Freedom and the Law

3. Freedom and the Rule of Law

Law_051-100.indd 8 10/27/09 8:05 AM 3 FREEDOM AND THE RULE OF LAW I,is not easy to state what English-speaking people mean by the expression "the rule of law." The meaning of these words has changed in the last seventy or even fifty years, and the phrase itself has acquired rather an obsolete sound in England as well as in America. Nevertheless, it once corresponded to an idea that (as Professor H ayek pointed out in his first lecture on freedom and the rule of law given at the National Bank of Egypt in 1955) "had fully conquered the minds if not the practice of all the Western nations," so that "few people doubted that it was destined soon to rule the world."1 The complete story of this change cannot be written yet, since the process is still going on. Moreover, it is a story to a certain extent complicated, fragmentary, tedious, and, above all, hidden from people who read only newspapers, magazines, or fiction and who have no special taste for legal matters or for such technicalities as, say, the delegation of judicative authority and legislative powers. But it is a story that concerns all the countries of the West that had and still have a share not only in the juridical ideal denoted by the expression "the rule of law," but also in the political ideal designated by the word "freedom." 1 F. A. Hayek, The Political Ideal ofthe Rule ofLaw (Cairo: Fiftieth Anniversary Commemoration Lectures, National Bank of Egypt, 1955), p. 2. Virtually the entire substance of this book has been republished in The Constitution of Liberty, by the same author. 58 Law_051-100.indd 9 10/27/09 8:05 AM FREEDOM AND THE RULE OF LAW 59 I would not go so far as to say, as Professor Hayek does in the above-mentioned lecture, that "it is in the technical discussion concerning administrative law that the fate of our liberty is being decided." I would prefer to say that this fate is also being decided in many other places-in parliaments, on the streets, in the homes, and, in the last analysis, in the minds of menial workers and of well-educated men like scientists and university professors . I agree with Professor Hayek that we are confronted in this respect with a sort of silent revolution. But I would not say with him or with Professor Ripert of France that this is a revolutionnay , a coup d'etat-promoted only, or even chiefly, by technicians like lawyers or the officials of ministries or of departments of state. In other words, the continuous and creeping change in the meaning of "the rule of law" is not the result of a "managerial" revolution, to use Burnham's apt expression. It is a much broader phenomenon connected with many events and situations the real features and significance of which are not easily ascertainable and to which historians refer by such phrases as "the general trend of our times." The process by which the word "freedom" began to assume several different and incompatible meanings in the last hundred years involved, as we have seen, a semantic confusion. Another semantic confusion, less obvious, but no less important, is revealing itself to those patient enough to study the silent revolution in the use of the expression "the rule of law." Continental European scholars, notwithstanding their wisdom, their learning, and their admiration for the British political system , from the times of Montesquieu and Voltaire have not been able to understand the proper meaning of the British constitution . Montesquieu is probably the most famous of those who are open to this criticism, particularly as far as his celebrated interpretation of the division of powers in England is concerned, in spite of the fact that his interpretation (many people would say his misinterpretation) had, in its turn, an enormous influence in the English-speaking countries themselves. Eminent English scholars, in their turn, suffered a similar criticism because of their interpretations of European Continental constitutions. The most famous of these scholars is probably Dicey, whose misunderstandings of the French droit administratif have been consid- Law_051-100.indd 10 10/27/09 8:05 AM 60 FREEDOM AND THE LAW ered by another well-known English scholar, Sir Carleton Kemp Allen, a "fundamental mistake" and one of the main reasons why the rule of law has...