In the Fourth John Bonython Lecture, Shirley Letwin analyses the way in which the rule of law sustains individual liberty and a free society. Because the law provides a framework of rules for general cases, activists of all political persuasions argue for a greater role for judges in interpreting the law to allow each case to be decided on its merits.
Although this might seem particularly attractive to those who favour a market economy, according to Shirley Letwin ‘We should stick to the letter of the law for the same reason that we prefer a market economy’. Dr Letwin argues that in the long run, respect for the rule of law is the only way to accommodate human individuality and our best guarantee against tyrannical and arbitrary government. Although legal procedures can be slow and awkward, this inconvenience represents the market price for liberty’ and as such is a price that we must pay without hesitation.
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As this is the fourth lecture in the series, the John Bonython lectures have a well-established tradition. The essence of tradition is that it constantly changes while remaining continuous. The market economy addresses themselves to different aspects of a market economy and have concentrated on the truth that some of our most prized public benefits are the unintended consequences of private actions designed to satisfy private interests. They were speaking about the virtues of what Hayek calls ‘spontaneous order’, which are now coming to be recognised even behind the Iron Curtain. But as always, conversion to truth introduces new dangers. In the West, the lesson about unintended consequences has been learnt too well. We tend to forget the other side of the coin.
I should therefore like to consider a different aspect of a free society as an institution that deliberately and systematically tries to restrict the unintended consequences of human actions. I would like to remind you of why that institution is essential for liberty. I mean the rule of law.
No one has yet denounced the rule of law in the name of liberty. But a dangerous confusion about the relation between the law and liberty grows worse every day. That confusion appears in connection with two questions: Why judges let established law interfere with a just decision? Why should the citizen obey a law that he considers unjust? The issue in both questions is the same — whether the law should be respected. Such respect is now described pejoratively as ‘legalism’ and dismissed as an old man’s superstition or a reactionary conspiracy.
One of the ironies of our time is that defenders of liberty have joined forces with collectivists to condemn the respect for the letter of the law. Earlier this year the New York Times rejoiced that the ‘newest judicial activists come from the Right’. So distinguished a free marketeer and professor of law as Richard Epstein of the University of Chicago wants the courts to use the Constitution’s protection of property and economic rights as a power to strike down state regulation of economic activities. In Britain, when Lord Denning turned out highly eccentric decisions, cutting down the special privileges of trade unions (such as some now proposed to bestow upon Australian unions), those who appreciated the evil of those privileges refused to worry about Denning’s high-handed way with the law.
The dispute between activists and legalists is often described as a division between humane people who care about others and dried heartless prigs. It must be admitted that, melodramatic though it is, this description contains a grain of truth. For all rules, however admirable in form and content, have a serious drawback. Because a rule deals in general categories, it is like a rigid piece of wood used to measure an uneven surface — it necessarily omits to measure the bumps. This shortcoming is somewhat mitigated by judicial interpretation of rules for particular circumstances. If, however, the interpretation is strict, it does not attempt to exclude all undesirable consequences and thus judge might therefore appear to be heartless. At the same time, even strict interpretations change the law insofar as they add a new meaning to a rule. All this, added to the disagreements that arise among judges about what constitutes a correct interpretation, lends credence to the argument that sticking to the letter of the law is a mere preference that prevents justice from being done. And this has made some reasonable to conclude that the rule book should be abandoned and that judges should decide what is ‘just’ regardless of statute and precedent.
That proposal is especially beguiling to admirers of a market economy. Since they believe that spontaneous order is the best way to regulate economic activities, they find it inconsistent to venerate legal order. Would it not be better if judges decided each case as it arises just as we do in market transactions? The long answer is no. We should stick to the letter of the law for the same reason that we prefer a market economy. But to see why, we have to go back to fundamentals, to consider what we mean by liberty. And to be clear about liberty we have to have a precise understanding of human individuality.
Nowadays, individuality is equated with a readiness to wear green hair, be stinking dirty and break every rule. In other words, individuality is used as a synonym for man’s original virtue, disobedience. But if we take this view, then we shall have to concede that cats are superior to human beings. For it is certainly true that cats sit and do their own thing, as puppets and a kitten will cuddle, purr and curl up instinctively for assistance, the puppy will grovel in abject submission, the kitten will brace its tiny body for a frantic resistance. That distinction may be worthy of a cat, but it is not enough for man. Human individuality is something more than an arched back. It is not a recent innovation. It was not discovered in the Renaissance. Even in ancient Greece, Pericles paid tribute to the individuality of his fellow Athenians. Individuality is the quality assumed in the Christian idea of every human being an immortal soul, who has an answer for what he makes of himself. And this regard for individuality, which distinguishes European civilisation, means recognising in each human being an independent personality, an end in himself who may not be treated merely as a means.
Hardly anyone denies that every man should be treated as an end in himself, but few appreciate all the implications. We forget, for instance, that each of us possesses individuality because we are not inert, passive vessels of whatever happens to fall upon us. Our rationality gives us the power to choose how to understand what we see, hear, and feel. And in doing so, we invent an infinite variety of interpretations and responses. We invent not only things that are useful, but also the uses to be served; not only scientific theories, but also different attitudes to science, as well as activities wholly unlike science — poetry, history, music, grammar, painting, philosophy, mathematics and lectures. This creative power explains why the human world is full of so many things. Our inventiveness enables us even to deny that we have such power, as those pied pipers, Marx and Freud, have persuaded many to believe. Some try to repress their own individuality by following a leader or entering a commune and some attempt to obliterate individuality in others by force. But all of this only serves to acknowledge that each human being has the capacity to think and act as he chooses. And it follows that when two people disagree, it is not necessarily because one of them is mistaken or too lazy or stupid to find the correct answer. People disagree because they are rational.
Of course, religious faith may give us a conviction that God has communicated to us an indisputable truth. But faith is a personal commitment, my faith cannot oblige others to adopt the same conviction. And even those who share the same faith commonly deny one another the precise meaning of God’s communication. In short, the individuality of human beings gives them a talent for disagreeing. And that, surprising as it may seem, is what makes it difficult to give individuality its due. While we prefer not to melt into one lump of uniformity, we also want to live and work together in peace. But we cannot do so unless we manage to agree on some matters. And that gives rise to the individualist’s dilemma: How can we secure the agreement needed for civil peace without destroying diversity?
The market, where people exchange goods and services by mutual agreement, might seem to be an obvious solution. A market economy, rightly valued by lovers of liberty because it is both orderly and open to diversity. But a market economy does not operate in a vacuum, it rests on the rule of law.
It takes a Marxist to spell out the peculiar contribution of law to a market economy. The man who ran the juridical establishment in Soviet Russia in the twenties and early thirties, Evgeny Pashukanis, formulated the only plausible version of a Marxist theory of law, according to which ‘bourgeois society’ rests on a system of law because otherwise commercial contracts would be impossible. For under the rule of law, the state is an impersonal apparatus with no purpose of its own and can therefore provide an objective standard to govern the relations of people who enter into a variety of contracts and exchanges. By enforcing stable rules, the state enables people to make arrangements on which they can rely.
What distinguishes people ruled by law, each is pursuing different projects of his own choosing. And Pashukanis contrasted the subjects of law with the subjects of what he called ‘technical regulation’, such as the rules for running a railroad or factory. The subjects of technical regulation are not independent because they are all parts of a single enterprise being directed towards the achievement of the same objective. As the virtue of communism is the elimination of all independent projects, and the organisation of the whole community into one unified, all-embracing enterprise, Pashukanis concluded that communism needs only technical regulation and has no place for law. Unfortunately, his doctrine must have pleased otherwise, and so Pashukanis’s troubles were brought to an end.
Pashukanis recognised what many opponents of Marxism have yet to realise, that the genius of law is its ability to secure agreement without extinguishing diversity. Because legal relationships rest on an agreement not to do anything in particular but to observe certain conditions on whatever it is that we do. That is compatible with a great variety of activities. That law does not impose any particular project is assured also by the fact that laws, being standing rules, are made when the circumstances in which they will be invoked are unknown. The impartiality of the law is therefore a function more of its form than its content. Under the rule of law people can remain independent and different things while living and working together because the law translates substantive disagreement into procedural agreement.
The purest example of this procedural character is contract law, which designates the conditions to be observed by anyone wanting to make an agreement that can be defended at law, but obliges no one ever to make a contract. This is not true of all so-called laws. Tax laws, for instance, do command specific performances, so do laws ordering people not to do this or that. Laws of this kind can never be altogether avoided. But in modern times, thanks to the growth of collective action projects, such technical regulations have proliferated and pervaded the whole legal system. The result of the legal system is distorted by this sort of measure, the rule of law nevertheless persists as long as all acts of government are required to conform to the established legal procedures and genuine rules of law provide the foundation.
Since the more diverse there is in a community, the more likely are disputes about what the rules are or require, it has, since ancient times, been considered essential to the character of law that it should be recorded in some public fashion. A recorded rule provides something obviously fixed to which different people can refer at different times. And this is no less true of English common law than of the Napoleonic Code, for the common law is not, as we are often told, ‘written law’. Its task is to be found in the many volumes that record the decisions of judges since the Middle Ages.
But the law does more than record the rules that judges have recognised. It also provides a method for resolving disputes about what those rules mean. That method depends upon courts which hear arguments from the parties concerned and decide the matter according to established procedures and previously recognised rules. In this way the law makes it possible to settle disputes without resort to violence.
The importance of this achievement is often overlooked. When people argue that judges should simply decide what is ‘just’ in each case, they ignore the fact that justice cannot be achieved unless there exists some common framework within which disagreements may be resolved. If every dispute were decided according to the personal sense of justice of whoever happened to be judging, there would be no certainty about how disputes would be resolved. The result would be insecurity rather than justice.
For this reason the rule of law requires that judges respect established rules even when those rules produce a result that appears harsh in a particular case. It is precisely because the law is general that it can secure fairness over time. By applying the same rules to everyone, the law protects individuals from arbitrary decisions and enables people to plan their affairs with confidence.
This discipline of applying general rules may sometimes seem rigid. Yet it is the price we pay for living in a society where individuals pursue different aims and hold different views about what is right or desirable. The rule of law provides the conditions under which such diversity can coexist peacefully.
If we abandon respect for the law in favour of discretionary decisions about what appears just in each individual case, we undermine the very framework that allows liberty to flourish. For liberty depends not only on freedom from coercion but also on the existence of stable and predictable rules governing our interactions with others.
In modern discussions it is often said that the rule of law is too formal and that it stands in the way of achieving justice in particular cases. Yet this criticism misunderstands the purpose of law. The rule of law does not claim to eliminate all hardship or unfairness in individual cases. Its purpose is to provide a framework within which people can pursue their own aims without fear of arbitrary interference.
If judges abandon established rules in order to achieve what they regard as justice in a particular case, they inevitably introduce uncertainty into the legal system. Citizens would no longer know in advance how the law will be applied. Instead of providing security, the law would become a source of unpredictability.
Such unpredictability is incompatible with liberty. A free society requires that individuals be able to rely on stable and publicly known rules when making decisions about their lives. Without this stability, people cannot confidently enter into agreements, invest resources, or plan for the future.
This is why the rule of law demands that judges exercise restraint. Their task is not to pursue their own vision of justice but to apply the law as it stands. When judges respect this discipline, they preserve the conditions that allow individuals with diverse aims and values to coexist peacefully under a common legal framework.
