dworkin’s part stands in stark contrast to the views of Hayek and Oakeshott in which the ‘rule of law’ reflects procedural agreement on how to live in a world in which there is no substantive agreement. It should come as no surprise that Dworkin subscribes to ‘rule thru law’ or what he calls ‘legality,’ and that he is dismissive of what is ‘sometimes more grandly called, the rule of law.’60 Dworkin actually attributes this view to Dicey and claims that Dicey had in mind ‘substantial’ equality,61 although he does concede that Hayek relates it to liberty.62 In his book Sovereign Virtue, Dworkin advocates ‘equality of resources.’ Since natural endowments are morally arbitrary and since every person is entitled to equal concern and respect in the design of the structure of society, moral arbitrariness should not affect the distribution of resources in society. Hayek specifically rejects this Dworkinean argument for redistributive equality.63

220  N. E. NEDZEL AND N. CAPALDI

Allan, Unger, and Critical Legal Studies There is a significant difference between the hidden structure analysis in physics and the same kind of analysis in normative areas (ethics, law, etc.).64 In the physical sciences, we can actually confirm empirically the existence of entities on the deep (not everyday experience) level such as molecules, microbes, etc. No such counterparts exist in the social world in general and in ethics and law in particular. Precisely because there is no such confirmation available (or possible), there is a profusion of positions. Nevertheless, the most influential analyses terminate in positions that are clearly left-of-center politically in that they advocate a greater governmental role in the regulation of all institutions and the redistribution of resources (Enlightenment Project social technology). That is, analytic philosophy—like its positivist ancestors—leads to some form of democratic socialism,65 just as Hayek had argued. This has important implications for the teaching66 and practice of law and legal scholarship. T. R. S. Allan Trevor Allan exemplifies the previous point. In his book, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford, 2001), he maintains that the appeal to principles exemplified in Dworkin is the rule of law. Given Dworkin’s account of law and adjudication, there is no need for any additional concept of the rule of law. Dworkin’s account has the virtues of consistency, coherence, and honesty. Allan, however, wants to dub the appeal to principles in adjudication as ‘the rule of law.’ In addition to confounding, as does Dworkin, the roles of the legislature and the adjudicators, what Allan does not establish is how we are to tell which principle or set of principles should prevail. Besides thereby reducing law to politics, he opens the door to as many versions of the ‘rule of law’ as there are political philosophies. We now have two options: Either the rule of law is an empty formalism or it means whatever you want it to mean. Allan and others now want the rule of law to imply Dworkinesque equality.67 Unger and Critical Legal Studies In his hidden structure account, Roberto Mangabeira Unger68 maintains that the rule of law was (is) an empty formalism that masks the exploitation of the many by the few. In his political philosophy, he argues that

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

221

the contemporary growth of government and administrative law, something Unger welcomes, is inevitable so that the rule of law is, even as an ideal, irrelevant.69 In Unger, and in CLS in general, we can see the total collapse of all rationality. What CLS does is to offer an exploration (hidden structure account) of why other theorists offer a different (hidden structure) account. So not only are Dicey, Fuller, Leoni, Hayek, and Oakeshott all ‘apologists’ for the status quo, but so too are Rawls and Dworkin,70 etc. The latter apparently are not ‘left’ enough. Civil discourse now comes to an end. Any theorist is free to dismiss any other theorist without further discussion of the substance of their respective views. A commitment to scientism,71 the reigning philosophical doctrine in the intellectual world, has a close relationship with a powerful and highly centralized role for government experts. If everything is in principle scientifically explainable, then everything is related to everything else. If everything and (everybody) is related to everything (and everybody) else then, by analogy, individual human beings cannot be understood apart from their social interaction. The social interaction is then intrinsic to being human. Human beings cannot be understood as autonomous individuals. The social defines the individual. Moreover, once we come to understand how everything works, then we can predict and control—in fact ought to control—the social world for its sake and benefit. Some form of democratic socialism is logically connected with scientism. On purely intellectual grounds, assuming the truth of scientism, socialism is the correct social/political/legal position. There has to be a total all-encompassing and harmonious truth otherwise there will be disagreement and factionalization. This is the utopian element of monotheism that many thinkers in the alleged age of reason of the seventeenth century thought that science could now supply, and it is entirely consistent with Rousseau’s General Will. Furthermore, it completely ignores or dismisses Madison’s explanation in the Tenth Federalist that man’s passions and interests inevitably lead us to form various factions, and the only two ways to deal with factions are either to suppress them (which is either utopian or a complete destruction of liberty) or control their effects. The scientistic thought process is one of the reasons that classical liberal views of individualism morphed into modern liberal/socialist views of individualism, that is, a slippery slope from respecting individual freedom to destroying it.72

222  N. E. NEDZEL AND N. CAPALDI

Given the foregoing, if the rule of law is to have any meaning under modern analytic legal philosophy, then it cannot mean more than some purely formalistic limitation on government (early Raz). To argue as Hayek and Oakeshott do that the ‘rule of law’ requires, a civil association that maximizes individual freedom is to argue for something that is unacceptable to the vast majority of the present intellectual community. Thus, it is no surprise that Hayek and Oakeshott have been marginalized and ignored in much of the scholarly literature. In opposition to the mainstream, Hayek and Oakeshott would insist that social practice is not a natural event subject to scientific analysis, but a symbolic event that relies upon prior tacit agreements. The meaning of a practice is not independent of how agents involved in the practice perceive or understand the practice. The agents’ understanding itself is not explicable at some other level by reference to objects independent of the agents’ understanding/attitude toward even those objects/entities (psychological, biological, etc.), ad infinitum. The anti-scientism of spontaneous order blocks any attempt to use pop-sociology to smear the motives of opponents of radical change (those smears appear in the writings of Dworkin and CLS). You can never escape from some prior agreed-upon context. Each successive form of knowledge further articulates the inherent norms. Unlike Dworkin who seeks hidden structure, Hayek finds those norms in the historical evolution of prior cases. Burke, Hegel, Hayek, and Oakeshott all showed the connection between a purely instrumental rationality, the utilitarian/ instrumentalist mind-set, and the loss of respect toward institutions and cooperative forms of social life. Spontaneous order lets us see that people do not form a society and then make laws for it (as in Rousseau and in Continental jurisprudential codes); there would be no society in the first place unless law already existed in the form of customary practice. The analogue is that there is no creation of a language unless prior linguistic practice already exists. This social epistemology (in Burke, in Hayek, and in Oakeshott) understands knowledge as an inheritance in our customs, institutions, and habits of thought that have been shaped over generations and perhaps millennia; it is not the experience of a single person and not a deduction from abstract a priori principles. Nevertheless, the social construction of knowledge73 cannot be conducted from a context-less ahistorical Archimedean standpoint, even a

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

223

democratic one. There is no de novo construction. Inevitably, the constructors will appeal to past practice: Dworkin will appeal to social democratic politics; Hayek will appeal to the ‘rule of law.’ From Hayek’s point of view, Dworkin is confusing the role of the judge with the role of the legislator. More importantly, the social construct is the work of individuals interacting over time. The ‘social’ is itself a construct over time of human conduct. There is no prior social collective. The ‘social’ is, in Oakeshottean terms, a conversation among many individual voices; these voices may disagree; we can respond to the disagreement by means of a negotiation or by the imposition of an agenda, ideology, or ‘ism.’ The negotiation will have to be conducted according to rules. Which rules? How does all of the preceding relate to the fundamental theses of this book? Precisely because there are different understandings of their prior agreed-upon context and precisely because these prior socio-historical contexts have been different, the Anglo-American legal inheritance is different from the Continental European legal inheritance. That is why there has been a specific meaning to the concept of the ‘rule of law’ in the Anglo-American legal context that differs significantly from the meaning of the concept of ‘rule thru law’ in the Continental legal world. At the core of early English understandings of the ancient constitution and the common law was the belief that there are normative limits on the law itself and that both members of the legislature and legal officials are legally bound to these norms.74 However, the growth and dominance of an intellectual movement, namely scientism, first as positivism and then as analytic philosophy, have inspired a backlash (Hayek and Oakeshott would contend an abandonment of) against the notion of the ‘rule of law’ as Dicey, Leoni, Hayek, and Oakeshott have explained it and the reduction of Fuller’s insights (by Rawls75 and the early Raz76 for example) to a kind of formalism. Precisely because so many legal scholars even in the Anglo-American law think that the rule of law is a mere formality that they and many of their European counterparts see no difference between the two legal systems. This also explains why some legal theorists such as Loughlin77 have gone so far as to advocate that the Anglo-American legal tradition should rejoin what they perceive as the fundamental or mainline legal narrative of Continental Europe.78

224  N. E. NEDZEL AND N. CAPALDI

Hayek on the Rule of Law79 (Law, Legislation, and Liberty) The storyline in Hayek, by now, should be obvious. 1. spontaneous order: law emerges out of unarticulated custom80 2. law evolves into → articulated custom81 or convention 3. evolves into  → articulated custom + legislation82 +adjudication83 4. Legislation cannot totally replace adjudication for all of the reasons we have already discussed in previous chapters.84 Legislation cannot operate in a vacuum or from an Archimedean point (e.g., behind Rawls’ veil of ignorance) because we can never escape the background of implicit norms and practices (Hayek’s critique of ‘constructivism’ and Oakeshott’s critique of ‘rationalism in politics’). All critique is immanent.85 Constructivist86 rationalism is ‘the … false conception of the human mind as an entity standing outside the cosmos of nature and society [Archimedean point], rather than being itself the product of the same process of evolution to which the institutions of society are due’;87 ‘the limitations of knowledge with which we are concerned is therefore not a limitation which science can overcome.’88 Since the human mind is not and cannot be outside the process—as Hume and Kant recognized— ‘science itself …rests on a system of values which cannot be scientifically proved.’89 These evolving values are ‘independent and guiding conditions of all rational’ thought.90 Constructive rationalism, specifically in the form of philosophical positivism, ‘tends to dethrone [the values which] …are the indispensable foundation of all our civilization’;91 ‘many of the institutions of society which are indispensable conditions for the successful pursuit of our conscious aims are in fact the result of customs, habits, or practices which have been neither invented nor are observed with any such purpose in view.’92 Among the most important of these values is the ‘rule of law.’ Philosophical positivism, as a form of constructivist rationalism, leads to ‘legal positivism and the connected belief in the necessity of an unlimited “sovereign” power ….’93 The belief in social justice [equality, e.g.] and democratic socialism are ‘… erroneously held beliefs … due to the influence of a philosophical tradition’ namely ‘constructivist rationalism.’94 ‘[T]he most destructive of the constructivistic morals is egalitarianism.’95

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

225

5. In the Anglo96/American97 legal inheritance, articulated custom contains the ‘rule of law’ ideal as identified by Dicey.98 6.  In those systems, laws contain several norms99: known, certain, equality before law, coercive activity subject to judicial scrutiny and the primacy of individual liberty.100 It is precisely for this reason that legal positivism is dangerous. ‘Legal positivism is a logical consequence of these beliefs [positivism and historicism]…. Consequently, the principle of the Rechtsstaat or of the Rule of Law came to mean to the representatives of these schools merely the demand for legality…as such it ceased to have any significance as a guarantee of individual freedom…’101 (p. 27). Hayek specifically criticizes Kelsen. The ‘fundamentally irretrievable liberty of the individual gradually recedes into the background and the liberty of the social collective occupies the front of the stage’; Kelsen sought the ‘emancipation of democratism from liberalism’; there are no possible limits to the power of the legislator and there are no ‘so-called fundamental liberties.’ Kelsen wanted to ‘sweep away all restrictions on the power of the majority.’102 In Kelsen’s own words: ‘One of the most important results of the pure theory of law is that sovereignty, in the specific sense which this idea has in a theory of law, is not a real characteristic of a real thing. Sovereignty is a judgment of value and as such it is an assumption. The individualistic philosophy of the 18th and 19th centuries proceeded from the idea that the human individual was sovereign, i.e., of the highest value. From this it was concluded that a social order can be binding on the individual only when it is recognized by the individual as binding. From this came the doctrine of the social contract, which still has its exponents; but today the inclination is rather to a universalistic philosophy of values according to which the community is superior to the individual.’103 From Hayek’s point of view, ‘jurisprudence (especially on the European Continent) has been almost entirely in the hands of public lawyers, who think of law primarily as public law.’ This interpretation is ‘chiefly responsible for the sway not only of legal positivism (which in the field of private law just does not make sense) but also of the socialist and totalitarian ideologies implicit in it.’104 The progressive deterioration of the distinction between public and private law is reflected ‘[d] uring the last hundred years chiefly in the service of so-called “social”

226  N. E. NEDZEL AND N. CAPALDI

aims.’105 The ‘greatest part of what is called public law …consists of administrative law.’106 Hayek further explains the transition from the ‘rule of law’ to legality by reference to the evolving conception of the role of legislation under the influence of positivism. Legislatures not only make laws but also issue commands to government agencies (administrative law) for carrying out the law. The confusion between these two functions encouraged the view that law as nothing but issuing commands to further organizational purposes: ‘…with the apparent victory of the democratic ideal…the power of laying down laws and the governmental power of issuing directions were laced into the hands of the same assemblies. The effect of this was necessary that the supreme governmental authority became free to give itself currently whatever laws helped it best to achieve the particular purposes of the moment. But it necessarily meant the end of the principle of government under the law.’107 Max Weber had already pointed out the importance and necessity of a legal framework for the functioning of a (capitalist) market economy. Weber’s conception of a legal framework was a (holistic) Continental code, and he was deeply puzzled by how England could have been so successful. Hayek agreed with the necessity and importance of a legal framework, but Hayek would go on to insist that the more effective legal framework had to correspond to something like evolving common law. The reason for this is that the market economy is not a conceptualizable whole. Rather, it is the product of continuous negotiation among myriad individuals. This also underscores the difference between a ‘political’ framework for the market and a ‘legal’ framework. Austrian economists always opposed political control of the market economy, and they did so for two reasons. First, political control that appealed, in theory, to the possibility of expert managerial control of the market (e.g., EP) was an intellectual chimera. Second, in practice, political control became the surreptitious introduction of hidden private agendas in the name of economic nationalism. This was debilitating if not fatal both to individual nations and to a world market. Furthermore, a world (‘political’) government was the worst possible outcome. Hayek was opposed to a European federation after 1945.

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

227

Status of Hayek’s Analysis of the ‘Rule of Law’ Hayek’s main focus is ‘liberty.’ ‘The only moral principle which has ever made the growth of an advanced civilization possible was the principle of individual freedom.’108 The ‘rule of law’ is discussed primarily because of its contribution to liberty. The discussion seems to have two foci109: the ‘rule of law’ as a meta-principle [cultural element] and the ‘rule of law’ as an institutional structure or series of structures (e.g., checks and balances, judicial review, a special court to review administrative actions). He identifies these as ‘the various principles which together constitute the Rule of Law.’110 The ‘rule of law’ ‘is not a rule of law [legal rule] but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal.’111 It is ‘not a rule of the law but a rule about the law, a meta-legal doctrine, or a political ideal … [and it] depend[s] on whether it is accepted by public opinion…on whether it is part of the sense of justice prevailing in the community.’112 Norms are not always adhered to—hence they cannot be explicated simply by empirical observation.113 ‘[P]erhaps the ideal of the “rule of law” had not yet been completely put into practice’114; like Oakeshott’s logician’s dream, ‘ideals also in the sense that we can hope only to approach them more and more closely, but can probably never fully realize them.’115 In England, the development of the ‘rule of law’ was challenged by ‘the influence of the rationalist tendencies of the philosophical radicals and the French tradition. Bentham and his Utilitarians did much to destroy the beliefs which England had in part preserved from the Middle Ages. They introduced into Britain ‘the desire to remake the whole of her law and institutions on rational principles.’116 In the twentieth century, movements such as positivism and figures such as Kelsen, Ivor Jennings, Laski, Rawls, and Dworkin have also contributed to the undermining of the ‘rule of law’. When confronted with an opposing viewpoint such as spontaneous order (norms are already embedded in previous practice), positivists either (a) do not understand it or (b) reject it because the commitment to scientism dictates that even if theory is intimately related to practice we should be able to offer a scientifically verifiable meta-theory about how theory and practice are related. In short, positivists assume we can stand outside all practice. Worse yet, in a positivistic point of view,

228  N. E. NEDZEL AND N. CAPALDI

spontaneous order does not guarantee that historically evolving norms can be systematized in such a way that all future practice can be systematically deduced from the alleged final and definitive theory. Hence, they insist that writers like Hayek and Oakeshott must have some sort of theory/ideology [e.g., neoliberalism] or they are not worth discussing. Positivists and natural law devotees also allege that Hayek must have a theory about why spontaneous order is ‘good’ (perhaps survival value), when all that Hayek asserts is that it has lasted so far and it is ‘our’ inherited framework. Where else could we stand? Hayek has done what philosophers are supposed to do: explicate our framework. Past practice reflects what worked in the past, and past practice contains inherent norms. When confronted with novel circumstances, past practice has to be articulated, re-articulated, revised, or extended. The process of revision/extension cannot be reduced to or explained by any theory [note the remark of Wittgenstein in the Tractatus: ‘Whereof we cannot speak thereof we must remain silent.’]; it must however be consistent/coherent with past practice—not a total rejection of all past practice. It is not possible or meaningful to stand outside of all past practice; we can call this process adjudication. It is best exemplified in the Anglo-American common law; this is why Dworkin is wrong when theorizing about adjudication; it is why no constitution or code can capture the inherent norms of an evolving tradition; this is what Oakeshott calls the ‘pursuit of intimations’; this is the explicit denial that it is possible to conceptualize the pre-conceptual; it is the rejection of the scientism of positivism and analytic philosophy. This is also why no branch of government (courts, legislature, or executive) is in a privileged position or has the last word—hence the value of checks and balances. This is why Constitutional review is not the essence of the ‘rule of law’; this is why neither Kelsen nor Schmitt truly understood the ‘rule of law.’

Critics Miss the Point (Again) Failure to distinguish between the ‘rule of law’ and ‘rule thru law’ has led some twentieth-century bureaucrats (e.g., WTO), who think they are following Hayek but have fundamentally misunderstood him, to try and impose from the top-down a capitalist or market enterprise association on the world economy (sometimes known as neoliberalism or globalism).117 This would amount to ‘rule thru law’ and not Hayek’s or Oakeshott’s conception of ‘rule of law.’ The latter requires a civil

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

229

association and supportive culture of individualism such as one finds in the Anglo-American world, a culture that Continental Europeans sometimes fail to grasp. In an otherwise excellent summary of Hayek’s legal philosophy, J.D. Goldsmith118 made the following criticisms of Hayek. First, Hayek seems to presume that the Western moral system of individualism is superior to others,119 and this presumption conflicts with the claim that there are no absolutes. Our response on Hayek’s behalf is (a) since all critique is immanent, we need to begin with an examination of ‘our’ own (i.e., Anglo-American not ‘Western’) system120; the only meaning ‘superior’ can have is that it can resolve problems in our system; that is why he is focused on misguided internal critiques; (b) our system can be understood without appeals to contestable absolutes; (c) our system can manage conflicts without such appeals; (d) other moral systems seem to rely on indefensible absolutist philosophical and theological assumptions; and (e) none of the tensions in the individualism that emerged out of spontaneous order are resolvable by appeal to the resources in other systems. The second criticism of Hayek is that Western societies, by Hayek’s own admission, have drifted toward the kinds of liberalism and socialism to which he objects, and if so then is not socialism a product of spontaneous order? Our response on behalf of Hayek is that ‘socialism’ is not the product of spontaneous order but the imposition of an ‘ism’ or theory upon spontaneous order. Let us go one step further. We can imagine someone maintaining that Dworkin’s view is an attempt to explain the drift to ‘socialism’ rather than his own theory or ‘ism.’ We do not think this is what Dworkin said; rather, Dworkin offered a hidden structure account that included his own socialistic political leaning as the ‘grundnorm.’ If the reader disagrees, then perhaps this should be regarded as an invitation to try to explain Dworkin’s reasoning without appeal to hidden structures or dubious metaphysics and epistemology.



Notes 1. Hayek (1967, p. 251) ‘One is sometimes tempted to ask whether the separation of legal and economic studies was not perhaps, after all, a mistake.’ In the interests of brevity, we present Hayek’s work, as we shall Oakeshott, as a finished product. For an excellent and insightful discussion of the evolution of Hayek’s thought, see Fleetwood

230  N. E. NEDZEL AND N. CAPALDI









(2014). Especially important here is the development of Hayek’s social epistemology. 2. Allison (2007, pp. 203–204), whose critique of Dicey we rebutted in the Dicey chapter, attributes the origins of Hayek’s view on the ‘rule of law’ to Hayek’s Continental education and understanding of the Rechtsstaat. Nothing could be more misleading. According to Ben Jackson (2012), Hayek was impressed by the legal dimension in Walter Lippmann’s An Inquiry into the Principles of a Good Society (1937). Hayek first discussed the ‘rule of law’ in The Road to Serfdom (1944) precisely to warn readers about the growth of managerial government; moreover, the later elucidations (1955 and 1961) are all based on an understanding of Dicey, Britain, and the United States. Hayek (1976) repeats this origin and the claim that positivism and the collectivism in Kelsen undid the early good of the Rechtsstaat, an early good that was a transplant from Britain. He even went so far as to lament the tendency in Continental law to embrace ‘rule thru law.’ 3. The ‘rule of law’ is mentioned in Hayek (1944), The Road to Serfdom. 4. ‘Historicism’ is the imposition upon history of the belief that there is an objective conceptualizable structure underlying historical events (teleology, cycle, predictable future developments). 5.  One interesting issue is whether Hayek understood Rawls. Hayek seemed to think that Rawls’ focus on general principles conforms to Hayek’s own view that principles must be followed rather than the pursuit of particular concrete outcomes. In this respect, Hayek thinks that Rawls is an ally of his. He even went so far as to chide those like Daniel Bell who think Rawls is a socialist. A case can be made that what Hayek did not recognize is that Rawls’ distributionist principles are fundamentally at odds with Hayek’s proceduralist principles and that Rawls’ distributionist principles authorize the political structure to do its best to achieve the collective good of the fullest available satisfaction of those distributionist principles. Nevertheless, Hayek was disturbed by Rawls’ use of the expression ‘social justice’ and wondered if this were more than semantic. On the other hand, a case can be made that Rawls was himself ­confused and confusing. Reading Rawls as a socialist is what made Rawls’ reputation and the fame of the Theory of Justice (1972). On the other hand, Dworkin among others stressed that Rawls wanted to maintain the p ­riority of liberty over equality but failed to do so. In Political Liberalism (1993), for example, Rawls introduced significant changes to the principles of justice so that the difference principle, which relates to distribution, is both subordinate and the least important. 6. Hayek (1955, p. 5).

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 













231

7. Hayek (1955, Lecture II; 1961, p. 166). 8. Ibid., p. 167. 9. Ibid., p. 193. 10. Hayek (1976, p. 134). 11. Hayek (1955, pp. 15–16). 12. Ibid., pp. 17–18. 13. Hayek (1961, p. 195). 14. There is an interesting historical and philosophical story here with which Hayek was familiar and to which he alludes but does not discuss in detail. 15. Hayek (1961, p. 112). 16. Hayek (1955, pp. 18–19). 17. Ibid., p. 24. 18. See, for example, Hallowell (1946, especially Chapter Two). A very positive acknowledgment of Hegel’s contribution to and understanding of the ‘rule of law’ can be found in Oakeshott. Hegel was read in different ways, left wing and right wing and distinctions within. The state could be conceived as an enterprise to promote individual dignity (present German Constitution still does this) or as a civil association to provide conditions for the flourishing of individual autonomy. Many subsequent theorists in Germany took Hegel (and Kant) in the enterprise/collectivist sense. See Capaldi and Lloyd (2016). 19. As opposed to the explicit discussion of Hayek, Krieger (1972) makes the case that implicit in the liberal German conception of freedom there was always some form of collectivism or collective responsibility to help individuals achieve their true individuality (the so-called modern liberalism that leads to democratic socialism). In a curious way, Hayek’s later comments seem to support this. He notes in (1979, p. 143) the ‘surviving tradition of a fundamentally unlimited power of government, based on a mystique of Hoheit and Herrschaft….’ ‘Herrschaft’ is the feudal notion of institutionalized authority inducing obedience. Hayek’s friend Voegelin, another critic of Kelsen, offered an historical account of the differences between the Anglo-American system and the Continental system, an account that Oakeshott would later repeat. Voegelin (1987, pp. 188–189): ‘The corrosion of Western civilization through gnosticism is a slow process extending over a thousand years … Western political societies … have a different relation to this process according to the time at which their national revolutions occurred … The English Revolution, in the seventeenth century … preserved the institutional culture of aristocratic parliamentarianism as well as the mores of a Christian commonwealth … The American Revolution … also had the good fortune of coming to its close within the institutional

232  N. E. NEDZEL AND N. CAPALDI















and Christian climate of the ancient regime. In the French Revolution … the radical wave of gnosticism was so strong that it permanently split the nation … The German Revolution … in an environment without strong institutional traditions, brought … into play economic materialism, racist bigotry, corrupt psychology, scientism, and technological ruthlessness … modernity without restraint.’ [T]here is a glimmer of hope, for the American and English democracies …’ (p. 189). 20. Hayek (1961, p. 235). See also (1955, p. 25). 21. Hayek (1973, p. 116). 22. Hayek (1955, p. 19). This is repeated in (1961, p. 198). 23. See Zywicki (2003). 24. Hayek (1976, p. 116). 25. Ibid. 26. Elsewhere, we would argue that the Anglo-American notion of the ‘rule of law’ with its emphasis on individual liberty reflects a larger cultural context that promotes an entrepreneurial attitude. There is a body evidence that common law countries as a whole are more successful economically than civil law countries. See Pejovich (2010). 27. M. Weber (1978, p. 814); quoted in Nedzel (2018, p. 447). 28. Hayek (1973, pp. 67–68). 29. Ibid., p. 59. 30. Ibid., p. 55. 31. Fuller (1989). In Hayek’s defense and analysis of the ‘rule of law,’ markets are included not because they produce wealth but because they promote moral agency. 32. Oakeshott (1975, p. 66). 33. Hayek (1988, p. 18). 34. Hayek (1944, pp. 112–113). 35. This argument will be repeated and elaborated in Hayek (1955, Lecture II; 1961, chaps. 14–15). 36. Capaldi (1998). 37. In Dworkin (1985a, chap. 2), constructivist justification becomes ‘law as integrity.’ For Dworkin’s explicit appeal to deep structure see (2004, pp. 12–13). 38. Dworkin’s devastating critique of positivism (1985b) is also aimed at Richard Posner. 39. In his criticism of Hart, Finnis (1980, Chapter one), urged that Hart should have stated and defended the political morality of his theory. 40. ‘We’re not concerned with the historical question here. We’re not concerned about how principles are in fact chosen. We’re concerned about which principles are just.’ Ronald Dworkin, quoted in Magee (1982, p. 216).

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

















233

41. Dworkin (1985b, p. 11). 42. Dworkin (1978, p. 40). 43. Ibid., pp. 118–121. Dworkin applies this to the ‘Fugitive Slave Acts’ which required that slaves who had escaped to free states needed to be returned to their masters. 44.  This movement parallels Rawls’ evolution from the pure theory in Theory of Justice to The Law of Peoples where historical context suddenly becomes important. This move reflects our contention that all exploration presupposes explication or, in Oakeshott’s words, that rationalism inevitably appeals to some past practice despite its pretension to do otherwise. 45. Dworkin (1985b, pp. 164–165). 46. Dworkin (1985a, pp. 50, 52). 47. According to Dworkin (1985a, p. 167), judges must ‘conceive the body of law they administer as a whole rather than a set of discrete decisions.’ 48. Dworkin (2004, p. 15). 49. Ibid., p. 16. 50. Ibid., p. 17. 51. Ibid., p. 18. 52. Dworkin (1985a, p. 219). 53. Ibid., p. 188. 54. Ibid., p. 206. 55. Habermas (1975, p. 89): ‘Communicative ethics’ to ‘guarantee the ­generality of admissible norms and the autonomy of active subjects ….’ we should adopt norms ‘on which everyone affected agreed (or would agree) without constraint if they enter into (or were to enter into) a process of discursive will-formation.’ The similarity of this warmed-over Rousseauean communitarianism to Rawls should be obvious. In practice, this easily degenerates into the tyranny of the majority. Neither Rawls nor Habermas seems to have understood Kant’s insight that the categorical imperative entails respect for autonomous individual sovereignty. 56. Democratic socialists identify the General Will with the majority; it is an empirical—one might say positivist—reading of the General Will. 57. Dworkin (1985a, p. 225). 58. Ibid., p. 211. 59. Ibid., p. 190. 60. Dworkin (2004, p. 24). 61. Ibid., p. 30. 62. Ibid. Dworkin was clearly aware of Dicey and Hayek’s early work but (a) neither Oakeshott, (b) nor Hayek’s later work as far as we can tell, and (c) focuses on Hart rather than any of these other opponents in his major works.

234  N. E. NEDZEL AND N. CAPALDI











63. Hayek (1979, p. 172): ‘It is by the slogan that “it is not your fault” that the demagoguery of unlimited democracy, assisted by a scientistic psychology, has come to the support of those who claim a share in the wealth of our society without submitting to the discipline to which it is due.’ 64. See (2018, pp. 108–116) for Hayek’s critique of hidden structure theories. 65. Sesardic (2016). 66. Tamanaha (2007, p. 469): ‘law should be declared at our will and shaped to achieve our collective social purposes …’ (p. 469); this view came to the fore in the 1960s and 1970s (p. 470) when ‘Students were taught that everything is up for argument, and that legal rules are … resources to be strategically marshalled and presented with rhetorical agility’ (p. 472). 67. Allan (2001, p. 122) and Sedley (1996, p. 622). 68. Unger (1976, pp. 176–181, 192–223). 69. Dicey, Hayek, Leoni, Fuller, and Oakeshott share this concern. 70.  Dworkin himself engages in this kind of argumentation in (2004, pp. 31–35). 71. We are here presuming that a commitment to scientism is a commitment to the view that everything can eventually be explained deductively by reference to a single principle. 72. See Neill (2009). 73. Berger and Luckmann (1967). 74. Tamanaha (2007); See also Lyons (1981). 75. Rawls (1999, section 38, pp. 206–213). 76. Raz (1979). 77. Loughlin (2012). 78. This also explains why there are two different intellectual camps arguing over Brexit within the UK. Almost anticipating these developments were Hayek’s remarks: the ‘Progressive deterioration of the distinction between public and private law during the last hundred years chiefly in the service of so-called “social” aims.’ (1973, p. 132); the ‘greatest part of what is called public law …consists of administrative law’ (1973, p. 137); ‘jurisprudence (especially on the European Continent) has been almost entirely in the hands of public lawyers, who think of law primarily as public law…is chiefly responsible for the sway not only of legal positivism (which in the field of private law just does not make sense) but also of the socialist and totalitarian ideologies implicit in it’ (1973, p. 134). 79. Hayek’s discussions of the ‘rule of law’ predates Hart (1961), Rawls (1971), Raz (1979), and Dworkin. Hayek mentions Fuller (1976),

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 







235

Oakeshott (1976, 1979), Hart (1973, 1976, 1979), Dworkin (1976, 1979), and Rawls (1973, 1976, 1979). 80. The three main theses of (Hayek, 1973, p. 2): ‘The first of these is that a self-generating or spontaneous order and an organization are distinct, and that their distinctiveness is related to two different kinds of rules or laws which prevail in them.’ ‘The second is that today what is generally regarded as “social” or distributive justice has meaning only within the second of these kinds of order … and wholly incompatible with … spontaneous order …’ ‘Third is that the predominant model of liberal democratic institutions … necessarily leads to a gradual transformation [via democratic socialism] of the spontaneous order of a free society into a totalitarian system conducted in the service of some coalition of organized interests.’ 81. Hayek (1961, p. 181): ‘… a group of men can form a society capable of making laws because they already share common beliefs … to which articulated rules must conform in order to be accepted as legitimate.’ 82. Hayek (1961, p. 458) refers to Max Rheinstein ‘the notion that valid norms of conduct might be established by way of legislation was peculiar to later stages of Greek and Roman history; in western Europe, it was dormant until the rediscovery of Roman law and the rise of absolute monarchy. The proposition that all law is the command of the sovereign is a postulate engendered by the democratic ideology of the French Revolution that all law had to emanate from the duly elected representatives of the people. It is not, however, a true description of reality, least of all in the countries of the Anglo-Saxon Common law.’ On the same, Hayek cites Burke in support of this thesis. 83. ‘[W]e are never free to redesign completely the legal system as a whole … Law making is necessarily a continuous process’ Hayek (1973, p. 65). Precedents guide the common law judge who ‘must be able to derive rules of universal significance which can be applied to new cases’ (1973, p. 86). ‘[T]he task of the judge will be to tell them [parties to the dispute] what ought to have guided their expectations, not because anyone had told them before that this was the rule, but because this was the established custom which they ought to have known. The question for the judge here can never be whether the action in fact taken was expedient from some higher point of view, or served a particular result desired by authority, but only whether the conduct under dispute conformed to recognized rules … [this] produces in the common law judge a capacity for discovering general principles rarely acquired by a judge who operates with a supposedly complete catalogue of applicable rules before him’ (1973, p. 87).

236  N. E. NEDZEL AND N. CAPALDI









84. Adjudication aims at coherence; the ‘legal profession as a whole may thus occasionally in effect even nullify the intention of the legislation … leads them to give preference to what is still the predominant part of the law and to fit an alien element into it by so transforming it as to make it harmonize with the whole’ (Hayek 1973, p. 66) [e.g., Coke], Oakeshott on fertile sources of adaptation. 85. All critique is immanent, Hayek (1976, pp. 24, 27). ‘[T]he basic source of social order … is not a deliberate decision to adopt certain common rules, but the existence among the people of certain opinions of what is right and wrong’ (Hayek 1979, p. 33). ‘The mind is embedded in a traditional impersonal structure of learnt rules, and its capacity to order experience is an acquired replica of cultural patterns which every individual mind finds given … mind can exist only as part of another independently existing distinct structure or order …’ (Hayek 1979, p. 157). ‘It is only by recognizing the conflict between a given rule and the rest of our moral beliefs that we can justify our rejection of an established rule … we cannot redesign but only further evolve what we do not fully comprehend’ (Hayek 1979, p. 167). 86. Changed to ‘constructivistic’ (1979, p. xii). 87. Hayek (1973, p. 3). 88. Ibid., p. 15. 89. Ibid., p. 7. 90. Ibid., p. 6. 91. Ibid., pp. 6–7. 92. Ibid., p. 11. 93. Ibid., p. 6. 94. Ibid., p. 3. 95. Hayek (1979, p. 170). 96. ‘the ideal of individual liberty seems to have flourished chiefly among people [English] where, at least for long periods, judge-made law predominated’ (Hayek 1973, p. 94); Hayek’s history of England (1973, pp. 167–175). Hayek’s history of the ‘rule of law’ is important for three reasons: (1) It coheres with that part of Dicey’s account of how the modern conception of the ‘rule of law’ evolved in the Anglo-American world; (2) it is an attempt to identify the presence of a rule of law movement in the Continental tradition (a potential challenge to one of the main theses of this book); and (3) it is erroneous in several important respects. Let us elaborate the third point first. Hayek was well aware of the scholarly controversy over this point, even citing it in his endnotes, but in his history, he contends that there was in the ancient world important instances of individual freedom (notably Pericles’ oration) in Athens and

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

237

an abiding respect for personal property, most notably in Rome for a period of time. He contends as well that there is an ancient tradition of opposing the arbitrary exercise of power, citing Aristotle, Cicero, etc. moving down into the Medieval period, notably Aquinas. The combination of individual freedom and limiting the exercise of power sounds like civil association. But, unfortunately, it does not amount to civil association. To begin with the conception of individual freedom in the modern sense does not exist prior to the late Middle Ages. There is an important difference between being free to do what you are permitted to do and being free to do what is not forbidden. The former is what the ancients had; the latter is what the moderns espouse. Personal freedom was always limited among the ancients to what did not conflict with the collective end. Moreover, Hayek offers no account of exactly why these things did not last. Finally, the appeal to modern authors who ‘find’ these things in the ancients says more about the modern authors than it does about the ancients. Hayek believed that Hobbes was responsible for misrepresenting the classical tradition. On the contrary, Hobbes was among the first— if not the first—modern to identify and proclaim radical individuality. Moreover, Hobbes was the beneficiary of the nominalist position that espoused the ontological priority of individual things, a position most clearly represented by another English philosopher, William of Ockham in the late thirteenth century. Finally, the very existence of the intellectual conflict among nominalism, conceptualism, and realism only came to the fore in the late medieval period. It is very difficult to avoid the conclusion that radical individualism was much more at home among the descendants of the Anglo-Saxons than the Continent. Further, opposition to the arbitrary exercise of power is an endorsement of law (or a legal system) or law and order but not an endorsement of ‘the rule of law.’ The ‘higher’ law to which the ancients and medieval authors appealed is grounded in a metaphysics that neither Hayek nor most moderns would accept. It is not grounded in spontaneous order. Returning to the second point, Hayek is correct in recognizing that the medieval ‘Germanic tribe’ tradition of decentralization was common to both England and the Continent. And, he is correct that it survived in England but not on the Continent. His explanation of its failure to take root on the Continent is the rise of absolutism and the subsequent growth of the ‘powerful centralized administrative machinery.’ What is left unanswered is why absolutism prevailed on the Continent. We contend that absolutism prevailed on the Continent because the Continental ‘Germanic’ tribes adopted the Greco-Roman worldview.

238  N. E. NEDZEL AND N. CAPALDI That worldview, expressed intellectually by deductive reasoning from first principles as opposed to inductive reasoning from custom (experience), inevitably required a final authoritative source. In the real world, the final authoritative source needs to be an absolute ruler, Justinian’s prince who is outside the law. Justinian’s code prevailed on the Continent, not in England. The great medieval controversies revolved around who or what would constitute the ultimate source of authority/ power: king or Pope. Both the supporters of the kings and supporters of the Pope appealed to rediscovered Aristotelian texts in which it was maintained that society was an organic whole. For Aristotle, the state is the highest good and encompasses all of the others. In England, the Greco-Roman worldview never overcame the native ‘Germanic’ commitment to decentralization and some form of individualism. The Normans were victorious but ultimately absorbed by the Saxons. Henry II insisted that lawyers be trained at the Inns of Court rather than in universities dominated by Greco-Roman and Aristotelian models of thinking. In summation, individual freedom is an early modern idea and only in England was the ‘Germanic’ tradition upheld. This is why the Continent never developed the concept of the ‘rule of law.’ Where he is most certainly and importantly correct is identifying a Continental liberal tradition that stretches back at least to Kant and Humboldt in Germany. He goes on to contend that an early element of the Rechtsstaat embodied this liberal bent and that it led to the proposed formation of another level of judicature, a level at which administrative law could be challenged. Hayek was correctly surprised that Dicey did not give this feature the prominence Hayek thought it deserved, especially in view of Dicey’s shared concern that administrative law is a serious threat to the rule of law. Hayek then proceeds to concede that this level of judicature did not last in the Rechtsstaat. Again, we ask why. We believe that Hayek is correct in this part of his explanation. First, the liberalizing tendency of the Rechtsstaat was also traditionally allied to the natural law tradition and therefore was an easy target for positivism. This is precisely right, but it is right because the Continent was relatively more sympathetic to the natural law tradition than in England, and this sympathy reflects the classical inheritance view of an organic society. It was against this apparent foundation of the principle of the ‘rule of law’ that the criticism from the historical school and from the positivists was directed. Second, historicism and positivism destroyed the potential for the growth of the rule of law in the Rechtsstaat tradition. But this raises the

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 











239

further question of why these two intellectual trends had such an effect in Germany and France but not in England? Historicism and positivism share something in common, namely the intellectual perspective, now known as scientism, namely that it is possible to step outside of all frames of reference and explain things from a purely objective or Archimedean point of view. This scientistic perspective is but the modern version of Aristotelian realism, a reflection of the classical tradition. The classical tradition is precisely what the Continent absorbed and what England rejected. In England, the notion that prevailed was that custom is a source of fundamental truth, that custom may evolve but only because it is a fertile source of adaptation, and that there can never be an Archimedean point—a final and definitive articulation of inherent order. Once more, we are led to conclude that the intellectual inheritance of Continental Europe was less fertile ground for the development of the ‘rule of law’ as opposed to ‘rule through law.’ 97. For the US contribution see Hayek (1961, chap. 12, pp. 183–184): Anglo-American judicial review, checks and balances. ‘Much is sometimes made of the “French tradition” than to the “British”… [this belief is] still essentially mistaken.’ 98.  Hayek cites Dicey in the Road to Serfdom (1944) and in the Cairo Lecture (1955), in The Constitution of Liberty (1961), and Law, Legislation, and Liberty (1973, 1976, 1979). 99. Hayek’s (1973, p. 135) direct criticism of Hart: a rule of recognition ‘would itself not be a rule of just conduct.’ 100. Hayek (1955, ‘private sphere’, p. 35). 101. Hayek (1955, p. 27). 102. Hayek (1961, p. 238), quoting p. 10 of Kelsen, Vom Wesen und Wert der Demokratie (Tubingen 1920) and pp. 14 and 154 of Allgemeine in Kelsen. 103. Kelsen (1941). The logic of this position in Kelsen leads to the belief in the overarching importance of International law and presumably world government. 104. LLL, I, p. 134. This should be taken as an answer to Allison’s and Loughlin’s argument in favor of eventually collapsing the distinction. 105. Hayek (1973, p. 132). 106. Hayek (1973, p. 137). 107. Hayek (1979, p. 101). 108. Hayek (1979, p. 151). 109. As we saw in the previous chapter, this same duality is to be found in Fuller. 110. Hayek (1955, p. 29). 111. Hayek (1961, p. 206).

240  N. E. NEDZEL AND N. CAPALDI 112. Cairo, p. 33. 113. We cannot ‘replace adequately the conception of values which guide individual action with a statement of the observed regularities in the behavior of individuals’ (Hayek 1973, p. 111). ‘Social science … has indeed little to contribute to an understanding of the function of law’ (Hayek 1973, p. 115). 114. Hayek (1961, p. 171). 115. Hayek (1955, p. 35). 116. Hayek (1961, p. 171). Hayek (1961, p. 493) cites and quotes nineteenth-century British idealist philosopher D. G. Ritchie (1894): ‘The result of such equality of opportunity will clearly be the very reverse of equality of social position … the abolition of legal restrictions on free competition -has been to accentuate the difference between wealth and poverty.’ 117.  Although he provides an intriguing history of neoliberal globalism, Slobodian (2018) fails to distinguish between the ‘rule of law’ and ‘rule thru law,’ thereby being led to misattributing to Hayek the status of godfather of globalist neoliberalism. Slobodian’s own agenda is a global demos (democratic socialism), and he clearly understands that Hayek is opposed to that agenda. However, Hayek’s opposition is a defense of individual freedom (Slobodian denies this about Hayek—p. 205) and not the advocacy of a global anything. 118. Goldsmith (1986). 119. Professor Capaldi, speaking only for himself, in other works has maintained that the modern world of globalization is marked by a contest in which all now subscribe to the technological project but differ as to whether the combination of market economies, limited government (including nation-states), the ‘rule of law,’ and a culture of individual autonomy is the best way to predominate within it. Speaking to the outside world, ‘We’ understand the contest not as a war but as a competition in which the generally agreed-upon goals of the technological project are best achieved through the promotion of individual liberty (not coercion or theft), first as an instrument and then as an end in itself. Speaking inside our culture, we address the critics of individualism as either incoherent or as reflecting the quasi-pathological status of being what Oakeshott would call anti-individuals. ‘We’ have no issues with those who simply want to go their own way without imposing on us (e.g., Amish). 120. The subtitle of Law, Legislation, and Liberty is ‘A new statement of the liberal principles of justice and political economy.’ This is an exercise in retrieval not a theoretical exercise.

7  REDISCOVERY OF THE ‘RULE OF LAW’ IN HAYEK 

241

References Allan, T.R.S. (2001) Constitutional Justice: A Liberal Theory of the Rule of Law. Oxford: Oxford University Press. Allison, J.W.F. (2007) The English Historical Constitution: Continuity, Change and European Effects. Cambridge: Cambridge University Press. Berger, P.L. and Luckmann, T. (1967) The Social Construction of Reality. Norwell, MA: Anchor. Capaldi, N. (1998) The Enlightenment Project in the Analytic Conversation. Dordrecht: Kluwer. Capaldi, N. and Lloyd, G. (2016) Liberty and Equality in Political Economy: From Locke vs. Rousseau to the Present. Boston: Elgar. Dworkin, R. (1978) Taking Rights Seriously. Cambridge, MA: Harvard University Press. Dworkin, R. (1985a) Law’s Empire. Cambridge, MA: Harvard University Press. Dworkin, R. (1985b) A Matter of Principle. Cambridge, MA: Harvard University Press. Dworkin, R. (2004) “Hart’s Postscript and the Character of Political Philosophy.” Oxford Journal of Legal Studies, Vol. 24, No. 1, pp. 1–37. Finnis, J. (1980) Natural Law and Natural Rights. Oxford: Clarendon Press. Fleetwood, S. (2014) Hayek’s Political Economy. New York: Routledge. Fuller, T. (1989) “Friedrich Hayek’s Moral Science.” Ratio Juris, Vol. 2, No. 1, pp. 17–26. Goldsmith, J.D. (1986) “Hayek’s Political and Legal Philosophy: An Introduction.” Sydney Law Review, Vol. 11 (March), pp. 44–63. Habermas, J. (1975) Legitimation Crisis. Boston: Beacon Press. Hallowell, J.H. (1946) The Decline of Liberalism as an Ideology. London: Kegan, Paul. Hayek, F. (1955) The Political Ideal of the Rule of Law. Cairo: National Bank of Egypt. Hayek, F. (1961) The Constitution of Liberty. Chicago: University of Chicago Press. Hayek, F. (1967) Studies in Philosophy, Politics and Economics. London: Routledge. Hayek, F. (1973) Law, Legislation, and Liberty, Vol. 1. Chicago: University of Chicago Press. Hayek, F. (1976) Law, Legislation, and Liberty, Vol. 2. Chicago: University of Chicago Press. Hayek, F. (1979) Law, Legislation, and Liberty, Vol. 3. Chicago: University of Chicago Press. Hayek, F. (1988) The Fatal Conceit, ed. W.W. Bartley III. Chicago: University of Chicago Press. Hayek, F. ([1944] 2007) The Road to Serfdom. Chicago: University of Chicago Press.

242  N. E. NEDZEL AND N. CAPALDI Hayek, F. (2018) Studies on the Abuse and Decline of Reason, ed. Bruce Caldell, Collected Works. Chicago: University of Chicago Press. Jackson, B. (2012) “Freedom, the Common Good, and the Rule of Law: Lippmann and Hayek on Economic Planning.” Journal of the History of Ideas, Vol. 73, pp. 47–68. Kelsen, H. (1941) “The Pure Theory of Law and Analytical Jurisprudence.” Harvard Law Review, Vol. 55, No. 1, pp. 68–69. Krieger, L. (1972) The German Idea of Freedom. Chicago: University of Chicago Press. Loughlin, M. (2012) Foundations of Public Law. Oxford: University Press. Lyons, D. (1981) Legal Formalism and Instrumentalism—A Pathological Study. Cornell Law Review, Vol. 66, pp. 949–972. Magee, B. (1982) Men of Ideas. Oxford: Oxford University Press. Nedzel, N. (2018) “The International Rule of Law and Economic Development.” Washington University Global Studies Law Review, Vol. 17, pp. 447, 478–479. Neill, E. (2009) “Political Ideologies: Liberalism, Conservatism, and Socialism.” In S. Berger (ed.), A Companion to Nineteenth-Century Europe. Oxford: Wiley-Blackwell. Oakeshott, M. (1975) On Human Conduct. Oxford: Oxford University Press. Pejovich, S. (2010) Law, Informal Rules, and Economic Performance. Northampton, MA: Elgar. Rawls, J. ([1972] 1999) A Theory of Justice. Revised Edition. Cambridge, MA: Harvard University Press. Raz, J. (1979) “The Rule of Law and Its Virtue.” In R.L. Cunningham (ed.), Liberty and the Rule of Law. College Station: Texas A&M University Press. Sedley, S. (1996) Public Law 622 at 630–631. Sesardic, N. (2016) When Reason goes on Holiday: Philosophers in Politics. New York: Encounter Books. Slobodian, Q. (2018) Globalists: The End of Empire and the Birth of Neoliberalism. Cambridge, MA: Harvard University Press. Tamanaha, B.Z. (2007) “How an Instrumental View of Law Corrodes the Rule of Law.” DePaul Law Review, Vol. 56 (Winter), pp. 469–505. Unger, R.M. (1976) Law in Modern Society. New York: Free Press. Voegelin, E. ([1952] 1987) The New Science of Politics. Chicago: University of Chicago Press. Weber, M. (1978) Economy and Society. Los Angeles: University of California Press. Quoted in Zywicki, Todd J. (2003) The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis. Northwestern University Law Review. Available at SSRN: https://ssrn.com/abstract=326740 or http://dx.doi.org/10.2139/ ssrn.326740.

CHAPTER 8

Oakeshott

Introduction Michael Oakeshott (1901–1990) was a brilliant and complex thinker.1 Before we delve into the intricacies, we want to express two simple ways of understanding his views relative to our larger thesis. First, his work is the culmination and a more sophisticated version of what we saw in Dicey, Leoni, Fuller, and Hayek.2 Second, let us take the simplest expression of the meaning of the rule of law, namely ‘the rule of law and not of men.’ What would it mean to be guided by rules that do not reflect the imposition upon us of the interests, claims, theories, etc. of others (the one, the few, or the many)? Such rules cannot tell us what to do as this would reflect the aims of others. The rules would somehow allow us to do what we, as individuals, want to do, but still somehow be circumscribed. The answer is that the rules could only tell us how to do what we as individuals want to do. Such a specific ‘how’ could only function within the larger context of a society of like-minded individuals who prize individual freedom, namely what Oakeshott called civil association.

Human Predicament3 Summary: As an intellectual, Oakeshott was obsessed with understanding what it means to explain something, the different kinds of explanation, and how these different kinds of explanation relate to © The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4_8

243

244  N. E. NEDZEL AND N. CAPALDI

each other. This focus is what marks him as a philosopher. Once we understand Oakeshott’s metaphysics (anti-realist) and his epistemology (anti-foundationalist) so to speak, we can understand his conception of philosophy and most importantly the limits of philosophy. With regard to our own focus, the ‘rule of law,’ Oakeshott’s philosophy ‘intimates’ the politics of skepticism as opposed to the politics of faith, which in turn intimates civil association, which intimates the ‘rule of law.’ We cannot even begin to understand the world if we do not first grasp that how we understand ourselves is fundamental4 and how we understand the world is derivative. The fundamental way in which we understand ourselves is historical. Moreover, history is itself a human construct that is not reducible to any science, physical, or social. How does Oakeshott understand himself? He understands himself as a human being, specifically a modern Englishman, heir to a civil association in a tense relationship with advocates of specific enterprise associations. He is engaged in the explication of ‘our’ practice. Such an explication is about how ‘we’ engage in our practices and not an account of what the essence is of our practice. To tell us what future practice should be or what to do is not part of that task. What then is the value of such an explication? Its value lies in the delegitimation of the manner (the ‘how’) in which policy is sometimes advocated (not a critique per se of specific policies). The specific wrong ‘hows’ include those that are realist, timeless, utopian, or collectivist. This explication of the ‘how’ amounts to a defense of ‘our’ practice; it cannot be an advocacy. Oakeshott is heir to the Hume-Kant Copernican Revolution in Philosophy. He is also heir to Hegel’s historicization of that revolution, but he is original in insisting that there is no closure. Oakeshott is, in the terminology of philosophy, an anti-foundationalist who also insists that there cannot be a final and definitive formulation of what we understand. We understand ourselves primarily and in the first instance as beings who act and subsequently beings who think. We think about our actions, we think about the relation of thought to action, and we think about thinking. There is no such thing as human nature (or telos that aims at fulfillment—hence no fulfillment), only the human predicament. The predicament is characterized by freedom: It is the ordeal of consciousness within which we are challenged continually to create and recreate ourselves and our understanding of the world based on our continued

8 OAKESHOTT 

245

experience of it. Further, what distinguishes us from animals is that we are free to choose how we interpret experience. Thus, we are free to interpret and reinterpret that experience, just as common law judges interpret and reinterpret precedent. They rarely create law; they are almost always reinterpreting and reshaping it in light of new factual situations. Our freedom is employed in our imagination and intelligence; these faculties are used in defining ourselves as individuals and in giving meaning to our experience of the world we inhabit; this engagement is called learning and is the source of our humanity. Learning is a self-enacted history,5 an adventure in self-definition. Individuals freely choose meaningful ways of understanding themselves and the world around them. Imagination is the ordering of our experience that makes us unique individuals. Our awareness of our ‘selves’ as individuals is something that emerges over time, both within the life of a single person and within the social contexts where such awareness may be promoted. We do not exercise our imagination in a vacuum but within an inherited social context. The social context is an inheritance [not a ‘tradition,’ a term that implies an authoritative framework]; only through interaction with our inheritance do we become who we are. The inheritance is a set of cultural achievements and practices (Wittgenstein, Hayek, etc.), not a doctrine to be learned. The inheritance is recreated through its appropriation. It is not homogeneous, there is no final or definitive formulation, and there are many voices within it. An inheritance does not entail its future development [Wittgenstein on rules]. We are free to add to it and develop it, sometimes in unpredictable ways (Hayekian market), to ignore it, to fritter it away, or to reject it (which only amounts to defining ourselves negatively against it). Inheritances are fertile sources of adaptation (Hayek). The human condition is characterized by Oakeshott famously as a ‘conversation’ within the inheritance. The inheritance is a collection of meanings or voices. You join the conversation by speaking at first in the voices of others and, eventually, in your own voice. You know your voice by hearing it echoed in the conversation. Some voices have developed into coherent lines of thought possessing a distinct language and literature (e.g., philosophy, history, science, poetry, etc.). Although its adherents like to claim otherwise, no mode of thought can express the whole of experience. The purpose of conversation is to provoke and

246  N. E. NEDZEL AND N. CAPALDI

explore, not prove or disprove. The human condition then is an endless unrehearsed intellectual adventure in which, in imagination, we enter into a variety of modes of understanding the world and ourselves and are not disconcerted by the differences or dismayed by the inconclusiveness of it all. What then is the relationship of thought to action? In the beginning is the deed (the pre-conceptual). Reflection on action is the expression of a kind of conceptual abridgement (analogous to a recipe). We cannot stand outside of all prior practice (Wittgenstein and Hayek) and conceptualize the pre-conceptual (i.e., offer a theory6 about the relationship of thought to action). We do not automatically and mechanically infer practical consequences from the understanding or explanation. We cannot reduce practice to a theory. Philosophy is not inherently practical. Philosophy can explain how we make practical decisions but not what practical decisions to make. Practical decision-making is the ‘pursuit of intimations’ (analogue to induction) of previous practice. A specific decision or even the advocacy of a decision can be understood, rhetorically, as a speech embodying the following elements: It diagnoses the situation; it makes a proposal about what the response to it should be; it recommends this proposal by considering a large number of the consequences likely to follow from acting upon it; it balances the merits of this proposal against those of at least one other proposal; and it assumes agreement about the general conditions of things to be preferred. Arguments constructed by this process cannot be ‘refuted’ at all. They may be resisted by arguments of the same sort, which, on balance, are found to be more convincing (adjudication). Life cannot be reduced to the practical dimension (‘Voice of Poetry in the Conversation of Mankind’), and there is no way to make our moral lives totally coherent (‘Tower of Babel’). Honest and intelligent disagreement is always possible and likely. We live in a world of non-reductive moral pluralism. What kind of person can deal honestly with this kind of world? The answer is someone with the courage to accept personal freedom and responsibility. What institutional arrangement is most compatible with this kind of world? The answer is civil association. What kind of rules (law) does civil association require? The answer is rules designed to minimize conflict, not promote specific agendas.7

8 OAKESHOTT 

247

Philosophy8 Philosophy is Thinking about Thought.9 It is not the discipline that offers ‘the’ Big Picture (every other mode or voice also mistakenly makes this claim). It is a practice featuring the ultimate form of self-examination (Socratic) or self-critique (reveal basic presuppositions); it seeks to clarify concepts. It is therapeutic in that it can identify when thought has been misused (especially in the social sciences). Furthermore, it can dispel illusions, disentangle linguistic confusions, distinguish interpretive contexts, and deconstruct ontological distinctions. Most of all, it discloses the limits of discursive reason.10 Philosophers qua philosophers should not make moral judgments, because ‘the philosopher as such is in no better position to give than any other member of society.’11 As in Hayek, philosophy is a form of explication. ‘Philosophy begins with the concepts of ordinary, everyday knowledge … the process is always one of coming to know more fully and more clearly what is in some sense already known.’ As such, it can lead to ‘a new and more comprehensive meaning…from what we know to what we know more fully and more clearly apprehended.’12 Consequently, it is ‘a firmer consciousness of what we are trying to do.’13 As such, the history of philosophy is integral to philosophy: ‘we cannot understand our own questions and answers without understanding the questions and answers of others.’14 In comparison, it is anti-naturalist, anti-realist, anti-scientistic15 (therefore anti-positivist and anti-analytic to the extent that these movements are scientistic), and it is anti-ordinary language (no definitive closure; no ontological implications), anti-foundationalist (unlike Heidegger who reduces thought to action), anti-pragmatic (unlike Rorty and Habermas who smuggle into their account of practice a foundation in the form of a political agenda). It is most similar to the works of Wittgenstein, Hayek, and Gadamer. Increasing professionalization is bad for philosophy because it inexorably leads to a bureaucratic establishment that denies the autonomy of philosophy by assimilating it to logic, science, ideology, or the history of ideas. Schools of philosophy that take any set of doctrines as foundational betray the inherently critical character of philosophy. Properly done, philosophy is not teleological, it does not lead to any foundational, eternal truth or end-point. Nor is philosophy served by the pressures toward doctrinal conformity that arise in university departments and professional associations. Examining one’s assumptions is not something

248  N. E. NEDZEL AND N. CAPALDI

that only professionals do, nor is it even something at which they are especially good. In philosophy, the best way to defend a view is simply to elucidate it; it is futile to attempt to win arguments with other philosophers. ‘Philosophy consists, not in persuading others, but in making our own minds clear.’16

Social, Political,17and Economic Thought18 In contrast to the self-critical nature of philosophy, politics is the practice of attending to the general arrangements of a set of people (assumes a modern state with a monopoly on the legal structure). It is immanent in the sense that the amendment of existing arrangements is by exploring and pursuing what is intimated in those arrangements (what we have previously called ‘explication’). It is an initiation into an inheritance in which we have a life interest and the exploration of its intimations. Oakeshott distinguishes among four things: politics, political education, political theory, and ideology. The practice of politics is a form of management designed to ‘keep afloat on an even keel’ and not to arrive at a particular goal.19 Political education encompasses knowledge of a tradition of political behavior; a historical study of what people have said and thought—a manner of thinking—not to expose errors but to understand prejudices. It includes comparative studies, which are valuable in getting us to look more carefully at our traditions, learning how to participate in that conversation, and it has a philosophical dimension to the extent that we can place the role of political activity on the map of our total experience. Political education, punditry, and being an articulate ‘talking head’ do not entail greater success in the practice of politics. Political theory20 is the bogus attempt to infer practical consequences from an understanding or explanation. This cannot be done because ‘Politics’ is not an abstract genus which allows us to generalize about all societies. Moreover, even within a specific political inheritance, as we said earlier, an inheritance does not entail its future development. Therefore, political theory is intellectually illegitimate. An example of a political theory is an ideology. An ideology is an abstract principle that has been independently premeditated. It supplies in advance of the historical facts a formulated end to be pursued, and, in so doing, it provides a means of distinguishing between those desires which ought to be encouraged and those which ought to be suppressed or redirected. In this sense, anarchism is a normative position.

8 OAKESHOTT 

249

‘Freedom,’ ‘Equality,’ ‘Racial Purity,’ and ‘No coercion’ are examples of political ideologies reduced to a single abstract idea. To be educated into this ideology is to be taught how to expound, defend, and implement the ideology. Despite any claim to be un-premeditated, the content of an ideology is always drawn from a previous practice because no one can stand outside of all previous thought. Oakeshott is neither a theorist nor an ideologue. He is neither liberal, nor conservative, nor neoliberal, etc.21 He is a political educator. What does he contribute to our education? First, there is a significant difference between ancient and modern (post-renaissance) societies.22 Second, all ancient and some modern societies are enterprise associations in which the members think of themselves constitutively as part of a collective rather than individuals. The modern version of an enterprise association is one based not on religion, but instead on science— on what we have called the Enlightenment Project of social technology, what Oakeshott refers to as modern versions of the Tower of Babel. The modern version is also described as the politics of faith (‘to which “legislation” is indispensable’23). Our contention is that ‘rule thru law’ is located here, and Oakeshott agrees24: ‘The notion of a corporation, strictly speaking, may be supposed to have emerged in medieval jurisprudence with the recovery of [Justinian’s] the Corpus Juris Civilis….’25 Law here is ‘the rule-book of corporate association and therefore as rules related to the pursuit of the common purpose concerned…instrumental rules, not lex.’26 Third, some modern societies have introduced a self-understanding as a civil association,27 in other words, as a society with no collective goal. As a salt of the earth acquaintance once described it: ‘I mind my own business, and I expect other folks to mind they [sic] own business too.’ Civil association is embodied in individuals who think of themselves as ‘free’ to the extent that they are ‘in themselves what they are for themselves.’28 It is reflected in the politics of skepticism,29 in other words, in the politics of those who are skeptical about politicians and anyone else who claims he or she has a vision of a utopian world that will come true if only his or her proposals are adopted. Our contention is that the ‘rule of law’ is located here: ‘the sceptic observes in what is called the ‘rule of law’ a manner of governing … that wins his approval.’30 Of the three great revolutions of modern times (American, French, Russian), the first two ‘began in the style of skepticism’; ‘the first issued

250  N. E. NEDZEL AND N. CAPALDI

in the most profoundly skeptical constitution of the modern world, the Constitution of the United States of America, [but] the second, the French Revolution was soon diverted into the path of faith … The Russian Revolution alone owed nothing to the politics of skepticism.’31 Fourth, modern societies still retain some notion of themselves as a collectivity32 and are therefore an uneasy amalgam of both civil and enterprise association.33 Oakeshott expresses this duality34 in the 1939 introduction to The Social and Political Doctrines of Contemporary Europe, in Politics of Faith and the Politics of Scepticism35 and in On Human Conduct.36 Modern European states were ‘the outcome of human choices [spontaneous order], but none was the product of a design.’37 ‘The emergence of a state was, in one important respect, the legal integration of the inhabitants of its territory ….’38 The choice of terminology here is important, specifically the expression ‘civil association.’ Oakeshott does not use the term ‘liberalism’ for good reason. ‘Liberalism’ may originally have been intended as a description of a particular state of affairs but was soon turned into an ideology. As an ideology, ‘liberalism’ came to mean, confusedly, both something approaching libertarianism (classical liberal) and something approaching socialism (modern liberal). Without context, abstractions can be manipulated to mean anything. As a responsible scholar, in choosing to avoid using such terms, Oakeshott acknowledges (a) the historical fact that our world is heir to two kinds of association; (b) that both take the individual and the community seriously; (c) that both take ‘liberty’ and ‘equality’ seriously; (d) that both the emphasis on the ‘individual’ and the emphasis on the ‘community’ (e.g., common good) can be corrupted and co-opted; and (e) that the important issue is how one understands the relationship between these two types of association. Fifth, those members of modern societies who embrace and welcome the priority of civil association over enterprise association are autonomous individuals.39 Sixth, those members of modern societies who reject civil association or prioritize enterprise association in a permanent way are, when conscious of themselves, anti-individuals.40 Seventh, the most serious destabilizing threat to modern societies is rationalism in politics.41 The Rationalist stands (he always stands) for ‘for thought free from obligation to any authority save the authority of reason.’ He sees himself as the ‘enemy of authority, of prejudice, of the merely traditional, customary or habitual.’ While this seems good,

8 OAKESHOTT 

251

a Rationalist’s ‘cast of mind is Gnostic,’ meaning that ‘much of his political activity consists in bringing the social, political, legal and institutional inheritance of his society before the tribunal of his intellect.’ As such, his opinion of himself and his intellectual ability are greatly exaggerated, and what is to be feared even more is his searching ‘for an innocuous power which may safely be made so great as to be able to control all other powers,’ as well as his belief ‘that political machinery can take the place of moral and political education,’ and that there ‘is no knowledge which is not technical knowledge.’ The Rationalist wants to begin by ‘getting rid of inherited nescience and then to fill the blank nothingness of an open mind with the items of certain knowledge which he abstracts from his personal experience, and which he believes to be approved by the common “reason” of mankind ….’42 Rationalism is Pelagian; in its modern form, it goes back to Bacon and Descartes (both of whom tempered it). It is found in the French philosophes, the German Cameralists, Comte, Marx,43 etc. Rationalists,44 in this sense, are ideologues. Nor would it be surprising that every ideology soon produces competing sects and heresies. The whole point of ideology is to provide guidance for future action. Ironically, rationalists are unable to carry out their policies precisely because they fail to take context—especially culture—into account. While they may want everything to change according to their view of what is ‘rational’ and ‘scientific,’ that does not mean that others want—or should want—to ‘throw the baby out with the bath water.’ As one example, despite three rounds of attempts made since the 1960s, the rule of law has not been successfully introduced as a legal reform by the World Bank, the WTO, US AID, etc.45 The reasons they have been unsuccessful are several. First, they are unclear on the definition of the rule of law. Second, they ignore culture and try to impose changes that are alien to the preexisting legal culture, rather than building consensus in the target culture about what changes can or should be made. Under the pervasive influence of scientism (why Hayek criticizes social science) policy makers and scholars look for some general cause that can be manipulated to produce the desired result; there is no underlying social/economic cause only the historical evolution. It is an attempt to impose structure without meaning. One can introduce changes as long as they are coherent with past practice/history, as in the case of Chile, and are both generated and developed from within that culture and accepted by it.46 (Chile successfully rebuilt its entire criminal

252  N. E. NEDZEL AND N. CAPALDI

court system, labor court system, family court system and is working on its civil court system.) We neither deduce change from prior practice nor from some theory-turned-ideology. One can entertain the nightmare of an entire foreign policy guided by the belief that institutions can be transferred without considerations of culture and history or the varieties of cultural evolution. Another example would be the anarchic libertarian who in the name of individualism would eliminate government and expect a legal system to emerge de novo, or eliminate national borders and romantically expect to produce a utopia as opposed to a massive invasion by those with no inheritance of and a firm opposition to the whole idea of civil association. In both of the foregoing examples, wisdom can be found in reminding us of what is not possible. Eighth, Oakeshott does not advocate or defend civil association and the ‘rule of law’ on the grounds that it is some kind of timeless absolute truth. He believes that the best defense is to explain what something is, which is what he does here. He does not partake of the Skinnerian confusion between scholarship and ideology. Oakeshott is pursuing the intimations of an important part of his cultural and intellectual inheritance. Civil association and the ‘rule of law’ are ‘contingent response[s] to a historic situation and … the outcome of self-education.’47 However, it is difficult to imagine advocates of enterprise association making the same kind of philosophical and historical claims without delegitimizing their own position. Oakeshott accuses them of a kind of inconsistency and guilt wherein they promise both equality and liberty.48 The difference between Oakeshott, on the one hand, and Rawls–Dworkin, on the other, is striking. Faced with moral pluralism, Rawls clings to the utopian faith in an overlapping consensus; Dworkin reassures us of a utopian holism. Oakeshott, on the other hand, provides a way for us to manage our differences rather than fantasizing them away.

Philosophical Jurisprudence49 Given what was said above, what would a philosophical jurisprudence or philosophy of law comprise? To begin with, it would initially focus on conceptual clarification (e.g., give a definition of ‘law’ and such concepts as the ‘rule of law,’ etc.). Second, it would relate such concepts to the social/institutional practices they reflect (legislating, adjudicating, etc.). It is this second dimension that is lacking in analytic jurisprudence in general, and this lack reveals the shallowness of Hart’s work. Third, the history of the practices would add a further level of clarification

8 OAKESHOTT 

253

(e.g., the evolution of the English common law), and this includes comparative studies with other different conceptions of legal practice (e.g., Continental enterprise association law). The historical dimension is not subject to further elucidation, and it is most certainly not a theory with entailed public policy implications for the future. Since it is not a theory it will not degenerate into a premeditated ideology as in Dworkin (Fig. 8.1). Oakeshott believed that much of the previous work in jurisprudence lacked coherence. He was cognizant of the ongoing tension in legal literature, as we discussed in a previous chapter, between analytical jurisprudence and historical jurisprudence. In his judgment, both historical jurisprudence and analytic jurisprudence as such were incomplete.50 In order to overcome this confusion and its limitations, he offered a philosophical jurisprudence. It ‘begin[s] with the definition of the concept of law [which Oakeshott will do in his 1983 essay] supplied by what we have called analytic jurisprudence…deducing its nature from a study of what were presupposed to be legal systems’;

,ŝƐƚŽƌŝĐĂů

/ŶƐƟƚƵƟŽŶĂů

ŶĂůLJƟĐĂů ;ĚĞĮŶĞďLJ ĞdžƉůŝĐĂƟŽŶͿ

Fig. 8.1  The realms of a philosophical jurisprudence (Source Authors’ creation)

254  N. E. NEDZEL AND N. CAPALDI

a.  In the human world, the very identification of the object to be defined already presupposes some prior understanding; as Oakeshott put it, ‘what we call “the text” is itself an interpretation’51 Hayek makes this same point: ‘Closely connected with the objectivism of the scientistic approach is its methodological collectivism, its tendency to treat wholes like society or the economy as definitely given objects…where we have to deal with social wholes…[e.g.] “legal systems”…The error involved in this collectivist approach is that it mistakes for facts what are no more than provisional theories, models constructed by the popular mind to explain the connection between some of the individual phenomena that we observe…[we become] victims of the fallacy of “conceptual realism”….’52 b. This is what Kelsen, others and eventually Hart tried to do. c. By itself, this interpretation is inadequate.53 d.  Law cannot be defined outside of a system; this is what Fuller called to our attention. ‘[W]hat distinguishes it [analytical jurisprudence] from all other explanations is not the exclusion of both ethical and historical considerations (… it does not…exclude these altogether)54 but its presupposition that law is a body of interrelated principles … there are certain “basic elements which are inherent in the very conception of law, considered as a phenomenon of social life.”’55 Raz and Dworkin among others will acknowledge this in their elucidations and critiques of Hart. e. The system exhibits norms; Fuller will spell out these elements in his critique of Hart; Oakeshott will acknowledge Fuller’s principles. f. Oakeshott will add to this that a complete definition of law includes three elements: rules of legislation, adjudication, and policing. Second, ‘A wider, less inadequate context would be sought…in the politics of the community which lived under a system of law…’ a. Exemplified in Dworkin’s criticisms of Hart. b.  Exemplified in Oakeshott’s distinction between civil association and enterprise association and in the differences to which this gives rise in the meaning of the rules (procedural vs. instrumental) in their respective systems.

8 OAKESHOTT 

255

Third, ‘[F]rom politics the enquiry might turn to history, to economic organization, to social structure, to individual and social psychology, to moral ideas.’56 In his later works, Oakeshott moved away from the pretensions of the social sciences and came to see the fundamental importance of history. a. In his last set of published writings, he grouped together the essay on the ‘Rule of Law’ with his essays on historical understanding. b. Oakeshott is cognizant of the differences between the common law and Continental jurisprudence and the historical origins and evolution of those differences. c. This historical dimension/difference was crucial for Oakeshott, as we have seen for Hayek as well. d. It accounts for why the ‘rule of law’ is to be found only in a civil association.

Law57 A formal analysis and definition of both ‘law’ and the ‘rule of law,’ which should not be conflated, do not fully emerge until the 1983 essay. An implicit understanding is present in earlier works, most especially in On Human Conduct. In that work, Oakeshott was focused on understanding modern European states in the widest sense as an ongoing tension between two different models, civil association and enterprise associa­ tion.58 ‘Each is an idiom of contingent human character .…’59 Earlier, Oakeshott had recognized that ‘[T]he history of Western European philosophical jurisprudence shows not a single tradition, but a number of traditions.’60 The latter thesis about law reflects the previous thesis about forms of social-political-economic association. This is very useful for our purposes. A refined restatement of our overall thesis is that the ‘rule of law’ needs to be distinguished, in our terminology, from the ‘rule thru law’; each of these conceptions has been confused with the other in that both are called ‘the rule of law’ and both are deeply embedded in the European tradition. As we shall see, ultimately, the ‘rule of law’ properly understood is the norm of law in civil association and that ‘rule thru law’ is the norm of law in enterprise association. Both are forms of law”, but there is a significant difference: one is moral and non-instrumental (civil association), whereas the other is instrumental.61 And while Oakeshott makes a strong case that both

256  N. E. NEDZEL AND N. CAPALDI

conceptions are present in all modern European states, he consistently singles out England62 as the preeminent example of the moral, non-instrumental ‘rule of law.’63 Oakeshott does not maintain that only English writers understand civil association, and by extension, the ‘rule of law.’ Hegel correctly identifies civil association in The Philosophy of Right.64 Nor does Oakeshott claim that all English writers are defenders of civil association. Francis Bacon is repeatedly identified as the originator of the worst forms of enterprise association.65 This does not undermine his own and others’ recognition that, historically speaking, the Anglo-American legal inheritance is more emblematic of a civil association. What it helps to do is to explain current and ongoing tensions and conflicts. It should therefore be no surprise that of special importance to him is the history of English law,66 ‘the ancient traditions of English politics,’67 precisely because medieval England is an example of the politics of skepticism,68 an attempt to ‘remove religious “enthusiasm” from politics.’69 Echoing Dicey, Oakeshott stresses that what is unique to the English political inheritance was the subordination of politics to law: ‘The great institutions which it bequeathed to the modern world were all of them courts of law…and the understanding of government…was that of judicial activity.’ And ‘a court of law is not the kind of institution which is appropriate to take the initiative in organizing the perfection of mankind .…’70 ‘“[L]egislation” and “administration” are understood in the judicial idiom.’71 Moreover, governing was ‘recognized as the activity of a court, the office of government … understood as the maintenance of rights.’72 In England, ‘“rights”… were not recognized as natural or primordial; they were known to have been established by a juridical process out of the tangle of personal relationships which preceded their formulations.’73 We are reminded here of Hume’s History. The English Parliament survived while similar representative institutions on the Continent did not, in part, because of its judicial character: ‘Assemblies which were not at all or not preeminently judicial such as the States General of France [emphasis added], succumbed, while judicial assemblies, like the Parlement of Paris, survived.’74 No matter how powerful a government is, Oakeshott finds that it is more difficult for it to abolish an institution that has a judicial character than to abolish an assembly that lacks such a nature. ‘The belief that England was a civil association – the belief expressed in Sir Thomas Smith’s De Republica Anglorum and in Hooker’s Laws of Ecclesiastical Polity – was never seriously shaken.’75

8 OAKESHOTT 

257

Even under Cromwell, Ireton, and the Levellers, government was ‘limited by “fundamental law”’ and existed to protect ‘established rights.’76 It is from within this framework that the notion of the ‘rule of law’ emerged, understood as ‘the enforcement by prescribed methods of settled rules binding alike on governors and governed … [that] leaves no room for arbitrariness.’77 As Oakeshott spelled it out a few years later, ‘the so-called “rule of law” was recognized … as an emblem of the necessary conditions for the enjoyment of individuality.’78 Oakeshott is sensitive to the extent to which England and subsequently the United States are cultural and intellectual frameworks especially hospitable for philosophy understood as explication, for the politics of skepticism, for civil association, and for the ‘rule of law.’ He frequently mentions Hobbes, Hume, and Burke as well as Coleridge, Calhoun, Macaulay, and the authors of the Federalist Papers. He is critical of Locke, whom he describes as ‘a political sceptic who inadvertently imposed the idiom of faith upon the skeptical understanding of government’79 by turning ‘historical’ rights into metaphysical/theological ‘natural’ rights. ‘[M]any Americans, and almost all Continental writers, believe erroneously that parliamentary institutions were the offspring of rationalist politics.’ As Oakeshott indicates, this error is perhaps excusable because parliamentary institutions in both the United States and the Continent developed at the same time as rationalist politics. The only appropriate correction of this error is the knowledge of the history of England and that its parliamentary institutions grew during the least rationalistic period in English politics—the Middle Ages—and ‘were connected … with the common law, with the limitation of the exercise of political power and the opposition to tyranny in whatever form it appeared.’80 Despite the fact that Continental writers such as Montesquieu and Hegel had done so much to clarify the meaning of the ‘rule of law,’ it was clear that Continental thinkers (French philosophes, Cameralists, positivists, and Marxists) were the greatest intellectual enemies of the ‘rule of law.’ This collection of writers and their followers reflected a different history and a different cultural context: the culture of gemeinschaft, the servility that Tocqueville, Nietzsche, Hayek, Hoffer, and that Oakeshott himself81 had identified and diagnosed. The great Continental Anglophile writers (Montesquieu, Tocqueville, etc.) did not describe their own society but what they wanted their society to become.

258  N. E. NEDZEL AND N. CAPALDI

In On Human Conduct (1975), Oakeshott elaborates his understanding of law within both a civil association and an enterprise association. In civil association,82 law (or lex in Oakeshott’s terminology) is a ‘system of rules,’83 that do not tell us what to do (as in orders, commands, behests, injunctions, directives, prohibitions) but how to do what we choose to do. Such a system requires a ‘judicial court’84 with a procedure of adjudication (‘not a court of inquiry; its procedure is litigious and not inquisitorial, and its conclusions are judicial and not “managerial” decisions’).85 Adjudication is not ‘the arbitrary exercise of the so-called “subjective will” of the judge’86 [critique of legal realism and CLS]; nor does it refer ‘to the intention of the legislator…’87 Legal theorists, both English and Continental, have obfuscated this understanding. ‘The most difficult feature of the civil condition to identify and get into place has been law … because this law was exceedingly ambiguous mixture of rules of all sorts, of moral precepts and of imperatives and directives which were not rules properly speaking and from which it has been a supremely difficult task to disentangle and distinguish the law (not the rules of law) appropriate to the civil condition. It is made difficult also because the theorists of law have laid so many false trails (for example, misidentifying it as a “command” [Bacon, Austin, Bentham] and as instrumental to the achievement of substantive satisfactions), and have usually been so much more concerned with the so-called “sources” of law, with contingent beliefs about its authority, and with its so-called “purpose” than with what it is.’88 As in Hayek, Oakeshott is at pains to distinguish law from managerial legislation. Law in an enterprise association consists of rules ‘instrumental to the pursuit of what is already recognized as a common purpose.’89 With regard to Rawls’ understanding of the concept of the rule of law, Oakeshott notes the following: I have excluded from this account the reflections of some recent writers (e.g., Rawls…because, although they present a state as an association ruled by jus, they identify jus as a consideration of ‘fairness’ in the distribution of scarce resources, and ‘fairness’ as what rational competitors, in certain ideal circumstances, must agree is an equitable distribution. Here, lex, if it exists at all, is composed of regulations understood in terms of the consequences of their operation and as guides to the achievement of a substantive state of affairs.90

8 OAKESHOTT 

259

Rawls, in short, fails to see that the ‘rule of law’ is incompatible with an enterprise association, and it is an enterprise association that he is advocating. According to Oakeshott, ‘there is no place in civil association for so-called “distributive” justice; … Such a “distribution” of substantive benefits or advantages requires a rule of distribution and a distributor in possession of what is to be distributed; but lex cannot be a rule of distribution of this sort, and civil rulers have nothing to distribute.’91 As Hayek before him had pointed out, this is what happens when all law is conceived of as legislation and legislation is equivalent to managerial decisions: ‘a state in which there are managers, not rulers; role-performers related to a common purpose, not cives or subjects; instrumental rules, not lex.’92 Whereas Hayek saw the origins of this conception of law in nineteenth-century positivism, Oakeshott locates it with the Cameralists of the late eighteenth century, professors of public administration in German and Imperial universities.93 Oakeshott notes as well that although civil association ‘hovered unequivocally in the background of the thoughts of the early proponents of the so-called Rechtsstaat’ it was ‘abandoned by the later proponents.’94

‘The Rule of Law’95 (1983)96 Oakeshott’s discussion of the ‘rule of law’ follows the formula he had outlined in an earlier essay, ‘A Philosophical Jurisprudence’ (1938). The essay entitled ‘The Rule of Law’ provides a definition of that concept, describing what it must mean if it means anything at all. The political and cultural context is and has been provided in the discussion of civil association. He discusses the history of the concept as it evolved in European and English97 history from the medieval period to the present in several of his works. Within English history, Oakeshott notes the crucial seventeenth-century context, the pivotal role of Hobbes, and the reliance on nominalism. Oakeshott’s focus in this essay is to explain ‘The Rule of Law’ specifically ‘what it must mean’ not what it may ‘be made to mean when used as an ideological slogan.’98 In his previous work, he had been content to identify two different meanings of law: What it means in a civil association and what it means in an enterprise association. Several things are worth noting here. First, legal language has been corrupted to the point where we are in danger of total obfuscation. Hence, Oakeshott will propose a way of cleaning up our legal expressions. Second, Oakeshott

260  N. E. NEDZEL AND N. CAPALDI

was concerned that the expression ‘rule of law’ had been misappropriated by various and sundry advocates of some form of enterprise association (e.g., Rawls)99—thereby obfuscating the difference between civil and enterprise association. Third, by ignoring what the expression ‘must’ mean, some advocates of civil association as well as almost all advocates of enterprise association were undermining civil association. The points he makes are as follows: 1. ‘Law’ (now understood as lex) means a non-instrumental rule.100 It is not a command, a prudential recommendation, a direction or set of directions, a warning, etc. Many societies claim to have ‘law’ but what they really have are instrumental rules designed to achieve some larger purpose. 2. ‘Law’ properly understood is a form of moral101 association: It is prescriptive or normative; it imposes obligations upon us. It is not something that can be understood or reduced to a description [Kelsen and Hart] such as a ‘habit of obedience.’ 3. The specific kind of obligation it imposes is procedural,102 not substantive; it tells us how to do something not what to do (not a command, etc.). Individual freedom is not the goal of the ‘rule of law’ but part of its presupposition—namely individuals interacting in a civil association. By linking it with civil association, Oakeshott’s treatment of the role of individual freedom in the ‘rule of law’ is an improvement over the versions of Dicey, Leoni, and Hayek. The ‘rule of law’ avoids being just another ideology. 4. A system of laws is also a form of moral association.103 Fuller was correct. The procedural norms of such a system are the ones Fuller identified. Fuller104 did not confuse this as the external standard for law but saw it as something intrinsic or internal to law itself. 5.  The rules so understood must be authentic. To be authentic means the rules were formulated by those with the authority to do so. That authority is itself the product of other procedural rules.105 The Legislature is (a) ‘the maker and custodian of the law’; (b) but it is not ‘necessary for this office to be the sole source of law’; nevertheless (c) ‘the latter [other sources such as custom] must be lodged within the custody of the legislative office.’106 There is no higher justice (jus) perspective from which to judge authenticity.107 There is no rule of recognition

8 OAKESHOTT 

261

[Hart], no fundamental norm [Kelsen]. There is no objective or Archimedean perspective—we are here reminded of the Copernican Revolution in Philosophy, of what Wittgenstein and Hayek have said about judging the correctness of a practice. There is only ever the explication of practice.108 All thinking must terminate in some agreed-upon practice; there is nothing outside of all practice. Those who claim that there is an outside to the inside destabilize or destroy the community. Theories109 of justified revolution, appeals to a higher law or so-called natural law, natural rights, etc. are misguided, bogus, or disingenuous intellectual exercises. Either you subscribe to the practice or you don’t. 6. To follow such rules is not to obey them but to subscribe to them. Only commands, directions, etc. can be, strictly speaking, obeyed or disobeyed. To speak of ‘obeying the rules’ is to misspeak by confusing a rule with a command. 7. To subscribe to the rules is to acknowledge their authority. This does not entail approval of what is authorized. To acknowledge such authority is to fall within its jurisdiction. 8. Since there will be disagreements about whether a specific performance is an adequate subscription, there must be a ‘judicial office, a court of law concerned with considering actual performances solely in respect of their legality.’110 The procedures of a court of law are different from those of the office of legislator or rule-maker.111 In this respect, ‘Dworkinesque judges usurp the office of legislator.’112 Adjudication is ‘not concerned to arbitrate between competing substantive interests….cannot entertain speculations about the intentions of legislators….knows nothing of a “public interest”…knows nothing of unconditional “rights”….’113 It ‘does not establish a precedent beyond its “analogical force.”’114 9. What also is required is an authorized office with procedural rules and the power to ‘compel … detect … prosecute ….’115 10. When all of the foregoing conditions are met then we have the ‘rule of law.’ ‘[T]he rule of law’ is an expression which ‘stands for a mode of moral association exclusively in terms of the recognition of the authority of known, non-instrumental rules (that is laws) which impose obligations to subscribe to adverbial conditions in the performance of the self-chosen actions of all who fall within their jurisdiction.’116

262  N. E. NEDZEL AND N. CAPALDI

Oakeshott reminds us that this notion of the ‘rule of law’ has been theorized and has been reflected upon, but never totally, in the practice of modern European states to the extent that such states are or have been civil associations.117 He credits two peoples for initiating the ‘rule of law’: the Romans and the Normans.118 Although he does not here explain why, we surmise that he identifies them because (a) the Romans (not Justinian) always began with local practice; (b) distinguished between two types of contract— one of which was among individuals without pre-contractual obligation (something Henry II made fundamental to English law) as well as not insisting that local law had to be totally subsumed under Roman law; (c) thereby had a version of civil association119; and (d) the Normans did the same in not extinguishing the decentralized practices of the Anglo-Saxons. What Oakeshott is engaged upon can be described as ‘conservative’ jurisprudence as opposed to ‘rationalist’ jurisprudence. Critics of this explicatory jurisprudence will charge that explicators much pick and choose ‘key’ practices but that the choice cannot be justified by appeal to anything other than an intuition about our practice. Defenders of conservative jurisprudence will answer that there is no alternative. Quite the contrary, advocates of exploration are themselves inconsistent. To theorize about the hidden structure behind any practice one must first identify the object of analysis (i.e., the practice). To do this, one must already possess an intuitive common-sense understanding of the practice. Theoretical analysis is forever parasitic on the intuitive understanding and can never get beyond it. In examining a social practice, we are not really observing an independent object as the physical sciences presumably do; rather, we are examining what we mean by what we are doing. It is impossible to explore the hidden structure of our practices. There is none! A social practice is an intersubjectively shared framework of norms that tell us, adverbially, how to engage in the practice. In order to identify a social practice, one must specify the intersubjectively shared framework of norms. If the framework is intersubjective, then no specification of the framework is legitimate that does not accord with previous (historical) and present practice. One must have already engaged in explication before one can engage in exploration. If there is no consensus explication, what would be the function of an exploratory hypothesis about the hidden structure of a social practice? Under these circumstances, an exploration could only be a form of advocacy for one version of explication and/or an attempt to discredit rival explications.

8 OAKESHOTT 

263

The more encompassing (e.g., Marxist) claim that rival explications are historically converging toward one’s own version is just a disguised meta-exploration. It is impossible to ‘judge’ among alternative explications other than to appeal to a consensus explication on another (higher) level. The inherently conservative nature of explication inevitably reasserts itself. All any rival can do is offer a ‘speech’ to other practitioners appealing to this higher consensus. Norms can and will conflict. These conflicts can only be discovered retrospectively. The resolution of the conflict can only be by reference to other implicit norms, not by appeal to anything outside of prior practice. The logic of explication is inherently conservative, for the explication of practice is always parasitic upon practice itself. Law can be understood only by appeal to something which is pre-theoretical (e.g., common sense). Technical thinking, no matter how valuable within its limited and circumscribed sphere, can never replace pre-theoretical or prior practice. Rival views in technical discourse must be judged ultimately by appeal to pre-theoretical norms. Nor can one develop a technical account of pre-theoretical reasoning, for, on pain of incoherence, there would be no possible way to judge the adequacy of proffered technical accounts. The implications of this argument are that: (1) Social science is not ‘SCIENCE’; (2) social-scientific arguments are not adequate substitutes for explicatory moral arguments; and (3) failure to grasp this argument allows technical elites to disguise, perhaps even from themselves, private political agendas as ‘science’ or ‘scholarship’ and ultimately become political despotism.

Threats to the Rule of Law120 Modern European states have evolved ever larger centralized bureaucracies.121 In part, this has been the result of a history in which it was easy to confuse ruling a realm and managing an estate; reinforced by the acquisition of colonies; necessitated by war among states and necessitated as well by the presence of anti-individuals who are incapable or unwilling to accept personal responsibility.122 Aggrandizement is caused as well by adventures in teleocracy by which Oakeshott means the endless profusion of suggestions by people who want to be part of or to be the leaders of some all-encompassing enterprise. The greatest threat he believed to be the Baconian or technological123 conception of a state,124 the state as an economic enterprise association.

264  N. E. NEDZEL AND N. CAPALDI

Summary Two recent authors have attempted to respond to Hayek’s and Oakeshott’s positions on the ‘rule of law.’ First, Raymond Plant’s book The Neo-Liberal State is designed (a) ‘to give a faithful account of the major aspects of the [alleged] neo-liberal theory of the state and its relationship to the economy and the wider society,’125 (b) to ‘provide the basis for a critique of these doctrines’ but (c) ‘not attempt…to present fully developed alternatives to neo-liberal views’126 (xi) [italics added]. By neoliberal, he refers primarily to Hayek and Oakeshott. Aside from the misnomer of calling their position a ‘theory,’ he largely achieves his first aim. In providing his critique, Plant implicitly reveals the Rousseauean origins of his thought process. Plant asserts that what Hayek and Oakeshott lack is an account of social capital. Citing Martin Hollis and Uslander, Plant maintains that such social capital depends on trust ‘which is strongest in those societies which exhibit what might be called a high degree of democratic equality [italics added]. This presupposes that there is scope for democratic decision making and also that there are not wide inequalities.’127 ‘Wide’ is not defined. In response to Plant, we note that both Hayek and Oakeshott acknowledge the existence and importance of what Oakeshott calls enterprise associations. What both would object to is the insistence upon a national or international enterprise association, and they would do so for two reasons: First, social capital needs to involve voluntary entry and exit, not majority vote; second, an overall enterprise association would look suspiciously upon sub-enterprise associations and civil associations as potential competitors. A national or international enterprise association is incompatible with the ‘rule of law,’ and it reflects the kind of dangerous collectivism against which both Hayek and Oakeshott warned. The second author is Martin Loughlin, who offers a similar conception of human nature:—‘[There are]…two equally powerful but contrary human dispositions: the desire to be autonomous and the desire to be a participant in a common venture. Since this is the situation, the objective of a positive theory of public right can only be that of developing the most effective apparatus we can that acknowledges the power of these competing claims. And since this disjuncture between freedom and belonging can be neither eliminated nor reconciled, it can only be negotiated.’128 The evidence Loughlin offers is a reference to Rousseau’s

8 OAKESHOTT 

265

Discourse on Political Economy: ‘Rousseau concisely expressed this dilemma when claiming that the state “cannot endure without freedom, nor freedom without virtue, nor virtue without citizens.” If we are able to create citizens, he added, we will realize liberty.’129 The only way to make sense of Loughlin’s position130 is to see him as advocating an enterprise association on the national, super-national (EU?), or world level. Apparently, he believes as an empirical fact that individuals have a basic need to be connected with everybody. This is what Hayek and Oakeshott would vehemently deny. In addition to making, we believe, the same response to Loughlin as Hayek and Oakeshott would have made to Plant, there is an additional response. What is telling in the Plant and Loughlin critiques is their failure to mention the one essay in which Oakeshott responds specifically to their concerns. That essay is ‘The Role of the Masses in Representative Government.’ What is in that essay? What is new in Western Europe is not the masses but the autonomous individual. This persona arose overtly during the Renaissance and accounts for all the creativity in Europe in every field. Prior to this, everyone was part of a community. Some people found the transition from a communal identity to a personal identity challenging and unattractive. The latter define themselves negatively against the autonomous individual. Whereas the autonomous individual wants ‘the rule of law,’ the anti-individual wants the state to become the new community in which they possess positive rights. The anti-individual is a pathological character, forever parasitic upon the autonomous individual. Oakeshott describes the anti-individual in Rousseauean terms: ‘The emergence of this disposition to be an individual is the pre-eminent event in modern European history … there were some people, by circumstance or by temperament, less ready than others to respond … the counterpart of the … entrepreneur of the sixteenth century was the displaced laborer … the familiar anonymity of communal life was replaced by a personal identity which was burdensome ….it bred envy, jealousy and resentment….a new morality …not of “liberty” and “self-determination,” but of “equality” and “solidarity”… not … the “love of others” or “charity” or … “benevolence” … but … the love of “the community” [common good] … [the anti-individual or mass man] remains an unmistakably derivative character … helpless, parasitic and able to survive only in opposition to individuality … The desire of the ‘masses’ to enjoy the products of individuality has modified their

266  N. E. NEDZEL AND N. CAPALDI

destructive urge.’131 Rather than reflecting a basic human need, they reflect failure to come to grips with the challenges of modern market society. Recognition of this Oakeshottean category would allow us to turn the table on Plant. What is the democratic socialist or social democratic state? The ‘democratic,’ part aside, is there any way to define it positively or must one always conceptualize democratic socialism in terms of what it is against? For example, when do ‘inequalities’ become too great? Which ‘inequalities?’ Perhaps now we can begin to understand why Plant does not offer a full-blown alternative. There is a failure in both Plant and Loughlin to comprehend what it means to be an individual in a civil association. Autonomous individuals do not need to justify either to others or to themselves why they give their consent to a system—there is no larger metaphysical reason—to believe so, as Plant does, is to commit oneself to a form of teleology. The ‘rule of law’ is an enormously practical mode of thinking. There are only ever specific contexts with a history (common law), and we can never move to a general level where the enunciation of principles leads to their own application without context unless we presuppose an enterprise association; those who conceive of themselves as libertarian, conservative, liberal, socialist, etc. fail to perceive the ‘rule of law’ as a specific alternative form of political organization, not a theory. One of Oakeshott’s major contentions is that we live in a world that is inherently morally pluralistic (not relatively). There is no rational way to achieve consensus; the ‘rule of law’ operates within this context; those who object to Oakeshott’s account either (a) have a private political agenda and wish to seize or maintain governmental power in the service of that agenda or (b) hold a theory about how the world ought to operate, a theory which has the same logical status of any other metaphysical doctrine on which there can never be consensus or (c) (b) is a rationalization of (a) surrounded with the appropriate semantic minefield. Oakeshott did not consider himself to be, primarily, a legal theorist, yet what he had to say about the ‘rule of law’ may be one of his greatest contributions. What most concerned him was the decline of his cherished civil association, a decline that he had always seen as beginning in the last half of the nineteenth century (a belief he shared with Dicey and Hayek). The idea of civil association was not an ideology (something into which ‘liberalism’ could degenerate) nor was it a set of specific

8 OAKESHOTT 

267

public policies for which Oakeshott was trying to manufacture a narrative or theory. Civil association was, first and foremost, a way of life that emerged primarily in England. Its most enduring institutional manifestation was its legal system, and what most distinguished its legal system was the persistence of the idea of the ‘rule of law.’ His essay on the rule of law132 was an attempt not only to clarify its meaning but also to rescue it from contemporary ideologues (e.g., Raz, Rawls, Dworkin) and detractors. It was not simply, as Hayek and Leoni thought, threatened by legislation per se but by a specific kind of legislation, namely legislation intended to produce a collective utopian goal (enterprise association). Law in the form of legislation could conceivably have a positive role both in the management of conflict and to the extent that it enabled freedom without its loss elsewhere. Oakeshott does not try to guarantee that in a morally pluralistic world all individuals will achieve some sort of utopian resolution. He shows through the explication of his social inheritance how autonomous individuals might coexist. ‘If a society is to be saved from a corrupt consciousness it will be saved … by knowing itself and having its values recreated.’133 It is for this reason that Oakeshott was the last and greatest British philosopher of the twentieth century.

Conclusion In his book The Crisis of Parliamentary Democracy, Carl Schmitt (1923) pointed out that there is a fundamental conflict between the institutional practices of a ‘liberal’ society (with its focus on the sanctity of the individual) and a democracy. The democratic myth, which we have argued is a product of the Enlightenment Project, is that all conflict can be resolved by informed rational discussion. In reality, there are not only limits to discursive reason, but we also must deal with a moral pluralism in which parliamentary party politics involves negotiation among interest groups. There are no objective limits and no procedural restraints, including ‘rule thru law,’ on what a democracy can do (what Tocqueville and Mill identified a long time ago as the tyranny of the majority). If Dicey, Leoni, Fuller, Hayek, and Oakeshott are correct, the only such restraint to have emerged historically is the ‘rule of law’ in a civil association as exemplified in the Anglo-American legal inheritance. In our book, we have tried to tell that story.

268  N. E. NEDZEL AND N. CAPALDI Acknowledgments   We take this opportunity to thank Timothy Fuller not only for introducing us to the works of Oakeshott but also for initiating us into the Oakeshottean inheritance. There are now an extraordinary number of good articles and books on Oakeshott and that have informed our understanding even when we do not specifically cite them. See, for example, Richard Flathman, John Coats, John Gray, Steven Grosby, and Kenneth Minogue.

Notes









1. As readers ‘conversing’ with Oakeshott’s texts we soon come to realize that as an original thinker Oakeshott was engaged, like Wittgenstein and some others, in a kind of philosophical therapy. In re-reading the texts, we are struck by how often we as readers keep asking of him the very kinds of questions that he is so skillfully deconstructing if not delegitimizing. 2. The remarkable parallels between Oakeshott and Hayek have been well noted by Leslie Marsh (2012 Companion, pp. 248–267). 3. In the interests of brevity, we have presented Oakeshott as a more or less finished product. The best exposition of the evolution of his thinking is Luke O’Sullivan (2003). 4. ‘Dilthey … opened up to us the idea of an autonomous “human” world … to be understood in its own terms and not those of the natural sciences … [this] was perhaps the most important of all the “rediscoveries” of the nineteenth century.’ Oakeshott (1966–1967, p. 21). 5. O’Sullivan (2003). 6. Such a theory if it could really exist would allow us to deduce future actions. This is what intellectuals in general (including legal thinkers and makers of codes of law) think that their knowledge permits them to do. This is a misguided conceit. It also helps to explain the attraction of messianic and totalitarian systems to many intellectuals—the complete theory that ties everything together and makes all of life meaningful. 7. Although too complex an issue to discuss here, it can be said that the Church of England has the doctrinal form of a civil association. 8. Oakeshott preserved three important epistemological conclusions from his early idealism, namely (a) a form of the Copernican Revolution in that mind plays an important role in shaping our experience, (b) a rejection of scientism and positivism in that mind cannot be reduced to matter, and (c) that there is no independent external reality against which we can check either our practice or our understanding of ourselves (something shared with Wittgenstein and Hayek among others). In the late 1940s and early 1950s, Oakeshott was deeply influenced by Polanyi (Science, Faith, and Society) and had read Ryle (Concept of Mind). This

8 OAKESHOTT 









269

is worth comparing to Hayek who was similarly influenced by Polanyi and directly by Wittgenstein instead of indirectly through Ryle. 9.  Part One of On Human Conduct (1975), ‘On the Theoretical Understanding of Human Conduct,’ is Oakeshott’s most extended discussion of what it means to engage in ‘theorizing.’ It deserves, but has not yet received, any kind of thorough or book-length discussion. We cannot (perhaps in more ways than one) provide one here. We note in what follows just a few things to exemplify its continuity to what we have said: ‘there can be no absolute distinction between “fact” and “theorem”’ (p. 2); ‘the understanding and the instrument of understanding emerge together’ (p. 4); the philosopher who thinks that from postulates of conduct we can deduce correct behavior is an impostor (pp. 26–31); ‘the theoretical understanding of conduct cannot itself be theorized in the terms of doing’ (p. 35). 10. In the introduction to his work on Oakeshott, Nardin points out that Oakeshott was unlike Dewey, Heidegger, Habermas, and Rorty because Oakeshott did not maintain that philosophy was inherently normative or practical; Oakeshott differed from Heidegger and Gadamer by recognizing a difference between the natural and the human sciences (the latter being historical). See Nardin (2001, pp. 4–10). 11. Oakeshott (1938, p. 167). 12. This appears in Oakeshott (1938, pp. 171–172). This predates similar views expressed by Wittgenstein and others. 13. Ibid., p. 183. 14. Ibid., p. 183. 15. See David Boucher (2012 Companion, ‘The Victim of Thought: The Idealist Inheritance,’ pp. 47–69). Our interpretation of the genealogy of Oakeshott’s thought is as follows. First, it begins with the HumeKant Copernican Revolution in Philosophy—there is no understanding independent of the mind’s activity, from which a modest Idealism is one natural consequence. There is no mind-independent account of the mind; hence, materialism, scientism, positivism, and analytic philosophy all fail to get this in their endlessly futile quest to conceptualize the pre-conceptual. The mind has to be understood in its own terms, hence the embrace of Hegel and Dilthey. Thought and the self-conscious mind are arrived at historically by reflection on the spontaneous order within action/practice. The focus on explicating practice is retrieved from Aristotle (minus the metaphysical teleology). Oakeshott sums it up as follows: ‘I am not ashamed to say that I learned most from Aristotle, Hegel, and Dilthey’ (2008, p. 183). Hayek’s philosophy is also rooted in the Hume-Kant Copernican Revolution in Philosophy. See Kenneth McIntyre (2012 Companion, ‘Philosophy and Its Moods: Oakeshott on the Practice of Philosophy,’ pp. 70–94).

270  N. E. NEDZEL AND N. CAPALDI





















16. Oakeshott (1933, p. 3). 17. O’Sullivan (2014, p. 473). Oakeshott’s attachment to socialism reflected both his early philosophical idealism and the romantic attraction of moral and spiritual reform. His ‘mature political philosophy, as presented in On Human Conduct (1975), appears from this point of view as the final outcome of an effort to emancipate himself from this vocabulary, a process in which the essays of Rationalism in Politics (1962) represent an interim stage. Readers have not generally appreciated the extent to which these essays were in fact a work of self-criticism ….’ 18. Oakeshott acknowledged the modern phenomenon that we have elsewhere called the technological project and what he identifies as ‘the exploitation of the resources of the world’ Oakeshott (1996, pp. 72–73). His ‘objection is not to the enterprise of exploitation’ and acquisitiveness per se but only when it is turned into the Baconian Project (Enlightenment Project) as an example of the Pelagian politics of faith (ibid.). He cites Hume and even Adam Smith among others as sharing his attitude. Thus, there is no Adam Smith problem for Oakeshott in reconciling the Theory of Moral Sentiments with the Wealth of Nations. 19. Oakeshott (1991a, ‘Political Education’ inaugural lecture). 20. See Thompson (2012). 21. Oakeshott considers these labels and associated theories as inadequate and sometimes dangerous attempts to understand the meaning of freedom. The same inadequacy can be found in Berlin’s distinction between ‘negative’ and ‘positive’ freedom; social ‘contract,’ etc. 22. Oakeshott admired Constant’s essay on the differences between Ancient and Modern Liberty. 23. Oakeshott (1996, p. 78). 24. Otto von Gierke (1841–1921), like Tonnies and Durkheim, is one of the major figures here. He wanted Germany to return to its social or communitarian roots and rejected the idea of law based on individualism (i.e., civil association). 25. Oakeshott (1975, p. 214). 26. Ibid., p. 264. 27. Oakeshott (1975, p. 301) ‘fatally confused with laissez-faire and with “democracy”…’ 28. Oakeshott ([1974] 1991b, ‘A Place of Learning’ p. 19). 29. Oakeshott’s discussion of the history of English law and politics is fittingly found in (1996, chapter Four, ‘The Fortunes of Skepticism’). 30. Oakeshott (1996, p. 88). 31. Oakeshott (1996, p. 80). In a footnote, Oakeshott says ‘The declaration de Droits de l’Homme et du Citoyen of 1789 is a skeptical document

8 OAKESHOTT 





271

… The version of 1793 has already begun to be infected with the politics of faith.’ See Capaldi and Lloyd (2016) for a fuller exemplification of the same point. In any case, we have another example here of both the similarity of insight in Hayek and Oakeshott as well as substantiation of the larger background difference between the Anglo-American judicial inheritance and the Continental legal tradition. 32. Oakeshott focused on the emergence of modern European states as intimated in the medieval inheritance. He objected to theorists who want to make tribalism as somehow original or fundamental, either as something to be overcome (as in Hayek) or as the natural state to which we seek to return (Hobsbawm). 33. Oakeshott (1975, p. 286, n. 1) acknowledges Ranke (whom he had read in the 1920s) as inspiring this reading, namely that ‘the dominant “theme” of modern European history is the tension between religious and civil association, continuously transformed.’ The rediscovery and absorption of Aristotle in the eleventh century were the source of both the enterprise vs. civil association tension and the evolution of secular versions of enterprise association. On this theme, there are other writers worth noting, including Eric Voegelin. Oakeshott was also influenced by Maitland’s stress on the ongoing tension between liberty and equality. This becomes a recurrent theme of Oakeshott’s work: The distinction between those who favored total planning of society by the state in which the individual is absorbed by the collectivity vs. those who favored a state which provided the legal framework within which individuals and groups had discretion in handling their own affairs—(1939, pp. xxii–xxiii, footnote); the 1958 Harvard Lecture; the distinction in the 1960s between teleocracy vs. nomocracy; and in the 1970s the distinction between societas vs. universitas. Oakeshott’s knowledge of intellectual history is remarkable, and we discuss it elsewhere in comparison with Hayek. We are not surprised that Oakeshott, who admires Aristotle’s understanding of practical reason, nevertheless saw the extent to which the rediscovery and absorption of Aristotle in the eleventh century was the source of both the enterprise vs. civil association tension and the evolution of secular versions of enterprise association. Aristotle was the intellectual fountain of teleology, and Aquinas’ adoption of Aristotle helps us to understand the extent to which the enterprise association is therapeutic (confession, penance, redemption) and becomes foundational for Roman Catholicism and is ultimately secularized. Again, all of this seems to have had a greater influence upon the Continent than upon England.

272  N. E. NEDZEL AND N. CAPALDI









34. A state understood as a societas is called by Oakeshott a civitas, and its government is a nomocracy (1975, p. 203). A state understood as a universitas is teleocratic. 35. Oakeshott (1996, p. 70). 36. Oakeshott (1975, pp. 200–201). 37. Ibid., p. 184. 38. Ibid., p 187. ‘…a state understood as a societas, and a state understood in the terms of a universitas … [are both] derived from Roman private law …’ (1975, p. 199). Oakeshott notes (1975, p. 208, n. 1) that some medieval writers ‘identified a notional civil association with the recovery of libertas Romana ….’ This view was also held by Leoni. According to Oakeshott, Cicero unequivocally identified ‘civitas and societas …’ (1975, p. 213). 39. Personal autonomy does not ‘imply the worship of nonconformity … does [not] forbid association in a co-operative undertaking … [and is not] self-gratification…’ (1975, p. 237). Oakeshott cites a number of writers who expressed this idea as far back as the twelfth century [here we are reminded of Macfarlane’s historical work] including Occam (1975, p. 240). Oakeshott’s favorite author in this vein is Montaigne. Among later writers he lists Pico della Mirandola, Montaigne, Hobbes, Pascal, Kant, Blake, Nietzsche, and Kierkegaard (1975, p. 242); Machiavelli, James Madison, Montesquieu, Constant, von Humboldt, Bodin, Spinoza, Fichte, and Hegel. It is ‘perhaps to be found hidden in the writings of Hume, it hovers (in a theological idiom) over Locke … and it is sketched with characteristic ambiguity in some of the writings of J.S. Mill’ (1975, p. 252). 40. An intermediate position is occupied by ‘individuals manqué,’ those who recognize the value of individuality but do not welcome the burden of pursuing it. They can become leaders (both political and intellectual) of the anti-individuals. Intellectuals who want to glorify their craft sometimes seek comfort by fashioning one or another myth about a ‘whole’ (sometimes referred to as modern liberalism) through which they are promoting or enhancing the individualism of others by some form of the politics of redistribution or therapy. This is not redemption through guilt but condescension. 41. From a philosophical point of view, rationalists are those who believe (contra Wittgenstein, Hayek, and Oakeshott) that you can stand both inside and outside the universe of discourse and practice. From an intellectually stylistic point of view, they will reject any analysis that does not terminate in an unassailable timeless abstraction; explication is anathema to them because it can never be final and definitive and without alternative; they are occasionally euphoric in the presence of a fashionable

8 OAKESHOTT 











273

exploration, at least before its inadequacies become obvious; they never produce a working model of what they claim to prize. The ultimate consequence is disillusionment or nihilism. It is a pose and in that sense a smug stance of moral and intellectual superiority. 42. Oakeshott (1991a, pp. 5–42). Lon Fuller (1940, p. 132) attributes a similar attitude to legal positivists: ‘The positivists get so into the habit of thinking of the law as an empty container that they run the risk of forgetting that it is, after all, a body of living material. If the creation of new law actually involved putting something into an empty container – as the positivist’s habitual abstractive method inclines him to suppose- it would naturally be accomplished by legislation.’ 43. According to Oakeshott (1991a, p. 3) ‘… nothing can compare with the work of Marx and Engels … beyond question they are the authors of the most stupendous of our political rationalisms ….’ 44. Those who make a fetish of the alleged free market are rationalists. They are no more than sophisticated utilitarians. See Oakeshott (1991a, the ‘Political Economy of Freedom,’ pp. 402–403). Hayek likewise condemns the same attitude, but it could be argued as Oakeshott hints that (a) the early Hayek and, later, his many followers are rationalists; but (b) in The Constitution of Liberty (1961) and in Law, Liberty, and Legislation (1973), Hayek moved from economics to law as the conceptual framework of freedom. 45. Nedzel (2010). 46. Nedzel (2010). 47. Oakeshott (1975, p. 325). 48. Oakeshott (1975, p. 321, n. 1). We might add that the usual distinction between classical liberalism and modern liberalism is reflected here in the latter’s attempt to combine individualism and communitarianism. 49. Oakeshott’s discussion of law can be found in five works: ‘The Concept of a Philosophical Jurisprudence’ Politica 3 ([1938] pp. 203–222, 345– 360 (1996); ‘Political Theory of Individualism’ (1958); On Human Conduct (1975); ‘The Rule of Law’ On history and Other Essays (1983). As a scholar at Cambridge in the early 1920s, Oakeshott read history, specifically the works of Dicey, Maitland, Acton, and Ranke. A similar argument is to found in Fuller (1940, p. 2): ‘… the legal philosopher. No one more than he runs the risk of forgetting what he is trying to do … It [philosophical jurisprudence] demands not only that we shall philosophize about the law, but that we shall to some extent philosophize about our own philosophizing to see what it is we are ultimately aiming at.’ 50. Oakeshott (1938, p. 177) ‘the incompleteness of the explanation of the nature of law offered in analytical jurisprudence.’

274  N. E. NEDZEL AND N. CAPALDI













51. Oakeshott (1938, p. 155). See Capaldi (1987) for the claim that all eliminative and exploratory explanations presuppose a prior explication. All this is another way of explaining why there cannot be a strictly scientific account of human endeavor or why the pre-conceptual cannot be conceptualized. This explains why Hart’s claim that he was doing a kind of sociology is mistaken. 52. Hayek (2018, ‘The Collectivism of the Scientistic Approach’). 53.  Here is Hayek’s take on this: ‘Hart draws an important distinction between “primary rules”… and “secondary rules” … Though this is of the greatest importance, I find it difficult to regard the development of this distinction as the “decisive step from the pre-legal to the legal word” … or to characterize law “as a union of primary rules of obligation with secondary rules” as very helpful’ (1976, p. 158, n. 3). In Hayek (1979, p. 207, n. 63), Hayek accuses Hart of making ‘the false dichotomy between “natural” and “artificial.” Law is, of course, neither an unalterable fact of nature, nor a product of intellectual design, but the result of a process of evolution in which a system of rules developed in constant interaction with a changing order of human actions which is distinct from it.’ 54. As we saw, this is something that Kelsen and Hart had to relearn about their own endeavors. 55. Oakeshott (1938, pp. 157–158; inner quote refers to John William Salmon, Jurisprudence, 1937, p. 5). 56. Oakeshott (1938, p. 176). 57. Oakeshott (1996, p. 77) specifically cites as his sources John William Salmon, Jurisprudence (1937), C. H. McIlwain, The High Court of Parliament(1923), G. L. Haskins, The Growth of English Representative Government (1948), and G. B. Adams, The Origin of the English Constitution (1912). 58.  Those of Oakeshott’s critics who contest this distinction are usually instrumentalists. See Nardin (2001, p. 203). The same can be said of those who deny the distinction between the ‘rule of law’ and the ‘rule thru law’. 59. Oakeshott (1975, p. 326). 60. Oakeshott (1938, p. 182). 61. Oakeshott (1975, p. 328). 62. ‘The absence of any large managerial engagement in this idiom [enterprise] from the government of England was often remarked by Continental writers (e.g. Montesquieu and de Lolme), but it was usually attributed to constitutional circumstances instead of to the relative strength of the belief in civil association’ (Oakeshott 1975, p. 301, n. 1). See also p. 282.

8 OAKESHOTT 



















275

63. ‘Freedom’ has a specific meaning within English culture. It is not French ‘liberté’. Freedom is not a specific liberty but the principle underlying liberties. A ‘Russian or a Turk’ might have ‘never enjoyed the experience.’ (Oakeshott 1991a, ‘Political Economy of Freedom,’ p. 387). 64. Oakeshott (1975, pp. 261–262). 65. Oakeshott (1975, pp. 269, 287–291, 310, 322). Oakeshott is also aware of St.-Simon’s nineteenth-century version of this and its inspiration for Comtean positivism. 66. Grant (1990, p. 9) claimed at that time that Oakeshott was ‘probably the greatest living political philosopher in the Anglo-Saxon tradition.’ 67. Oakeshott (1996, p. 89); The Politics of Faith and the Politics of Scepticism-originally written around 1951. 68. Ibid., p. 69. 69. Ibid., p. 81. ‘In England an official norm of educational religious solidarity emerged slowly and never established itself conclusively’ (Oakeshott 1975, p. 282). 70. Oakeshott (1996, p. 77). 71. Ibid., p. 78. 72. Ibid., p. 79. 73. Ibid., p. 79, n. 12. 74. Ibid., n. 11. 75. Oakeshott (1975, p. 282). 76. Oakeshott (1996, p. 72). 77. Ibid., p. 88. 78. Oakeshott (1993b, p. 52). 79. Oakeshott (1996, p. 83). 80. Oakeshott (1993a, ‘Scientific Politics’ [1947] pp. 109–110). 81. Oakeshott, ‘On Peace with Germany’ (1943), LSE 1/1/11. 82. Oakeshott (1975, pp. 124–134). 83. Ibid., p. 129. 84. Ibid., p. 131. 85. Ibid., p. 132. 86. Ibid., p. 133. 87. Ibid., p. 134. 88. Oakeshott (1975, pp. 181–182). 89. Ibid., p. 128. 90. Oakeshott (1983, p. 156, n. 13). 91. Oakeshott (1975, p. 153, n. 1). 92. Ibid., p. 264. 93. Ibid., p. 299, n. 1. One is reminded here not only of Weber’s later discussion of bureaucracy but also of Weber’s puzzlement (the so-called English problem) that England’s economic success relied upon

276  N. E. NEDZEL AND N. CAPALDI ‘unsystematic’ common law as opposed the rational jurisprudence of the Continent he thought was essential to capitalism. As Oakeshott (1975, pp. 293–294) points out, classical economics [e.g., Adam Smith] understands the market economy as ‘an association for mutual benefit, not a corporate enterprise.’ France and a unified Germany have always thought of the national economy as an enterprise association. The so-called French physiocrats, Quesnay and Turgot, applied the Enlightenment Project to economics. Physiocracy means the ‘government of nature’ similar to Chinese Taoism. They believed that national wealth derived solely from agriculture. Despite being in favor of private property and laissez-faire, they, like Rousseau, argued that all ‘industrial,’ ‘commercial,”’ and non-agricultural labor was parasitic, that cities were artificial whereas farming was natural. This view had two origins. First, during the late Roman Republic, the senatorial class was not allowed to engage in banking or commerce but relied on their plantations. Second, Quesnay was an avowed Confucianist inspired by China’s socioeconomic system, which ranked occupations with Mandarins (scholar-bureaucrats as well as landlords in Imperial China), at the top and merchants at the bottom. One can see all kinds of contemporary phenomena in this light (Mao’s cultural revolution, China’s subsequent adoption of markets but only as part of China-Inc., EU vs. Brexit). 94. Oakeshott (1975, p. 245). This is something Hayek attributed to positivism. 95. Oakeshott rarely referenced other writers. What is noteworthy about this essay is that he somehow manages to mention or to allude to everyone we have focused upon in contemporary philosophical jurisprudence. 96.  The analysis of the ‘rule of law’ in this essay was prefigured in Oakeshott’s summary of Hegel in (1975, p. 261). ‘Das Recht [moral association] …is a system of known, positive, self-authenticating, non-instrumental rules of law (Gesetze), enacted by human beings according to a procedure authorized in the system of law; capable of being considered in terms of their desirability and deliberately altered; related to the contingent conduct of persons within their jurisdiction in a judicial procedure which is further empowered to penalize inadequate subscription … and enforced in administrative procedures similarly authorized … which can be subscribed to only in self-chosen actions and cannot themselves prescribe substantive conduct; which not only allow “free” agency but postulate “free” agents as their Subjects.’ 97.  Again, it is worth repeating that all Continental writers past (Montesquieu, Hegel, etc.) and present who discuss the ‘rule of law’ begin with or are inspired by its English context. Even some

8 OAKESHOTT 















277

contemporary analytic theorists, like Raz, have finally come to terms with its English context. 98. Oakeshott (1983, p. 129). 99. Ibid., p. 170, n. 13. See Nardin (2001, p. 13): ‘Oakeshott does not share Rawls’ understanding of society as a scheme of cooperation conceived, in part, as an enterprise for distributing substantive benefits, or… that justice includes principles governing such a distribution. Like Robert Nozick, Oakeshott regards morality as a noninstrumental practice premised … on the rights of agents to recognition and respect. But he does not simply postulate such rights, as Nozick does; nor does he conclude that the market and the minimal state are, even in principle, joint instruments for securing the enjoyment of such rights.’ 100. What Oakeshott might have done, but chose not to, was to distinguish two versions of law. By insisting that law has to be non-instrumental he makes clear that there cannot be the ‘rule of law’ in an enterprise association. 101. ‘Ethics’ since Aristotle has traditionally stood for some form of teleology. ‘Moral’ philosophy came into being as a substitute for ‘ethics’ in the seventeenth and eighteenth centuries because of the demise of the belief in teleology. Some theorists still cling to teleology. Others, such as utilitarians, keep trying to reduce morality to something instrumental. Deontologists try to identify the necessary and sufficient conditions of morality. As we understand him, both of these moves are mistaken in Oakeshott’s view because they seek moral closure, something he denies. For Oakeshott, morality can be a product of custom or self-conscious ideals. Custom can lead to a communal morality or to an individualist morality (Anglo-American). Self-conscious ideals can express either an individualist morality (e.g., libertarian or social democratic) or a collectivist morality (e.g., democratic socialism). ‘Rationalism’ inevitably turns the libertarian position into a social democratic one (e.g., the transition from ‘classical’ liberalism to ‘modern’ liberalism). Relative to law, the ‘rule of law’ reflects an individualist morality that sprang historically from custom; ‘rule thru law’ is a self-conscious ideal that tries to be libertarian but becomes social democratic or democratic socialist. 102. Shirley Letwin (2005, p. 312) has observed that this was ‘the prevailing conception of morality in England, which was not dominant anywhere else.’ 103. A tyrant is someone who fails to subscribe to Fuller’s principles. We are now able to identify order without law = instrumental relationship between governors and governed—commands to specific persons to perform specific actions. 104. Oakeshott (1983, pp. 152–153).

278  N. E. NEDZEL AND N. CAPALDI











105. Oakeshott (1993a, p. 131): ‘Hans Kelsen, for example, has shown how the concept of the state may be reduced to that of law.’ The question has been raised of Oakeshott’s relation to Hart (whom he does not cite). Part of the answer is that Hart never got beyond the conceptual stage and thereby impoverished even that. We think part of the answer is that Hart really does not add anything to Kelsen, and, in the end, legal positivism wants to provide an instrumental (ideological) conception of law (in both cases democratic socialism)—something to which Oakeshott is opposed. To explicate ‘how’ the ‘rule of law’ functions in a civil association is not to give it a ‘purpose’ or tell us what we must do. It bakes no bread. This will, disappoint, legal ideologues. As already indicated, Oakeshott’s explication does provide side-constraints. 106. Oakeshott (1983, p. 138). 107.  Hobbes pioneered this notion of a ‘known and authentic legislator’ Oakeshott (1983, p. 163). Oakeshott observes that ‘this notion ‘hovers over’ the reflections of many so-called “positivist” modern jurists’ (1983, p. 175). This does not mean that positivism has a clear conception of the rule of law. On the contrary, it is prone to reduce ‘law’ to an instrument of social policy. Oakeshott’s opposition to positivism is most evident in positivist attempts to make history scientific (e.g., Hempel). Oakeshott’s rejection of positivism has led some to classify him as a kind of natural law theorist. It should be clear that he is not, and that Oakeshott (like Hayek) has here transcended the debate between positivists and natural law advocates. 108. Oakeshott connects this with his perception of the fundamental importance of historical understanding. It is no accident that it is included in the same set of essays as is ‘The Rule of Law.’ 109. To oppose ‘theories’ of revolution is not to oppose revolution per se. 110. Oakeshott (1983, p. 157). 111.  It is this feature that is lacking in Hobbes’ account. See Oakeshott (1983, pp. 173–174). In an earlier chapter, we drew attention to the tension between legislation and adjudication. 112. Oakeshott (1983, p. 157, n. 6). 113. Ibid., pp. 158–159. 114. Ibid., p. 159. 115. Ibid., p. 161. 116. Ibid., p. 148. 117. We owe to Timothy Fuller the following comment: ‘When Oakeshott wrote The Politics of Faith and the Politics of Scepticism, he reflected his conservative Hegelianism—a dialectical relation between alternatives which cannot be perfectly resolved in one direction or the other. Each pole as it strengthens also causes a strengthened response in opposition. Also, as we know from Experience and Its Modes, the ideal type of

8 OAKESHOTT 













279

a mode of experience is a construction of the observer who recognizes that in practice the ideal is implicit and in practice compromised.’ 118. Ibid., p. 178. 119. Oakeshott (2006, p. 246). 120. These are discussed both in Oakeshott (1975, 1983). Oakeshott did not live long enough to observe the present tension between private law (relation among individuals), so essential to the history of English law, and public law (law concerning the relation of the state to individuals). The tendency among those enamored of the preeminence of public law is to look to the Continent, e.g., France, as the model. See the recent discussion in Allison (1996); see Hayek’s critique (1976). 121. This is what Hayek and Leoni emphasized. Oakeshott’s elaboration is much more nuanced. 122. Civil association is not incompatible with the existence of certain features of a welfare state. However, if Oakeshott is correct in denying a human telos, then certain arguments for welfare such as making people whole again (therapeutic) are incompatible. Moreover, since the ‘rule of law’ does not entail a specific form of government it is not incompatible with denying the ‘poor’ the ballot or having a property (income) qualification for voting. In addition, since there is no telos, dirigiste regimes never can achieve consistency and coherence in their legal systems. They simply lurch from one project to another. This is analogous to Hayek’s arguments for why markets cannot be planned. 123. This corresponds to what Capaldi would call making the technological project into an enterprise or end in itself through the failure to develop or the elimination of limited government and the ‘rule of law’. Oakeshott would not be surprised that almost all ‘wars’ have become trade wars. 124. Oakeshott (1983, p. 166). 125. Plant (2012, p. xi). 126. Ibid. 127. Ibid. 128. Loughlin (2010, p. 11). This apparent need to be connected to others is reminiscent of the Rousseau, Rawls and Dworkin position that people are focused on how others see them (self-esteem) as opposed to the autonomous individual who grants himself/herself self-respect. 129. Ibid., p. 13. 130. In his lengthy and insightful review of Loughlin, Dyzenhaus (2013) sees Loughlin as trying to combine both the Laski LSE tradition and the Oakeshott LSE tradition. Dyzenhaus makes clear that ‘for Loughlin, “rule by law” includes both “rule by law” (the statute law enacted by a democratic parliament) and what is traditionally understood as “the rule of law” (the qualities of legality that serve the interests of individuals

280  N. E. NEDZEL AND N. CAPALDI







subject to the law in liberty and equality), with the result that he redefines ‘the rule of law’ rather dramatically. Loughlin’s wholesale endorsement of Raz’s argument that the rule of law serves to make the law into a better instrument of government amounts to a rejection of Oakeshott and his view that ‘the propriety which identifies the ius of lex must be composed of moral, non-instrumental considerations’’ (p. 318, n. 17). 131. Oakeshott (1991a, pp. 370–383). 132. Podoksik (2003) overstates, but only slightly and brilliantly, the view that the concept of ‘the rule of law’ is the key concept and the glue that holds all of Oakeshott’s mature views together. ‘On the Rule of Law’ was part of a collection that was the last set of essays published by Oakeshott (1983). Later publications were edited by others and were collections of previously written and both unpublished and published essays. 133. Oakeshott (1993a, p. 95).

References Allison, J.W.F. (1996) A Continental Distinction in the Common Law. Oxford: Oxford University Press. Boucher, D. (2012 Companion) “The Victim of Thought: The Idealist Inheritance,” 47–69. Capaldi, N. (1987) “Explication Versus Exploration: The Nature of Constitutional Interpretation.” American Bar Foundation Research Journal, Vol. 12, No. 1, pp. 233–248. Capaldi, N. and Lloyd, G. (2016) Liberty and Equality in Political Economy: From Locke vs. Rousseau to the Present. Boston: Elgar. Dyzenhaus, D. (2013) “Review of Loughlin.” University of Toronto Law Journal (Spring). Franco, P. and Marsh, L. (2012) A Companion to Michael Oakeshott. University Park: Pennsylvania State University Press. Hereafter (2012 Companion). Fuller, L. ([1940] 1999) The Law in Quest of Itself. Clark, NJ: Lawbook Exchange, Ltd. Grant, R. (1990) Oakeshott. London: Claridge. Hayek, F. (1976) Law, Legislation, and Liberty. Volume II. Chicago: University of Chicago Press. Hayek, F. (1979) Law, Legislation, and Liberty. Volime III. Chicago: University of Chicago Press. Hayek, F. (2018) Studies on the Abuse and Decline of Reason, ed. Caldwell. Collected Works, Vol. 13. Chicago: University of Chicago Press. Letwin, S. (2005) On the History of the Idea of Law, ed. Noel B. Reynolds. Cambridge: Cambridge University Press.

8 OAKESHOTT 

281

Loughlin, M. (2010) Foundations of Public Law. Oxford: Oxford University Press. Marsh, L. (2012 Companion) “Oakeshott and Hayek: Situating the Mind,” 248–267. McIntyre, K. (2012 Companion) “Philosophy and Its Moods: Oakeshott on the Practice of Philosophy,” 70–94. Nardin, T. (2001) The Philosophy of Michael Oakeshott. University Park: Pennsylvania State University. Nedzel, N. (2010) “The Rule of Law: Its History and Meaning in Common Law, Civil Law, and Latin American Judicial Systems.” Richmond Journal of Global Law and Business, Vol. 10, p. 57. Oakeshott, M. (1933) Experience and Its Modes. Cambridge: Cambridge University Press. Oakeshott, M. (1938) “The Concept of a Philosophical Jurisprudence.” Politica, Vol. 3, pp. 203–222, 345–360. Oakeshott, M. (1939) The Social and Political Doctrines of Contemporary Europe. Cambridge: Cambridge University Press. Oakeshott, M. (1943) “On Peace with Germany,” LSE 1/1/11. Oakeshott, M. (1966–1967) “The Emergence of the History of Thought,” LSE 1/1/23. Oakeshott, M. (1975) On Human Conduct. Oxford: Oxford University Press. Oakeshott, M. (1983) On history and Other Essays. Indianapolis: Liberty Fund. Oakeshott, M. ([1962] 1991a) Rationalism in Politics and Other Essays, ed. T. Fuller. Indianapolis: Liberty Fund. Oakeshott, M. ([1974] 1991b) The Voice of Liberal Learning, ed. T. Fuller. Indianapolis: Liberty Fund. Oakeshott, M. (1993a) Religion, Politics, and the Moral Life, ed. T. Fuller. New Haven: Yale University Press. Oakeshott, M. (1993b) “Political Theory of Individualism” [1958 Harvard Lectures]. In S. Letwin (ed.), Morality and Politics in Modern Europe. New Haven: Yale University Press. Oakeshott, M. (1996) Politics of Faith and the Politics of Scepticism, ed. T. Fuller. New Haven: Yale University Press. Oakeshott, M. (2006) Lectures in the History of Political Thought. Exeter: Imprint Academic. Oakeshott, M. (2008) The Vocabulary of a Modern European State: Essays and Reviews, 1952–1988, ed. Luke O’Sullivan. Exeter: Imprint Academic. O’Sullivan, L. (2003) Oakeshott on History. Exeter: Imprint Academic. O’Sullivan, L. (2014) “Michael Oakeshott and the Left.” Journal of the History of Ideas, Vol. 75, No. 3 (July), pp. 471–492. Plant, R. (2012) The Neo-Liberal State. Oxford: Oxford University Press. Podoksik, E. (2003) In Defense of Modernity. Exeter: Imprint Academic.

282  N. E. NEDZEL AND N. CAPALDI Schmitt, C. ([1923] 1988) The Crisis of Parliamentary Democracy. Translated by Ellen Kennedy. Cambridge, MA: MIT Press. Thompson, M. (2012 Companion) “Michael Oakeshott on the History of Political Thought,” 197–216.

Appendix: Timeline

Dicey (1885) Introduction to the Study of the Law of the Constitution Dicey (1905) Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century Oakeshott (1938) “A Philosophical Jurisprudence” Fuller (1940) Law in Quest of Itself Original Lectures Hayek (1944) Road to Serfdom Hayek (1955) Cairo Lecture on the Rule of Law Fuller (1960) “Adjudication and the Rule of Law” Hayek (1961) Constitution of Liberty Leoni (1961) Freedom and the Law Hart (1961) Concept of Law Fuller (1964) Morality of Law Dworkin (1967) “The Model of Rules” Dworkin (1968) “Is Law a System of Rules?” Fuller (1969) “The Principles of Social Order” Rawls (1971) Theory of Justice Hayek (1973) Law, Legislation and Liberty, Vol. I Hayek (1976) Law, Legislation, and Liberty, Vol. II Oakeshott (1975) On Human Conduct Dworkin (1977) Taking Rights Seriously Raz (1977) “The Rule of Law and Its Virtue” © The Editor(s) (if applicable) and The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4

283

284  Appendix: Timeline

Hayek (1979) Law, Legislation, and Liberty, Vol. III Dworkin (1979) “We Do Not Have a Right to Liberty” Finnis (1980) Natural Law and Natural Rights Oakeshott (1983) On History and Other Essays (“On the Rule of Law”) Dworkin (1986) Law’s Empire Raz (1990) “The Politics of the Rule of Law” Dworkin (1996) Freedom’s Law: The Moral Reading of the American Constitution Dworkin (2000) Sovereign Virtue: The Theory and Practice of Equality

Index

A Acton, J.D., 273 Adjudication, 9, 10, 23, 35, 95, 104, 112–116, 122, 138, 140, 143, 146, 161, 163, 167, 173, 181, 183, 193, 201, 220, 224, 228, 236, 246, 254, 258, 261, 278 Adverbial, 10, 193, 214, 261, 262 Allan, T.R.S., 220, 234 Allison, J.W.F., 6, 86, 141, 147–149, 155, 156, 194, 230, 279 Analogical, 62, 95, 106, 111, 163, 210, 261 Analytic jurisprudence, 3, 9, 15, 129, 159, 165, 167, 186, 202, 252, 253 Analytic philosophy, 11, 15, 20, 27, 29, 36, 37, 40, 41, 43, 51, 53, 54, 90, 170, 184, 187, 188, 195, 196, 215, 216, 220, 223, 228, 269 Anglo-American, 5–7, 9, 10, 13, 15, 21, 30, 38, 41–43, 47–49, 51, 59, 63, 72, 86, 102, 107, 108, 121, 124, 125, 137, 140, 141,

143, 145, 147, 151–153, 155, 159, 160, 162–167, 177, 180, 184–189, 192, 195, 200, 208, 210, 223, 228, 229, 231, 232, 236, 239, 256, 267, 271, 277 Anglo-Saxon, 8, 62, 96, 106–109, 111, 115, 123, 128, 132, 164, 208, 235, 237, 262, 275 Anti-foundationalist, 244, 247 Antigone, 163 Anti-individuals, 240, 250, 263, 265, 272 “A Philosophical Jurisprudence” (1938), 259 Aquinas, T., 26, 65, 98, 99, 127, 164, 237, 271 Archimedean, 43, 74, 114, 155, 190, 222, 224, 239, 261 Aristotle, 26–28, 51, 60, 63–65, 86, 96, 98–100, 104, 105, 127, 162, 237, 238, 269, 271, 277 Ashcroft, M., 128 Augustine, 26, 65, 96, 97, 109 Austin, J., 3, 14, 15, 121–123, 132, 177–179, 258

© The Editor(s) (if applicable) and The Author(s) 2019 N. E. Nedzel and N. Capaldi, The Anglo-American Conception of the Rule of Law, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-26361-4

285

286  Index Austria, 36, 170 Averroes, 26 B Bacon, F., 16, 38, 66, 81, 87, 113–116, 125, 146, 156, 168, 251, 258 Baconian Project, 8, 9, 156, 270 Baldwin, T., 52 Barden, G., 50 Batiza, R., 127 Becker, C.L., 12, 54, 195 Bede, 87, 128 Bell, D., 230 Benson, B., 131 Bentham, J., 10, 13–15, 35, 37, 38, 72, 81, 120, 121, 131, 141, 154, 156, 164, 168, 177, 179, 197, 198, 227, 258 Berger, P.L., 234 Berlin, I., 12, 132, 197, 270 Bill of Rights (UK), 115, 146 Black, A., 126, 128 Blackstone, W., 105, 114, 119, 120, 123, 128, 131 Bloch, M., 132 Bodin, J., 112, 272 Bonham’s (Dr.) Case, 115, 118 Boucher, D., 269 Bracton, H., 110, 128 Brexit, 86, 105, 149, 160, 202, 234, 276 Burgess, G., 130 Burke, E., 8, 56, 80, 81, 90, 119, 131, 155, 222, 235, 257 C Cairo Lecture, 9, 55, 196, 207, 208, 210, 239 Caldwell, B., vii Calhoun, J.C., 257 Campbell, J., 132

Capaldi, N., 14, 51, 54, 55, 89, 90, 127, 131, 132, 197, 201, 231, 232, 240, 271, 274, 279 Carnap, R., 38, 53, 54, 169, 195, 196 Carothers, T., 50 Carpenter, D., 128 Carter, J.C., 195 Catholic Church, 96, 99 Champs, E., 131 Chaos, 161 Charlemagne, 99 Chile, 22, 50, 251 China, 276 Christianity, 39, 65, 69, 71, 72, 96, 98, 107–109, 164, 169, 208 Chroust, A.H., 126 Cicero, 97, 163, 237, 272 Civil association, 10, 15, 42, 51, 72, 79, 111, 116, 118, 120, 123, 128–130, 145, 149, 150, 156, 161, 162, 188, 193, 197, 211–214, 222, 228, 231, 237, 243, 244, 246, 249, 250, 252, 254–260, 262, 264, 266–268, 270–272, 274, 278, 279 Civil law, 62, 106, 109, 112, 148, 161, 210, 211, 232 Coats, J., 268 Code, 97, 98, 100, 105, 109, 131, 173, 208, 226, 228, 238 Codification, 95, 121, 165, 166, 178, 211 Coherence, 10, 20, 22, 27, 36, 44, 45, 84, 95, 96, 111, 117, 144, 183, 185, 213, 215, 220, 253 Coke, E., 102, 105, 112–118, 122, 123, 130, 143, 144, 151, 236 Coleridge, S.T., 257 Collective good, 20, 40, 71, 102, 116, 126, 149, 173, 175, 176, 230 Collingwood, R.G., 88 Commentaries on the Laws of England, 119, 120

Index

Common law, 1, 8, 9, 34, 44, 62, 66, 69, 78, 95, 100, 101, 105, 106, 108–110, 112, 115–121, 123, 124, 131, 138, 139, 141, 143, 147, 148, 150, 152, 155, 162, 163, 172, 173, 177, 179, 181, 183, 190, 193, 207, 210, 211, 223, 226, 228, 235, 245, 253, 255, 257, 266, 276 Comte, A., 2, 4, 7, 13–15, 36, 38, 51, 53, 139, 154, 166, 168, 171, 251 Concept of Law (1961), 177, 180 Conservatism, 46, 47, 85 Constant, B., 78, 166, 270, 272 Constitution (UK) unwritten, 122, 138, 152 Constitution (US), 40, 102, 138, 168, 176, 217, 250 Constitution of Liberty (1961), 84, 239, 273 Constructivism, 38, 224 Continental, 5–7, 9–11, 37, 38, 40, 42, 43, 45, 53, 55, 59, 61, 62, 68, 81, 86, 87, 96–98, 102, 104, 105, 107, 108, 111, 114, 120, 124–126, 138, 140, 141, 143, 147–151, 153–155, 161, 163–167, 170, 173, 174, 177, 186–189, 192, 194, 195, 200, 201, 207–210, 222, 223, 226, 229–231, 236–239, 253, 255, 257, 258, 271, 274, 276 Copernicus, N., 26, 28 Corpus juris civilis, 163, 249 Cosgrove, R., 148, 156 Court of Equity, 114 Craig, P., 153 Creon, 163 Critical legal studies (CLS), 3, 159, 166, 217, 220–222, 258 Cromwell, T., 257

  287

Cropsey, J., 130 Custom, 3, 4, 23, 29, 35, 39, 45, 53, 75, 76, 105, 107, 108, 112, 115, 116, 120, 121, 123, 124, 154, 162, 163, 165, 167, 183, 189, 210, 213, 222, 224, 225, 235, 238, 239, 260, 277 D D’Alembert, 11, 131 Darwin, C., 27 Declaration of Independence, 38, 168 Deduction/deductive, 26, 38, 60, 66, 81, 96, 117, 144, 146, 162, 163, 168, 175, 222 Democracy, 3–5, 15, 37, 54, 83, 102, 103, 115, 154, 165, 174, 183, 186, 196, 202, 217, 234, 267, 270 Democratic socialist, 233, 266, 277 Den Uyl, D., 194 Descartes, R., 16, 26, 30, 33, 38, 52, 81, 168, 251 Devigne, R., 90 Dewey, J., 269 Dicey, A.V., 1, 5–7, 9, 10, 13–15, 19, 22, 43, 77, 83, 86, 112, 121, 125, 131, 137–151, 153–157, 159, 160, 163, 179, 182, 184, 186–188, 191, 192, 209, 219, 221, 223, 225, 230, 233, 234, 236, 238, 239, 243, 256, 260, 266, 267, 273 Diderot, D., 11, 131 Digest, 96–98, 111, 149 Dilthey, W., 27, 30, 53, 85, 200, 268, 269 Domat, J., 127 Durkheim, E., 270 Dworkin, R., 2, 6, 8, 9, 32, 35–37, 51, 55, 72, 104, 131, 141,

288  Index 145, 159, 169, 173, 180, 181, 184–186, 189, 191, 196, 199– 203, 208, 215–223, 227–230, 232–235, 252–254, 267, 279 Dyzenhaus, D., 53, 131, 279 E Egalitarian, 62, 81, 86, 131, 224 Elimination, 28, 49, 161, 216, 279 English, 3, 5, 7–11, 13, 21, 22, 34, 35, 45, 48, 59, 61–63, 66, 70, 74, 77–79, 82, 87, 97, 100, 102, 105–116, 119–124, 126, 128, 129, 131, 132, 137–142, 144–151, 154, 155, 160, 162, 163, 197, 198, 207, 209, 223, 232, 236, 237, 253, 256–259, 262, 270, 276, 279 English problem, 211, 275 Enlightenment Project, 2, 4, 7, 10, 12, 13, 15, 16, 35, 38, 40, 52, 70, 80, 87, 120, 121, 125, 139, 154, 156, 164, 166–168, 170, 186, 195, 207, 211, 220, 249, 267, 270, 276 Enterprise association, 53, 69, 79, 97, 111, 118, 123, 149, 174, 176, 192, 193, 197, 201, 208, 213– 215, 218, 228, 244, 249, 250, 252–256, 258–260, 263–267, 271, 276, 277 Epistemology, 20, 49, 67, 73, 81, 83, 212, 222, 229, 230, 244 Equality, 4, 15, 65, 72, 79, 116, 118, 123, 131, 139, 140, 142, 145, 146, 166, 180, 189, 199, 209, 215, 217–220, 224, 225, 230, 240, 249, 250, 252, 264, 265, 271, 280 equality before the law, 140, 142, 145, 146, 217, 219

Ethics, 51, 102, 122, 185, 187, 198, 218, 220, 233, 277 Euclid, 162 Explication, 8, 9, 21, 22, 29–31, 49, 70, 74, 77, 78, 81, 108, 118, 138, 152, 181, 196, 216, 233, 244, 247, 248, 257, 261–263, 267, 272, 274, 278 Exploration, 9, 28, 185, 216–218, 221, 233, 248, 262, 273 F Federalist Papers, 78, 257 Feyerabend, P.K., 32, 41, 55, 184, 201 Fichte, J.G., 209, 272 Finnis, J., 180, 202, 232 Flathman, R., 268 Fleetwood, S., 229 Forbes, D., 69, 89 Fortescue, J., 112, 129 Frank, J.N., 166 Freedom and the Law (1961), 150, 283 French, 2, 7, 11, 13, 15, 36, 38, 51, 55, 70, 80, 81, 90, 102, 107, 120–122, 125, 130, 131, 151, 168, 169, 209, 227, 239, 249, 251, 257, 275, 276 French Revolution, 100, 111, 209, 232, 235, 250 Freud, S., 171, 185 Fuller, Lon, 1, 5–7, 9, 10, 14, 22, 43, 55, 83, 90, 125, 145, 149, 155, 156, 159, 160, 163, 179, 180, 182, 188, 190–194, 196, 202, 203, 221, 223, 232, 234, 239, 243, 254, 260, 267, 273, 277 Fuller, Timothy, 86, 91, 130, 202, 268, 278

Index

G Gadamer, H-G., 53, 200, 247, 269 Galileo, G., 26, 66, 68 Gay, P., 11 General Will, 40, 102, 104, 162, 170, 173, 208, 214, 219, 221, 233 Germanic, 62, 63, 96, 106–108, 122, 162–165, 237, 238 Germany, 4, 36, 49, 54, 81, 83, 85, 98, 104, 129, 156, 166, 174, 176, 196, 201, 207, 209, 210, 214, 231, 238, 239, 270, 275, 276 Gierke, O.F., 104, 123, 132, 270 Glanvill, R., 109 Glorious Revolution, 63, 79, 106, 111, 139 Glossators, 98, 100 Gnosticism, 50, 171, 231, 232 Godel, K., 32 Goldsmith, J.D., 229, 240 Grant, R., 51, 275 Gray, J., 166, 268 Great Britain, 138, 149, 156, 178, 183 Greco-Roman, 62, 96, 106–108, 208, 237, 238 Grosby, S., 268 Grossman, J.L., 195 Grotius, H., 102, 103, 164 Grundnorm, 36, 40, 170, 172–176, 178, 181, 218, 219, 229 H Habeas corpus, 77, 78, 110, 115, 141, 147, 192 Habermas, J., 53, 55, 173, 201, 219, 233, 247, 269 Hahn, H., 195 Hale, M., 113, 114, 117, 129, 130, 151

  289

Hallowell, J.H., 231 Hamburger, J., 131 Hampshire-Monk, I., 129, 131 Hannan, D., 128 Hare, R.M., 199 Harrington, J., 118 Harris, T., 129 Hart, H.L.A., 2, 6, 8–10, 14, 32, 37, 39, 51, 53, 55, 72, 104, 121, 131, 145, 159, 160, 177–183, 185, 186, 189, 191, 192, 196, 198–200, 202, 215, 216, 218, 232–235, 239, 252, 254, 260, 274, 278 Harvard, 139, 190, 202, 271 Hayek, F., 1, 4–11, 13, 15, 19, 21, 22, 30, 32–43, 45–50, 52–56, 61, 64, 68, 70, 71, 75, 77–80, 83–90, 114, 118, 120, 125, 129, 132, 145, 149–151, 155, 156, 159, 160, 163, 165, 166, 169–173, 175–177, 179, 181–184, 187, 188, 190, 196–198, 200–202, 207–214, 218–240, 243, 245– 247, 251, 254, 255, 257–261, 264–269, 271–274, 276, 278, 279 Hazony, Y., 129 Hegel, G.W.F., 7, 8, 85, 87, 104, 165, 166, 209, 222, 231, 244, 256, 257, 269, 272, 276 Heidegger, M., 53, 55, 200, 201, 247, 269 Helvetius, 11, 121, 131 Hempel, C., 38, 51, 168, 278 Henry II, 96, 105, 109, 238, 262 Hercules (Judge), 218, 219 Hidden structure, 29, 185, 187, 215– 217, 220–222, 229, 234, 262 Historicism, 56, 208, 210, 225, 230, 238, 239 History, 5, 7–9, 13–16, 21, 22, 26, 33, 35, 36, 39, 41, 44, 48, 50,

290  Index 51, 53, 54, 56, 75, 77, 78, 80, 89, 102, 103, 105, 111, 114, 115, 125, 126, 128, 132, 137, 138, 143, 148, 151, 155, 159, 161, 163, 165, 166, 169, 180, 183, 184, 186, 192, 195, 202, 217, 230, 235, 236, 240, 244, 245, 247, 251, 252, 255–257, 259, 263, 265, 266, 270, 271, 273, 278, 279 History of England (Hume), 77, 78, 114, 118, 123, 257 Hobbes, T., 7, 8, 10, 63, 65–68, 70, 71, 76, 79, 82, 85, 87, 88, 113, 115–117, 129, 130, 151, 161, 237, 257, 259, 272, 278 Hoffer, E., 257 Hogue, A.R., 128 Holdsworth, W., 114, 128–130 Holmes, O.W., 14, 126, 166 Hooker, R., 256 Humboldt, W., 166, 209, 238, 272 Hume, D., 8, 11, 21, 30, 33, 45, 54, 63, 65, 68–80, 84–86, 89, 90, 104, 118, 119, 128, 155, 224, 256, 257, 270, 272 Huscroft, R., 128 I Ideology, 20, 75, 85, 97, 175, 223, 228, 235, 247–253, 260, 266 Immanent, 33, 43, 49, 74, 190, 224, 229, 236, 248 Induction/inductive, 1, 20, 51, 61, 64–66, 75, 95, 101, 106, 108, 110, 111, 144, 146, 147, 210, 246 Infantino, L., 89 Inheritance, 5, 6, 8, 10, 12, 13, 15, 19, 21–23, 30, 41, 42, 45–47,

49, 53, 54, 56, 59, 61, 63, 64, 68, 72, 75, 78, 81, 82, 102, 104–109, 111, 116, 120, 122, 137, 138, 140, 141, 143, 146, 153, 159, 160, 162–167, 172, 184, 187, 188, 192, 194, 195, 201, 207, 222, 223, 225, 238, 239, 245, 248, 251, 252, 256, 267–269, 271 Instrumental, 4, 145, 161, 162, 182, 191, 222, 249, 254, 255, 258–260, 277, 278 Introduction to the Study of the Law of the Constitution (1885), 138 Ireland, 107 Ius Ius civile, 163 Ius gentium, 163 Ius naturale, 163 J Jackson, B., 230 Jennings, I., 147, 148, 227 Jhering, R., 103, 104, 166 Johnson, N., 148, 156 Judge, 25, 28, 33, 49, 72, 95, 100– 102, 105, 109, 110, 113–115, 117, 119, 124, 126, 140, 141, 143, 144, 147, 149, 150, 152, 154, 156, 162, 166, 174, 183, 184, 186, 192, 194, 201, 202, 210, 217–219, 223, 233, 235, 245, 258, 260, 261, 263 Jurisprudence, 2–4, 9–11, 32, 55, 76, 97, 102, 104, 110, 121, 129, 141, 164, 166, 173, 177, 180, 190, 198, 208, 215, 216, 225, 234, 249, 253–255, 262, 273, 274, 276 Jury, 95, 112, 117, 154 Jus, 200, 258, 260

Index

justice, 3, 12, 22, 23, 34, 50, 69, 84, 102, 110, 115, 131, 180, 186, 190, 216, 227, 230, 235, 240, 259, 260, 277 Justinian, 37, 96–98, 100, 105, 111, 112, 149, 156, 163, 194, 208, 238, 249, 262 K Kant, I., 11, 30, 33, 56, 81, 82, 85, 89, 104, 166, 202, 209, 224, 231, 233, 238, 272 Kekes, J., 194 Kelly, P.J., 131 Kelsen, H., 2, 9, 10, 14, 36, 39, 40, 51, 53, 72, 159, 165, 170–181, 186, 189–191, 197, 198, 210, 219, 225, 227, 228, 230, 231, 239, 254, 260, 261, 274, 278 Kleinfeld, R., 15 Knowles, D., 87 Kramer, M., 202 Krieger, L., 231 Kuhn, T., 32, 39, 41, 54, 55, 169, 184, 195, 201 L Langdell, C.C., 166 Laski, H., 227, 279 Lautenbach, G., 201 Lauterpacht, E., 127 Law, 1. See also Civil law; Common law; Natural law administrative, 15, 125, 138, 141, 144–149, 153, 170, 221, 226, 234, 238 judge-made, 95, 109, 117, 120, 140, 145, 183, 236 private law, 101, 103, 105, 125, 141, 147, 149, 167, 209, 225, 234, 272, 279

  291

public law, 9, 101, 102, 125, 141, 149, 167, 208, 218, 225, 226, 234, 279 Law in Quest of Itself original lectures (1940), 283 Law, Legislation, and Liberty (1973, 1976, 1979), 9, 85, 129, 181, 208, 211, 224, 239, 240 Law’s Empire (1986), 216, 217 Lectures on the relation between law and public opinion in England during the nineteenth century (1905), 121, 138, 143 Legal positivism, 3, 4, 13–15, 36, 37, 39, 40, 103, 121, 159, 167, 170, 191, 200, 202, 208, 210, 224, 225, 234, 278 Legal realism, 14, 166, 258 Legal system, 3–6, 13, 15, 38, 41, 43, 48, 66, 74, 95, 96, 100, 103, 107, 109, 111–113, 115, 117, 120, 141, 145, 146, 150, 153, 171, 175–180, 186, 188, 191, 198, 200, 211, 217, 223, 235, 237, 252–254, 267, 279 Legislation, 4, 8–10, 13, 14, 23, 37, 45, 72, 103–105, 109, 112–115, 119, 123, 126, 138, 140, 141, 143–147, 150, 164, 165, 167, 183, 184, 194, 208, 209, 213, 217, 224, 226, 235, 236, 249, 258, 259, 267, 273, 278 Leibniz, G.W., 88, 103 Leoni, B., 1, 5–7, 9, 10, 22, 126, 130, 145, 150, 151, 156, 157, 159, 163, 184, 194, 196, 221, 223, 234, 243, 260, 267, 272, 279 Lesaffer, R., 15, 126, 127 Letwin, S., 89, 277 Levy, J.T., 128 Lex, 110, 116, 118, 200, 249, 258–260, 280 Lex Mercatoria, 120

292  Index Liberalism, 56, 88, 121, 131, 139, 162, 194, 199, 210, 225, 229, 231, 250, 266, 272, 273, 277 Libertarian, 56, 252, 266, 277 Liberty, 4, 6, 9, 10, 12, 15, 21, 30, 42, 62–64, 68, 70, 71, 74–79, 81, 82, 106, 107, 112, 115, 118, 123–125, 129, 131, 132, 137, 139, 141, 145–148, 151, 156, 160, 162, 175, 180, 188, 189, 194, 199, 203, 207, 208, 210, 218, 219, 221, 225, 227, 230, 232, 236, 240, 250, 252, 265, 270, 271, 275, 280 Lippmann, W., 230 Livingston, D., 54 Locke, J., 7, 11, 63, 65, 68, 69, 71, 76, 89, 105, 155, 257, 272 London School of Economics (LSE), 84–86, 275, 279 Loughlin, M., 6, 43, 86, 141, 147, 188, 194, 223, 234, 239, 264–266, 279, 280 Lovejoy, A.O., 127 Lyons, D., 234 M Macaulay, T., 257 MacCormick, N., 199, 200 Macfarlane, A., 7, 64, 87, 106, 128, 130, 132, 272 Machan, T., 194 MacIntyre, A., 12 Mack, E., 194 Madison, J., 221, 272 Magee, B., 232 Magna Carta, 35, 59, 105, 111, 112, 115 Maimonides, 26 Maine, H., 7, 114, 123 Maitland, F.W., 114, 123, 124, 130, 132, 271, 273

Malcolm, N., 87 Manage conflict, 6, 33, 34, 229 Managerialism, 7, 10, 125, 211 Mandeville, B., 70 Mao, T., 276 Marcoux, A., viii Market, 23, 41, 50, 54, 56, 70, 75, 80, 83, 123, 177, 193, 196, 211–214, 226, 228, 232, 240, 245, 266, 273, 276, 277, 279 Marsh, L., 268 Martineau, H., 139 Marx, K., 7, 36, 38, 54, 128, 131, 165, 168, 185, 196, 251, 273 Marxism, 84 McGinn, C., 52 Metaphysics, 11, 30, 56, 67, 81, 143, 152, 171, 173, 189, 199, 212, 229, 237, 244, 257, 266, 269 Mill, J.S., 13, 15, 53, 63, 65, 80–83, 85, 86, 90, 105, 131, 139, 154, 190, 209, 267, 272 Mingardi, A., 157 Minogue, K., 56, 268 Monahan, A.P., 87 Monism, 24 Montesquieu, C.L., 11, 62, 63, 77, 78, 87, 104, 106, 107, 111, 128, 151, 166, 209, 257, 272, 274, 276 Morality, 4, 12, 46, 75, 82, 87, 122, 182, 189, 191, 192, 195, 199, 200, 203, 232, 265, 277 Morality of Law (1964), 188, 191, 192 Moral Pluralism, 43, 46, 48, 51, 74, 190, 202, 212, 246, 252, 267 Muirhead, J.H., 86 N Napoleon, 98, 105, 121 Nardin, T., 56, 269, 274, 277

Index

Narveson, J., 194 Natural law, 3, 11, 13, 14, 20, 39, 65, 79, 102, 103, 116, 118, 120, 121, 130, 142, 162–165, 167, 169, 171, 175, 189, 195, 198, 200, 228, 238, 261, 278 Natural Law and Natural Rights (1980), 284 Natural right, 65, 80, 122, 177, 198, 199, 261 Nazi, 36, 53, 84, 171, 174, 201, 202 Nedzel, N., 50, 127, 232, 273 Neill, E., 234 Neo-liberal, 249, 264 Neurath, O., 38, 54, 169, 196 Newton, I., 11, 26, 28, 56, 68, 72, 73 Nicholson, P.P., 86 Nietzsche, F., 44, 257, 272 Ninth Circuit, 184 Nominalism, 8, 61, 64–67, 70, 72, 86, 108, 109, 128, 237, 259 Norman Conquest, 95, 119 Normans, 107, 109, 111, 238, 262 Normative, 4, 27, 29, 39, 46, 48, 79, 114, 118, 141, 142, 148, 149, 152, 160, 169, 172, 173, 177, 179, 180, 182, 185, 187, 189, 198, 215, 220, 223, 248, 260, 269 Norms, 4, 6, 10, 13, 15, 20, 25, 27–30, 32, 34–37, 39–41, 43, 46, 48, 49, 53, 54, 66, 69, 71, 74, 75, 77, 98, 103, 108, 113, 114, 116, 117, 122, 140, 141, 145, 148, 155, 160, 165, 168–181, 185–187, 189, 191, 195, 200, 210, 214–216, 219, 222–225, 227, 228, 233, 235, 254, 260, 262, 263 Nozick, R., 194, 199, 277 nullum crimen sine lege, 155

  293

O Oakeshott, M., 1, 5–11, 13–16, 19, 21–23, 25, 27, 28, 32, 34, 35, 37–39, 42–48, 50–53, 55, 56, 61, 64, 67, 71, 72, 75, 77–81, 83–91, 97, 110, 111, 114, 118, 120, 123, 125–127, 129–132, 145, 148, 150, 154–156, 160– 163, 165, 166, 169, 179, 181, 184, 187–189, 192–194, 196, 197, 200, 201, 203, 207, 208, 211–214, 219, 221–224, 227– 229, 231–236, 240, 243–245, 248–250, 252–260, 262–280 Ockham, W., 8, 63–66, 78, 82, 86, 87, 109, 128, 132, 155, 237 On History and Other Essays “On the Rule of Law” (1983), 56, 273 On Human Conduct (1975), 86, 132, 213, 250, 255, 258, 269, 270, 273 O’Sullivan, L., 91, 126, 268, 270 Oxford English Dictionary, 145 P Padoa-Schioppa, A., 126, 154 Pandectists, 97, 103, 104 Parliament, 102, 108, 110, 112–115, 117, 124, 129, 139, 140, 152, 154, 256, 279 Pears, D., 52 Pejovich, S., 232 Petition of Right, 115, 146 Philosophes, 2, 7, 11, 15, 16, 36, 38, 51, 125, 128, 168, 209, 251, 257 Philosophical Investigations, 31 Philosophical Jurisprudence, 7, 252, 253, 255, 273, 276 Philosophical therapy, 212, 268 Physiocrats, 276

294  Index Plant, R., 264–266, 279 Pluralism, 46, 128 Pocock, J.G.A., 130 Podoksik, E., 280 Polanyi, M., 32, 45, 49, 50, 78, 83, 90, 193, 268, 269 Political Ideal of the Rule of Law, 84 Political theory, 8, 10, 75, 112, 122, 183, 216, 218, 248 Politics, 4, 6, 9–11, 25, 28, 38, 51, 52, 56, 65, 72, 75, 89, 95, 101, 102, 110, 111, 114, 117, 122, 125–127, 140, 141, 144, 165, 174–176, 182, 189, 192, 195, 208, 214, 217, 218, 220, 223, 224, 244, 248–250, 254–257, 267, 270–272 Pollock, F., 114, 123, 129, 132 Popper, K., 32, 43, 84, 89, 190 Positivism, 2–5, 7, 9–11, 13–15, 20, 27, 28, 32, 35–41, 43, 45, 49, 51–55, 72, 83, 84, 103, 114, 121, 122, 125, 149, 156, 159, 162, 164–168, 170, 171, 173, 176, 177, 181, 184, 188, 189, 192, 195, 196, 199, 202, 203, 207, 208, 211, 214–217, 223–228, 230, 232, 238, 239, 259, 268, 269, 275, 276, 278 Postema, G.J., 202 Pound, R., 171 Practice, 3, 20–24, 27, 29–36, 39–45, 47–51, 60, 61, 69, 70, 74, 75, 77–79, 84, 95, 97, 101, 107– 110, 115, 117, 118, 120, 138, 140, 143, 144, 162, 163, 165, 169, 172–174, 176, 177, 179, 181, 183, 187–190, 193, 194, 200, 213, 216–218, 220, 222– 224, 226–228, 233, 244–249, 251–253, 261–263, 267–269, 272, 277, 279

Pragmatics, 31, 35, 53, 97, 181, 184, 200, 201 Protestant, 65, 71, 99, 102, 105, 132, 164, 199 Province of Jurisprudence Determined, 121, 122 Q Quesnay, 276 Quine, W.V.O., 41, 53, 55, 184, 195, 196, 201 Quinton, A., 55, 196 R Radin, M., 130 Raeder, L., 90 Randall, J.H., 11 Ranke, L., 271, 273 Rasmussen D., 194 Rationalism, 1, 10, 19, 33, 38, 51, 52, 56, 68, 86, 126, 128, 154, 224, 233, 250, 251, 273, 277 Rationalist, 1, 14, 28, 51, 56, 81, 120, 122, 126, 227, 250, 251, 257, 262, 272, 273 Rawls, J., 2, 6, 8, 9, 32, 35, 37, 51, 55, 104, 145, 159, 169, 173, 180, 182, 185, 186, 196, 199– 201, 208, 215, 216, 219, 221, 223, 224, 227, 230, 233–235, 252, 258–260, 267, 277, 279 Raz, J., 2, 6, 8, 32, 35, 37, 42, 43, 55, 104, 141, 145, 156, 180, 182–184, 186, 188, 191, 192, 196, 200–203, 222, 223, 234, 254, 267, 277, 280 Realism, 3, 20, 24, 27, 30, 64, 97, 159, 194, 212, 237, 239, 254 Rechtsstaat, 151, 156, 173, 174, 208, 210, 225, 230, 238, 259

Index

Reichenbach, H., 38, 54, 169, 196 Reid, J.P., 130, 131 Reynolds, N.B., 50 Rights, 10, 38, 47, 76, 79, 101, 104, 115, 117–119, 124, 129, 143, 144, 146, 147, 150–152, 154, 162, 168, 175, 180, 183, 187, 191, 198, 202, 217–219, 256, 257, 261, 277 negative, 66, 79, 118, 143, 147, 155, 177, 198, 202 positive, 35, 38, 155, 169, 199, 200, 219, 265 Road to Serfdom (1944), 55, 56, 84, 160, 196, 201, 214, 230, 239 Roman Law, 97, 98, 100, 102–104, 109, 124, 126, 130, 156, 163, 165, 194, 235, 262 Rorty, R., 54, 195, 247, 269 Rousseau, J.J., 7, 11, 38, 70, 102, 104, 168, 173, 174, 208, 219, 221, 222, 264, 276, 279 Rule, 1, 6, 9, 15, 19, 21, 22, 24, 30, 34–36, 42, 44, 62, 65, 67, 68, 70, 72, 83, 102–104, 110, 112–114, 116, 117, 123, 124, 129, 161, 163, 175, 176, 178, 179, 181, 182, 190, 191, 193, 194, 199, 213, 214, 216, 219, 220, 227, 235, 236, 243, 245, 246, 249, 258, 259, 274 rule thru law, 5–10, 16, 97, 114, 141, 145, 150, 151, 153, 161, 174, 180, 182, 183, 188, 191, 219, 223, 228, 230, 240, 249, 255, 267, 274, 277 ‘rule of law’, 1–11, 13, 15, 16, 19, 21, 22, 30, 32, 35–38, 41–43, 46–51, 55, 56, 59, 62, 63, 67–69, 72, 75–81, 83, 86, 87, 97, 102, 105–107, 110, 112,

  295

114–116, 118, 120, 123, 132, 137, 138, 140–156, 159–163, 174, 175, 177, 179, 180, 182–184, 186–188, 191–193, 196, 197, 200–203, 207–210, 214, 215, 219, 220, 222–228, 230–232, 234, 236–240, 243, 244, 249, 251, 252, 255–262, 264–267, 274, 276–280 Runciman, D., 132 Rundle, K., 203 Russell, B., 197 Rutherford, S., 118 Ryan, A., 87 Ryle, G., 32, 268, 269 S Sahotra, S., 54, 195 Saint-Simon, C.H., 53 Savigny, F.C., 97, 123, 132, 156, 165, 194 Scattola, M., 127 Scepticism, 86, 178, 250, 275, 278 Schmidtz, D., 194 Schmitt, C., 36, 51, 165, 174–176, 228, 267 Scientism, 1, 2, 5–9, 13, 14, 19–22, 24, 25, 27–31, 33, 36–38, 40–43, 45, 50, 51, 53–56, 72, 73, 90, 125, 166, 167, 171, 181, 184, 186–188, 194–196, 201, 207, 211, 215, 221, 223, 227, 228, 232, 234, 239, 251, 268, 269 Scotland, 107 Scottish Enlightenment, 69, 70 Scruton, R., 132 Sebok, A.J., 13, 14 Sedley, S., 234 Sesardic, N., 55, 202, 234 Sidgwick, H., 123

296  Index Siedentop, L., 87, 128 Skepticism, 28, 66, 74, 78, 89, 126, 194, 244, 249, 250, 256, 257, 270 Skinner, Q., 89 Slobodian, Q., 240 Smith, A., 56, 70, 71, 75, 76, 80, 90, 104, 119, 270, 276 Smith, T., 256 Socialism, 4, 36, 37, 40–42, 53–55, 121, 126, 139, 154, 160, 162, 165, 170, 174–178, 183, 186, 187, 190, 196, 201, 209, 211, 220, 221, 224, 229, 231, 235, 240, 250, 266, 270, 277, 278 Socialist, 12, 20, 54, 56, 121, 139, 160, 164, 195, 196, 209, 212, 214, 221, 225, 229, 230, 234, 266 Social justice, 35, 190, 210, 212, 224, 230 Social science, 2, 3, 6, 12, 16, 29, 33, 38, 51, 121, 164–168, 173, 179, 185, 189, 197, 199, 202, 211, 240, 247, 251, 255, 263 Social technology, 2, 7, 12, 14, 16, 20, 22, 38, 70, 80, 90, 103, 120, 121, 125, 164, 168, 207, 220, 249 Sovereign Virtue: The Theory and Practice of Equality (2000), 284 Spontaneous order (SO), 7, 8, 10, 11, 19–21, 24, 25, 29, 34, 43–45, 47, 49, 50, 61, 64, 66, 67, 69–71, 74, 75, 78–80, 83, 84, 88, 89, 95, 110, 114, 118–120, 122, 124, 146, 153, 155, 156, 160, 189, 194, 202, 207, 210, 212–214, 222, 224, 227–229, 235, 237, 250, 269 Stanford Encyclopedia of Philosophy, 3, 53, 195 States General of France, 256

Sternberg, E., 194 Stewart, I., 197 Stoner, J., 131 T Tacitus, 62, 63, 77, 87, 106, 108, 123, 128, 162 Taking Rights Seriously (1977), 131, 216, 217 Tamanaha, B., 11, 16, 156, 234 Technological project, 74, 75, 87, 240, 270, 279 Teleology, 24–27, 39, 45, 65, 66, 70, 71, 80, 97, 103, 104, 127, 214, 218, 230, 266, 269, 271, 277 Ten Commandments, 43, 190 Theory of Justice (1971), 230, 233 Time immemorial, 62, 69, 95, 105, 106, 109, 114, 120 Tocqueville, A., 83, 104, 132, 154, 166, 190, 257, 267 Tonnies, F., 7, 270 Tory, 76–78, 139 Tractatus, 31, 52, 228 Tradition, 1, 4, 5, 10, 12, 19, 25, 26, 28, 36, 39, 41, 43, 46, 53–56, 59, 61, 62, 66, 69, 75–77, 85– 87, 96–98, 100, 101, 105–107, 111, 113, 118–120, 122, 129, 138–141, 147, 149–151, 153, 155, 160, 161, 163, 165, 166, 169, 173, 177, 180, 183, 184, 186, 188, 189, 192, 195–197, 200, 201, 207, 209–211, 213, 219, 223, 224, 227, 228, 231, 232, 236–239, 245, 248, 250, 255, 256, 271, 275, 277, 279 Transcendent, 22, 27, 32–34, 36, 45–49, 51, 64, 72, 85, 88, 90, 97, 98, 164, 171 Tseng, R., 194

Index

Turgot, 11, 51, 90, 121, 276 Turner, S., 128 U Ulpian, 97, 149 Unger, R.M., 32, 220, 221, 234 Utilitarian, 27, 81, 120–122, 131, 164, 199, 222, 227, 273, 277 V Vienna, 2, 13, 38, 53, 83, 84, 169, 171, 195, 207 University of Vienna, 84, 170, 207 Vienna Circle, 36–38, 53, 54, 167–169, 176, 195 Vinogradoff, P., 123, 132 Voegelin, E., 50, 65, 84, 171–173, 197, 231, 271 Voltaire, F-M.A., 11, 78, 128, 131, 151

  297

W Walker, G., 153 Weber, M., 128, 211, 226, 232, 275 Wedberg, A., 54, 196 Welfare state, 99, 144, 279 Whig, 77, 78, 119, 132, 148 Whitehead, A.N., 197 Wiener, M.J., 154 Wilks, M., 126 Winston, K., 193, 203 Wittgenstein, L., 27, 30–33, 35, 41, 45, 52, 53, 72, 83, 84, 88, 129, 169, 177, 178, 181, 184, 188, 200, 201, 212, 228, 245–247, 261, 268, 269, 272 World Bank, 22, 251 Z Zywicki, T., 157, 232