Libertarianism and the Common Law (original) (raw)
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Reason, Freedom, and the Rule of Law: Their Significance in the Natural Law Tradition
The American Journal of Jurisprudence, 2001
The idea of law and the ideal of the rule of law are central to the natural law tradition of thought about public (or "political") order.' St. Thomas Aquinas went so far as to declare that "it belongs to the very notion of a people {ad rationem populi} that the people's dealings with each other be regulated by just precepts of law." 2 In our own time, Pope John Paul II has forcefully reaffirmed the status of the rule of law as a requirement of fundamental political justice. 3 For all the romantic appeal of "palm tree justice" or "Solomonic judging," and despite the sometimes decidedly unromantic qualities of living by pre-ordained legal rules, the natural law tradition affirms that justice itself requires that people be governed in accordance with the principles of legality. Among the core concerns of legal philosophers in the second half of the twentieth century has been the meaning, content, and moral significance of the rule of law. The renewal of interest in this very ancient question (or set of questions) has to do, above all, I think, with the unprecedented rise and fall of totalitarian regimes. In the aftermath of the defeat of Nazism, legal philosophers of every religious persuasion tested their legal theories by asking, for example, whether the Nazi regime constituted a legal system in any meaningful sense. In the wake of communism's collapse in Europe, legal scholars and others are urgently trying to understand the role of legal procedures and institutions in creating and sustaining decent democratic regimes. It has been in this particular context that Pope John Paul II has had occasion to stress the moral importance of the rule of law. One of the signal achievements of legal philosophy in the twentieth century was Lon L. Fuller's explication of the content of the rule of law. 4 Reflecting on law as a "purposive". McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions, Princeton University. This essay is reprinted with permission from the American Journal of Jurisprudence. 1 The idea of law and the ideal of the rule of law have always been central to the political thought of Christian philosophers and theologians. This idea and ideal were by no means Christian inventions, however. They were articulated and developed in pre-Christian classical and Jewish traditions of thought. The treatment of the subject in the writings of St. Thomas Aquinas is, unsurprisingly, deeply indebted to Plato and, especially, Aristotle, as well as to the Hebrew Bible.
Liberty and Law. Institutional Circumstances of Freedom
2007
My aim in this article is twofold. I will discuss different ways of conceptualising the relation between liberty and law. By ‘law’ I refer throughout to law in the sense of civil law: rules with accompanying sanctions, promulgated by a legislator for the regulation of action in political society. I do not intend to say anything about ‘natural law’, unless I explicitly state otherwise. For the purposes of my argument I will loosely group the positions I discuss under different labels: ‘liberty from the law’, ‘liberty by the law’, and ‘liberty under law’. There is nothing self-serving about these labels; indeed, they may appear simplistic and historically inept. I use them to direct our attention and in order to illustrate my second aim, which is to make a fairly general point that seems to me to fall out of the preceding discussion. That point is that concepts like liberty are institution dependent and that we cannot hope to understand or even talk about what they mean without adhering to that fact. I will argue that even when liberty is understood in terms of the absence of law, the presence of law or the possibility of its presence will have to be assumed in principle in order for its absence to make sense. Freedom from law refers to different kinds of absences, depending on whether the law that is not there is the institution itself or an instance of regulation within an institution that is present.
The Rule of Law and the Separation of Powers, 2017
Click here if your download doesn"t start automatically Freedom and the Rule of Law Freedom and the Rule of Law Freedom and the Rule of Law takes a critical look at the historical beginnings of law in the United States, and how that history has influenced current trends regarding law and freedom. Anthony Peacock has compiled articles that examine the relationship between freedom and the rule of law in America. Although this is a theme that has been a perennial one since America's founding, it is also one of particular importance today, and this book explains how history makes this apparent. The rule of law is fundamental to all liberal constitutional regimes whose political orders recognize the equal natural rights of all, and whose purpose is to protect those natural rights in addition to the general welfare. The rule of law was essential to achieving both of these ends and to reconciling them where necessary. But just how free is America today? It was certainly within the contemplation of the Founders that the federal judiciary would have a significant role in interpreting the Constitution, federal laws, and treaties, but it would be difficult to argue that those who framed and ratified the Constitution contemplated a role for the courts, particularly for the United States Supreme Court, of the magnitude they have today. The writers take the reader far back into history to the very roots of American Law by examining the English common law roots that provided the foundation for the rule of law in America. This book explores these phenomena and other recent developments in American freedom through history. Download Freedom and the Rule of Law ...pdf Read Online Freedom and the Rule of Law ...pdf Online Freedom and the Rule of Law ebook PDF download Freedom and the Rule of Law Doc Freedom and the Rule of Law Mobipocket Freedom and the Rule of Law EPub
The relationship that exists between the law and civil liberties has characterized the development of the same idea of freedom. Whilst in the civil law countries, during the XIX century, the law was considered as the principal means in order to protect the liberties that liberal revolutions had affirmed, in United States the congress was thought as the first menace for individual freedoms. These two approaches illustrate a more general issue: the protection of civil rights needs at the same time two different and potentially contradictory conditions: a) The Legislator must actively contribute and adopt regulations that define the individual circle of liberty; b) The constitutional system has to control the legislator in order to prevent him from passing legislation that curtails individual freedoms. These needs directly impact the drafting of constitutional provisions that protect liberties and lead its evolution through the nineteenth and the twentieth centuries. Tihs essay investigates this topic firstly through an analysis of the main theories that legal scholarship developed during the last two centuries on the relationship that exists between law and freedom. Secondly, it analyses constitutional drafting in order to examine the concrete relationship that exists between law and liberties in some relevant constitutional experience, from the U.S. Bill of Rights to the EU Charter of fundamental rights.
The rule of law and “the liberties of the English”. The interpretation by Albert Venn Dicey
P. Costa, D. Zolo (eds), The Rule of Law: History, Theory and Criticism, Springer, 2007
The rule of law and "the liberties of the English". The interpretation by Albert Venn Dicey 1. Law and the liberties of the English At the close of the seventeenth century, following the Glorious Revolution and the victory of the Parliamentarians, it was widely believed among the English that the 'rule of law' had been established and that individual liberty would therefore be assured. Jurists and political theorists began to maintain that judicial procedures, the public nature of trials, the rules relating to evidence together with the role of the jury, ensured solid legal guarantees to those accused of any crime, thereby protecting the fundamental rights of their countrymen. The rhetoric accompanying the battle fought in seventeenth-century England against monarchical absolutism did not put direct emphasis on subjective rights and freedom, but raised the banner of objective law. Sir Edward Coke' arguments best exemplify this attitude. In his works the cry for liberty is drowned by his exultation of the 'law' as the primary condition for freedom itself: "the law is the surest sanctuary, that a man can take, and the strongest fortress to protect the weakest of all" 1. The objective application of the laws and the action of the courts grant the individual protection, Coke's 2 "birth right", enabling everyone to keep safe his goods, lands, wife, heirs, body, life and honour. The law invoked by Coke was none other than 'common law'. Common law was considered to be the source of liberty: along with the legal process it was credited with limiting the power of the monarch and with protecting personal freedom. Whig 3 rhetoric owed its legitimacy to the fact that during the course of the seventeenth century common law had almost virtually eliminated the feudal differences of status, ensuring the near equality of the English subjects before the law with the notable exception of women. The relationship between feudal lords and tenants had by then come to be based on abstract rights as defined by the Royal Courts, and were beyond the landlord's jurisdiction and discretion 4. Certainly, as Douglas Hay 5 has pointed out, the conquests of the revolution proved to be essential for the protection of the gentry, the newly-enriched merchant class who, in the course of the seventeenth century, had begun to rival landowners for the control of English society, against the greed and tyranny of the monarch. One of the main victories of the revolutionaries was the establishment of a normative framework guaranteeing the protection of basic rights in fundamental areas such as the transfer of property, inheritance laws, contracts, wills and writs. The fact that these achievements were grafted onto the well-established tradition of common law lent them stability. Since its very early stages, common law had been characterised by a system of writs designed to safeguard agreements and arrangements between citizens dealing with each other on a par. A seventeenth-century Englishman might well have had the impression of conducting his life within the framework of horizontal legal relationships with his countrymen, in so far as citizens were formally recognised as equal before the law. The vertical dimension was based on the relationship between the citizen and his sovereign, who could not, by definition, damage or encroach upon the rights of his subjects. But it was this very definition that made it impossible for him to be called to judgement or to answer for his actions. In theory, then, citizens' rights were not guaranteed in the case of arbitrary action by the sovereign. But the sovereign's immunity was soon neutralised by the Courts, which elaborated the doctrine according to which, as
The Present and Future of Natural Law: A Conversation with Robert P. George
This article presents an unpublished interview with Professor Robert P. George (Princeton Universi- ty, USA) with the aim of reaching out to scholars from non-Anglo-Saxon countries in order to offer a compre- hensive view of the main issues currently being debated by legal and political scholars from a non-continental view- point. The text shows how a significant number of An- glo-Saxon scholars have recovered the discredited notion of natural law, through the so-called «New School of Nat- ural Law». With this new approach to natural law, George presents a clear defense of rights and institutions currently confronted by the tyranny of «the politically correct». One powerful aspect of this new School includes the elabo- ration of arguments and counter-arguments to one’s own position. In this way, George invites his participant – whether in the classroom or through his dialectical works– to think for him or herself without fear of questioning even one’s deepest ideas and convictions. As a consequence of this thought process, one is able to receive new lights and, thus, rectify and reach a more complete truth. If, on the contrary, one has unsupported explanations or reasonings with logical fallacies, the method will strengthen one’s personal ideas, which must always be presented with the openness of those who do not consider themselves infal- lible. The main topic of this article is a detailed analysis of the natural law, as understood by the «New School of Natural Law», in which George is inscribed as one of its main protagonists. It also presents the criticisms of which this New School is frequently the object. It should be therefore an enlightening text for jurists and philosophers interested in knowing first¬hand the principles of this School, still not widespread in the continental tradition. Another aspect of interest is the exposition of the meth- odology that, according to George, should guide Constitu- tional Interpretation. For jurists not fully internalized in the tradition of Anglo-Saxon Common Law, his explanation of how judges should proceed when resolving different cases is insightful. The judges must be limited, says George, to the role that the Constitution has assigned to them: to apply the law as is. Thus, Given the frequent tendency for judges to indirectly become legislators, he warns that this mode of proceeding presupposes frequent violations of the Constitution that they have sworn to defend. Another topic extensively argued is the role of religion in public life. Although George prefers to make use of rational argu- ments in his defense of values (among them the protec- tion of human life in all its instances, marriage as the un- ion of a man and a woman open to life, or the defense of freedom, etc.), he makes it clear that religion has the right to participate in public life by contributing its knowledge and values in favor of the socio-political common good as many important figures have done in the history of United States. Hence, George does not advocate neutrality in the public sphere, nor does he support the opposite extreme: a «sacred public square». He supports a society that is not only «civil» but also «civilized», that is to say, a society in which every citizen can manifest his words and/or his ide- as and beliefs in an ambiance of mutual respect. Such a society believes that every citizen not only has the right to think, to believe and to live according to his views, but also is able to give reasons for them, whether from a secular or religious perspective.
The Use of Knowledge and Moral Imagination in the Common Law
Ohio Northern University Law Review, 2019
This article discusses the common law in terms of Hayekian epistemology. The common law is not just a historical and governmental system for resolving disputes through courts and case precedents, traceable to eleventh-century England and adopted by the United States and nearly half of the countries on earth. It is also a mode of preserving and transmitting knowledge about the human condition that develops out of ascertainable facts rather than abstract speculation. It is bottom-up, reflecting the embedded norms and values of the community as against executive command or legislative fiat.
The present paper attempts to trace out the implications of the libertarian philosophy for the proper relationship between an inhabitant of a country, and its unjust government. Part I of this paper includes section 2, in which the stage is set for answering this challenging question, section 3, in which the essence of the state is discussed, section 4, in which libertarian punishment theory is introduced and the beginning of section 5, in which the concept of the libertarian Nuremberg trial is explored, and in 5a. the assumption that all citizens are guilty of the crimes of the unjust state is rejected. In Part II of this paper, we begin with section 5b. which considers the possibility that all and only minions of the unjust state are guilty for its crimes, in a continuation of our libertarian Nuremberg trial analysis, and 5c. introduces libertarian ruling class theory. Section 6 traces out the proper relations between the subjects and the unjust government, section 7 asks if it is ever legitimate to disrupt such an institution, and we conclude in section 8.