It is probably true that in the eighteenth century the English, little given to speculation about general principles, were for this reason more firmly guided by strong opinions about what kind of political actions were permissible, than the French who tried so hard to discover and adopt such principles.
The truth seems to be that while they talked little about principles, the English were much more surely guided by principles, while in France the very speculation about basic principles prevented any one set of principles from taking a firm hold. The preservation of a free system is so difficult because it requires a constant rejection of measures which Edition: current; Page: [ 36 ] appear to be required to secure particular results, on no stronger grounds than that they conflict with a general rule, and frequently without our knowing what will be the costs of not observing the rule in the particular instance.
A successful defense of freedom must therefore be dogmatic and make no concessions to expediency, even where it is not possible to show that besides the known beneficial effects, some particular harmful result also would follow from its infringement. Freedom will prevail only if it is accepted as a general principle whose application to particular instances requires no justification. It is thus a misunderstanding to blame classical liberalism for having been too doctrinaire.
Its defect was not that it adhered too stubbornly to principles, but that it lacked principles sufficiently definite to provide clear guidance, and that it often appeared simply to accept the traditional functions of government and to oppose all new ones. Consistency is only possible if definite principles are accepted. But the concept of liberty with which the liberals of the 19th century operated was in many respects so vague that it did not provide clear guidance. People will not refrain from those restrictions on individual liberty that appear to them the simplest and most direct remedy of a recognized evil if there does not prevail a strong belief in definite principles.
The loss of such belief and the preference for expediency is in part the result of the fact that we no longer know any principles which can be rationally defended. The rules of thumb which at one time were accepted are not adequate to decide what is and what is not permissible in a free system. It indeed expressed protest against abuses of governmental power, but never provided a criterion by which one could decide what were the proper functions of government.
The lay reader may not be fully aware how far we have already moved away from the ideals expressed in these terms. While the lawyer or political scientist will at once see that what I am espousing is an ideal that has largely vanished and has never been fully realized, it is probably true that the majority of people still believe that something like it still governs public affairs. It is because we have departed from the ideal so much further than most people are aware of, and because, unless this development is soon checked, it will by its own momentum transform society from a free into a totalitarian one, we must reconsider the general principles guiding our political action.
We are still as free as we are because certain traditional but rapidly vanishing prejudices have impeded the process by which the inherent logic of the changes we have already made tends to assert itself in an ever widening field. In the present state of opinion the ultimate victory of totalitarianism would indeed be no more than the final victory of ideas already dominant in the intellectual sphere over a mere traditionalist resistance. With respect to policy, the methodological insight that in the case of complex spontaneous orders we will never know more than the general principles on which they operate or predict the particular changes that any event in the environment will bring about, has far-reaching consequences.
Often it is even a partial insight into the character of the spontaneous overall order that becomes the cause of the demands for deliberate control. So long as the balance of trade, or the correspondence of demand and supply of a particular commodity, adjusted itself spontaneously after any disturbance, men rarely asked themselves how this happened.
But once they became aware of the necessity of such constant readjustments, they felt that somebody must be made responsible for deliberately bringing them about.
The economist, from the very nature of his schematic picture of the spontaneous order, could counter such apprehensions only by the confident assertion that the required new balance would establish itself somehow if we did not interfere with the spontaneous forces; but as he is usually unable to predict precisely how this would happen, his assertions were not very convincing.
Yet when it is possible to foresee how the spontaneous forces are likely to restore the disturbed balance, the situation becomes even worse. The necessity of adaptation to unforeseen events will always mean that someone is going to be hurt, that someone's expectations will be disappointed or his efforts frustrated.
This leads to the demand that the required adjustment be brought about by deliberate guidance, which in practice must mean that authority is to decide who is to be hurt. The effect of this commonly is that the necessary adjustments will be prevented whenever they can be foreseen. What helpful insight science can provide for the guidance of policy consists in an understanding of the general nature of the spontaneous order, and not in any knowledge of Edition: current; Page: [ 39 ] the particulars of a concrete situation, which it does not and cannot possess.
The true appreciation of what science can contribute to the solution of our political tasks, which in the nineteenth century was fairly general, has been obscured by the new tendency derived from the now fashionable misconception of scientific method: the belief that science consists of a collection of particular observed facts, which is erroneous so far as science in general is concerned, but doubly misleading where we have to deal with the parts of a complex spontaneous order. Since all the events in any part of such an order are interdependent, and an abstract order of this sort has not necessarily any recurrent concrete parts which can be identified by individual attributes, it is necessarily vain to try to discover by observation regularities in its parts.
The only theory which in this field can claim scientific status is the theory of the order as a whole; and such a theory though it has of course to be tested on the facts can never be achieved inductively by observation but only through constructing mental models made up from the observable elements.
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It is not to be denied that to some extent the guiding model of the overall order will always be an utopia, something to which the existing situation will be only a distant approximation and which many people will regard as wholly impractical. Yet it is only by constantly holding up the guiding conception of an internally consistent model which could be realized by consistent application of the same principles, that anything like an effective framework for a functioning spontaneous order will be achieved.
Utopia, like ideology, is a bad word today; and it is true that most utopias aim at radically redesigning society and suffer from internal contradictions which make their realization impossible. But an ideal picture of a society which may not be wholly achievable, or of a guiding conception Edition: current; Page: [ 40 ] of the overall order to be aimed at, is nevertheless not only the indispensible precondition of any rational policy, but also the chief contribution that science can make to the solution of the problems of practical policy.
The chief instrument of deliberate change in modern society is legislation. But however carefully we may think out beforehand every single act of law-making, we are never free to redesign completely the legal system as a whole, or to remake it out of the whole cloth according to a coherent design. Law-making is necessarily a continuous process in which every step produces hitherto unforeseen consequences for what we can or must do next. The parts of a legal system are not so much adjusted to each other according to a comprehensive overall view, as gradually adapted to each other by the successive application of general principles to particular problems—principles, that is, which are often not even explicitly known but merely implicit in the particular measures taken.
For those who imagine it possible to arrange deliberately all the particular activities of a Great Society according to a coherent plan, it should indeed be a sobering reflection that this has not proved possible even for such a part of the whole as the system of law.
Few facts show more clearly how prevailing conceptions will bring about a continuous change, producing measures that in the beginning nobody had desired or foreseen but appear inevitable in due course, than the process of the change of law. Every single step in that process is determined by problems that arise when the principles laid down by or implicit in earlier decisions are applied to circumstances which were then not foreseen. In this process the individual lawyer is necessarily more an unwitting tool, a link in a chain of events that he does not see as a whole, than a conscious initiator.
Whether he acts as a judge or as the drafter of a statute, the framework of general conceptions into which he must fit his decision is given to him, and his task is to apply these general principles of the law, not to question them. However much he may be concerned about the future implications of his decisions, he can judge them only in terms of all the Edition: current; Page: [ 41 ] other recognized principles of the law that are given to him.
This is, of course, as it ought to be: it is of the essence of legal thinking and of just decisions that the lawyer strives to make the whole system consistent. It is often said that the professional bias of the lawyer is conservative. In certain conditions, namely when some basic principles of the law have been accepted for a long time, they will indeed govern the whole system of law, its general spirit as well as every single rule and application within it. At such times it will possess great inherent stability. Every lawyer will, when he has to interpret or apply a rule which is not in accord with the rest of the system, endeavor so to bend it as to make it conform with the others.
The legal profession as a whole may thus occasionally in effect even nullify the intention of the legislator, not out of disrespect for the law, but, on the contrary, because their technique 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.
The situation is entirely different, however, when a general philosophy of law which is not in accord with the greater part of the existing law has recently gained ascendancy. The same lawyers will, through the same habits and techniques, and generally as unwittingly, become a revolutionary force, as effective in transforming the law down to every detail as they were before in preserving it.
The same forces which in the first condition make for stationariness, will in the second tend to accelerate change until it has transformed the whole body of law much beyond the point that anyone had foreseen or desired.
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Whether this process will lead to a new equilibrium or to a disintegration of the whole body of law in the sense in which we still chiefly understand the word, will depend on the character of the new philosophy. We live in such a period of transformation of the law by inner forces and it is submitted that, if the principles which at present guide that process are allowed to work themselves out to their logical consequences, law as we know it as the chief protection of freedom of the individual is Edition: current; Page: [ 42 ] bound to disappear.
Already the lawyers in many fields have, as the instruments of general conceptions which they have not made, become the tools, not of principles of justice, but of an apparatus in which the individual is made to serve the ends of his rulers. Legal thinking appears already to be governed to such an extent by new conceptions of the functions of law that, if these conceptions were consistently applied, the whole system of rules of individual conduct would be transformed into a system of rules of organization.
But the leadership in jurisprudence, in the course of the process we have considered, has shifted from the practitioners of private law to the public lawyer, with the result that today the philosophical preconceptions which govern the development of all law, including private law, are almost entirely fashioned by men whose main concern is the public law or the rules of organization of government.
It would, however, be unjust to blame the lawyers for this state of affairs more than the economists. The practicing lawyer will indeed in general best perform his task if he just applies the general principles of law which he has learnt and which it is his duty consistently to apply. It is only in the theory of law, in the formulation and application of those general principles, that the basic problem of their relation to a viable order of actions arises. For such a formulation and elaboration an understanding of this order is absolutely essential if any intelligent choice between alternative principles is to be made.
During the last two or three generations, however, a misunderstanding rather than an understanding of the character of this order has guided legal philosophy. The economists in their turn, at least after the time of David Hume and Adam Smith who were also philosophers of law, generally showed no more appreciation of the significance of the system of legal rules, the existence of which was tacitly Edition: current; Page: [ 43 ] presupposed by their argument. They rarely put their account of the determination of the spontaneous order in a form which could be of much use to the legal theorist.
But they probably contributed unknowingly as much to the transformation of the whole social order as the lawyers have done. This becomes evident when we examine the reasons regularly given by the lawyers for the great change that the character of law has undergone during the last hundred years. Everywhere, whether it be the English or American, French or German legal literature, we find alleged economic necessities given as the reasons for these changes. To the economist the accounts by which the lawyers explain that transformation of the law is a somewhat melancholy experience: he finds all the sins of his predecessors visited upon him.
These accounts invariably speak of a past laissez-faire period, as if there had been a time when no efforts were made to improve the legal framework so as to make the market operate more beneficially or to supplement its results. The legend, though wholly untrue, has become part of the folklore of our time.
The fact is, of course, that as the result of the growth of free markets the reward of manual labor has during the past hundred and fifty years experienced an increase unknown in any earlier period of history. It seems almost a habit of thought of the lawyer to regard the fact that legislature has decided on something as evidence of the wisdom of that decision. This means, however, that his efforts will be beneficial or pernicious according as to the wisdom or foolishness of the precedent by which he is guided, and that he is as likely to become the perpetuator of the errors as of the wisdom of the past.
If he accepts as mandatory for him the observable trend of development, he is as likely to become simply the instrument through which changes he does not understand work themselves out as the conscious creator of a new order. In such a condition it will be necessary to seek for criteria of the developments elsewhere than within the science of law. This is not to say that the economist alone can provide the principles that ought to guide legislation—though considering the influence that economic conceptions inevitably exercise, one must wish that such influence would come from good economics and not from that collection of myths and fables about economic development which seems today to govern legal thinking.
Our contention is rather that the principles and preconceptions which guide the development of law inevitably come in part from outside the law and can be beneficial only if they are based on a true conception about how the activities in a Great Society can be effectively ordered. The role of the lawyer in social evolution and the manner in which his actions are determined are indeed the best illustration of a truth of fundamental importance: namely that, whether we want it or not, the decisive factors which Edition: current; Page: [ 45 ] will determine that evolution will always be highly abstract and often unconsciously held ideas about what is right, and not particular purposes or concrete desires.
It is not so much what men consciously aim at, but their opinions about permissible methods which determine not only what will be done but also whether anyone should have power of doing it. Over the centuries a certain economic syndrome has recurred again and again, starting as a consequence of war or the deliberate printing of money.
The following symptoms amongst others develop:. At a certain point in the development of the crisis governments have often deliberately, by law, attempted to hold prices and wages from rising, thus causing civil strife. Particular examples are the bloodshed which followed the notorious Edict of Diocletian in Rome of A. Tyranny has been an almost inevitable consequence. The tie of party was stronger than that of blood, because a partisan was more ready to dare without asking why.