The Roots of Freedom and

the Rule of Law

Dr. Karen Horn
Institut der deutschen Wirtschaft
Kln
 Questions
Where do freedom and the rule of law come
from?
How did these concepts evolve and how did they
get to be instituted and protected?
What is freedom, what is the rule of law, exactly?
What do these concepts encompass? How do
they relate?
Preliminary: Does cultural evolution necessarily
bring about freedom and the rule of law?
 Friedrich August von Hayek
Friedrich August von Hayek
(1899-1992) was an eminent
Austrian economist and social
philosopher known particularly
for his defence of classical
liberalism and free markets
against socialist and other
collectivist thought. He taught
at the LSE, in Chicago, in
Freiburg and in Salzburg. He
shared the 1974 Nobel Prize in
economics with Gunnar
Myrdal.
 Cultural evolution
and spontaneous order
a process of winnowing and sifting, directed by
the differential advantages gained by groups
from practices adopted for some unknown and
perhaps purely accidental reasons (Hayek, The
Political Order of A Free People, Vol 3. of LLL,
Chicago University Press, 1979, p.155).
the results of human action but not of human
design (Hayek, in: New Studies in Philosophy,
Politics, Economics, and the History of Ideas,
London, Routledge, 1978, p. 96-105).
 Cultural evolution
and spontaneous order

The extended order resulted not from human design or

intention but spontaneously: it arose from unintentionally
conforming to certain traditional and largely moral
practices, many of which men tend to dislike, whose
significance they usually fail to understand, whose
validity they cannot prove, and which have nonetheless
fairly rapidly spread by means of an evolutionary
selectionthe comparative increase of population and
wealthof those groups that happened to follow them.
(Hayek, The Fatal Conceit, in his Collected Works, Vol.
1, Chicago University Press 1988, p. 6)
 The long march towards freedom
and the rule of law
the invention of democracy and the preparation for the rule of law in
Ancient Greece,
the development of a true rule of law and a whole body of written
law by the Romans, together with a more elaborated notion of
individualism and the creation of private property,
the rediscovery of Ancient Greece and Rome in the course of the so-
called Papal Revolution,
the idea of self-ownership and the importance of property, as
developed by Locke,
the idea of a social contract, invented by Hobbes and taken up later
by Rousseau and Rawls,
the limitation of government through the separation of power, as
developed by Montesquieu,
the idea of human perfectibility, as elaborated by Humboldt,
the idea of modern liberty, as developed by Constant,
the insights into the workings of self-regulating systems, especially
markets, as developed by Hume, Smith, and Hayek,
the emergence of liberal constitutions
The invention of democracy and the
preparation for the rule of law in
Ancient Greece
 Friedrich Schiller
Friedrich Schiller (1759
1805) is not only one of
Germanys best-known
poets and playwrights
and a contemporary and
close friend of Goethe.
He was also a historian
and a philosopher, an
outstanding intellectual, a
foremost classical liberal,
a renegade and a rebel.
 Lycurgus and Solon

The oligarchic government, associated with Lycurgus

(ca. 800 BC) in Sparta, reduces man to a beast, denying
individual human creativity.
Solons (d. 559 BC) republican government in Athens
however is premised on a conception of man raised to
the level of participation in the divine.
 The invention of democracy
On the new constitution of Athens
Solon, also called the law-giver, undertook the great
work of giving the republic a new constitution The first
three classes could assume public offices; those from
the last class were excluded from public office, but had
one vote in the national assembly as all the others, and,
for that reason alone, had a large share in the
government. All major issues were brought before the
national assembly, called the Ecclesia, and also decided
by this assembly: the election of magistrates,
assignments to offices, important affairs in law, financial
affairs, war, and peace In this way, the constitution of
Athens was transformed into a complete democracy; in
the strict sense, the people was sovereign, and it ruled
not merely through representatives, but in its own person
and by itself. (Schiller)
 Preparation for the Rule of Law

In Ancient Greece, laws were

finally put in writing and so
they became a document that
anybody could look at, read,
check, verify, and refer to.
This is also where the
concepts and institutions of
equality before the law and
generality first came into
being.
 The Rule of Law
The core of rule of law is
an autonomous legal
order, be it a higher,
transcendental idea of
law or a constitution. It
limits government
arbitrariness and power
abuse.
Second, the rule of law
means equality before
law. We are free because we
live under civil laws.
Third, rule of law implies
procedural and formal (Montesquieu)
justice.
 The Roman contribution
The development of a real
rule of law
with a limitation of the
governments ability to
change the law,
a separation of powers,
and a whole body of written
legal rules that were more
found than created,
together with a more
elaborated notion of
individualism
and the institutional creation
of private property.
 Cicero on natural law
according to the Stoics
True law is right reason in agreement with nature; it
is of universal application, unchanging and
everlasting; it summons to duty by its commands,
and averts from wrongdoing by its prohibitions It is
a sin to try to alter this law, nor is it allowable to
attempt to repeal any part of it, and it is impossible to
abolish it entirely. We cannot be freed from its
obligations by senate or people, and we need not
look outside ourselves for an expounder or
interpreter of it. And there will not be different laws at
Rome and at Athens, or different laws now and in the
future, but one eternal and unchangeable law will be
valid for all nations and all times, and there will be
one master and ruler, that is, God, over us all, for he
is the author of this law, its promulgator, and its
enforcing judge. Whoever is disobedient is fleeing
from himself and denying his human nature
(Cicero, De Republica, 3.22).
 Corpus Juris Civilis
A vast and differentiated body of
law that had grown over many
centuries, a body of law that
most western countries still trace
their civil law back to, with all the
notions and legal concepts that
we still use today, such as the
law of persons, with figures such
as inheritance, adoption, and
tutelage; the law of things, with
property low, ownership law,
usufruct, co-ownership, and rent; Justinian (482 565) was
the law of obligations, with Roman Emperor from 527
mortgages, mandates, until his death. Under his
purchase, and sale etc. reign, the Corpus Juris
Civilis saw the light.
 The Papal Revolution
In 1075, Pope St. Gregory VII
declared papal supremacy
over the church,
and also declared the church's
independence from secular
control.
He asserted the pope's powers
to depose emperors.
Thanks to his efforts, the
Roman law was rediscovered
and reinstituted,
the University was created,
reason was rehabilitated,
and dynamism sprang up.
 The idea of a social contract

Thomas John
Hobbes Locke

Jean-Jacques
Rousseau John
Rawls
 Leviathan
or the Hobbesian nightmare
Thomas Hobbes (1588 - 1679) was an
English philosopher, whose famous 1651
book Leviathan established the foundation
for most of Western political philosophy.
In the state of nature, each person would have
a right, or license, to everything in the world.
This inevitably leads to conflict, a war of all
against all, and thus lives that are solitary,
poor, nasty, brutish, and short.
To escape this state of war, all individuals in
the state of nature engage in a social contract
according to which they all cede their natural
rights for the sake of protection.
 John Locke
John Locke (1632-1704) was an
English philosophr of the natural rights
tradition. Locke is considered the first of
the British Empiricists, but is equally
important to social contract theory. His
ideas had enormous influence on the
development of epistemology and
political philosophy, and he is widely
regarded as one of the most influential
Enlightenment thinkers and contributors
to liberal theory. Locke is also known
for his writings on toleration in which he
came up with the right to freedom of
conscience and religion.
 Locke on the separation of powers
The Legislative Power is that which has a right to direct how the Force of
the Commonwealth shall be imploy'd for preserving the Community and the
Members of it. But because those Laws which are constantly to be
Executed, and whose force is always to continue, may be made in a little
time; therefore there is no need, that the Legislative should be always in
being, not having always business to do. And because it may be too great a
temptation to humane frailty apt to grasp at Power, for the same Persons
who have the Power of making Laws, to have also in their hands the power
to execute them, whereby they may exempt themselves from Obedience to
the Laws they make, and suit the Law, both in its making and execution, to
their own private advantage, and thereby come to have a distinct interest
from the rest of the Community, contrary to the end of Society and
Government: Therefore in well order'd Commonwealths, where the good of
the whole is so considered, as it ought, the Legislative Power is put into the
hands of divers Persons who duly Assembled, have by themselves, or
jointly with others, a Power to make Laws, which when they have done,
being separated again, they are themselves subject to the Laws, they have
made; which is a new and near tie upon them, to take care, that they make
them for the publick good. (Second Treatise, 143)
 Locke on property and the law
every man has a property in his own person. (Second
Treatise)
The end of the law is, not to abolish or restrain, but to
preserve and enlarge freedom. For in all the states of
created beings capable of laws, where there is no law
the" is no freedom. For liberty is to be free from
restraint and violence from others; which cannot be
where there is no law: and is not, as we are told,
a liberty for every man to do what he lists. (For who
could be free when every other man's humour might
domineer over him?) But 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 he the subject of the
arbitrary will of another, but freely follow his own.
(Second Treatise)
 Montesquieu
Charles-Louis de Secondat, baron de La
Brde et de Montesquieu (1689-1755) was
an important French political thinker in the
Enlightenment. He is famous for his
articulation of the theory of separation of
powers in his book De l'Esprit des Lois
(The Spirit of the Laws).
Montesquieu says that government should
be set up so that no man need be afraid of
another. He describes a division of
political power among ann executive, a
legislature, and a judiciary.
His core sentence is: There would be an
end of every thing were the same man, or
the same body, whether of the nobles or of
the people to exercise those three powers
that of enacting laws, that of executing the
public resolutions, and that of judging the
crimes or differences of individuals.
 Wilhelm von Humboldt
Friedrich Wilhelm Christian Karl Ferdinand
Freiherr von Humboldt (1767-1835) was a
Prussian government official, minister,
diplomat, philosopher, reformer, founder of
the Humboldt University in Berlin, a close
friend of Goethe and especially of Schiller,
the elder brother of Alexander von
Humboldt, an explorer, geographer and
natural scientist.
He published On the Limits of State Action in
1819, one of the boldest defences of the
liberties during the Enlightenment. It
anticipated Mills essay On Liberty by which
von Humboldt's ideas became known in the
English-speaking world. He describes the
necessary conditions without which the state
must not be allowed to limit the action of
individuals.
 Humboldt on liberty
Reason cannot desire for man any other condition than
that in which each individual not only enjoys the most
absolute freedom of developing himself by his own
energies, in his perfect individuality, but in which external
nature itself is left unfashioned by any human agency,
but only receives the impress given to it by each
individual by himself and of his own free will, according
to the measure of his wants and instincts, and restricted
only by the limits of his powers and his rights.
the ultimate task of our existence is to give the fullest
possible content to the concept of humanity in our own
person [...] through the impact of actions in our own
lives.
 Benjamin Constant
Henri Benjamin Constant de Rebecque
(1767 1830) was a prolific political
philosopher, novelist, and politician
and a pretty tortured soul.
Liberty is the most important human
value; it consists both of active political
participation and inviolable individual
freedom.
All legal rules must be universal,
general and non-arbitrary; courts must
be independent and bureaucracy has to
be neutral.
All power needs to be limited; neither a
sovereign ruler nor the people as a
whole are entitled to violate the rights of
the individual.
 Insights into the workings
of self-regulating systems,
especially markets

David Hume Adam Smith Friedrich A. von Hayek

 Adam Smith
In almost every other race of animals each individual, when it is
grown up to maturity, is entirely independent, and in its natural state
has occasion for the assistance of no other living creature. But man
has almost constant occasion for the help of his brethren, and it is in
vain for him to expect it from their benevolence only. He will be more
likely to prevail if he can interest their self-love in his favour, and
show them that it is for their own advantage to do for him what he
requires of them. Whoever offers to another a bargain of any kind,
proposes to do this. Give me that which I want, and you shall have
this which you want, is the meaning of every such offer; and it is in
this manner that we obtain from one another the far greater part of
those good offices which we stand in need of. It is not from the
benevolence of the butcher, the brewer, or the baker, that we
expect our dinner, but from their regard to their own interest.
We address ourselves, not to their humanity but to their self-love,
and never talk to them of our own necessities but of their
advantages. Nobody but a beggar chuses to depend chiefly upon
the benevolence of his fellow-citizens. (Wealth of Nations)
 Hayek
the economic problem of society is thus not merely a problem of
how to allocate given resources if given is taken to mean given to
a single mind which deliberately solves the problem set by these
data. It is rather a problem of how to secure the best use of
resources known to any of the members of society, for ends whose
relative importance only these individuals know. Or, to put it briefly, it
is a problem of the utilization of knowledge which is not given to
anyone in its totality.
The price system is just one of those formations which man has
learned to use after he had stumbled on it without understanding
it. Through it not only a division of labour but also a coordinated
utilization of resources based on an equally divided knowledge has
become possible.
Nobody has yet succeeded in designing an alternative system in
which certain features of this can be preserved such as particularly
the extent to which the individual can choose his pursuits and
consequently freely use his own knowledge and skill.
 The emergence
of
liberal constitutions
individual liberty,
personal dignity,
the safeguard of private property,
equality before the law,
freedom of the press,
freedom of assembly,
active and passive political freedom
Freedom and the rule of law