Certainty of law is an important factor in long-term economic development.
Excessive legislation and regulation brings uncertainty to the businesses
and investors. One day your business is fine, the next day it may be forbidden, over-regulated,
taxed, and so on. Stable law lowers uncertainty, allows to make long-term plans,
thus encouraging investments. Increased investments lead to more effective production,
cheaper products due to increased supply, and more jobs which positively influences wages.
Stable, certain law favors higher living standard.
Unfortunately, we’re living in the world of legislative inflation and excesive
regulation.1 But does it have to be this way? What if we confuse the law with legislation,
and it’s a big mistake? What if our ancestors understood
the law in a completely different way, and we have forgotten it all?
Italian law professor and author of the book “Freedom and the law” - Bruno Leoni - will help
us to answer these questions. First he analyzes legal systems in ancient Greece and ancient Rome.
He informs us, that the Greek conception of the certainty of the law was that of a written law.2
It means, that the law was considered to be certain, because they were “precisely worded
in a written formula” which differentiated it from “the arbitrary orders of tyrants”.3
We know this kind of certainty of the law, because we understand it the same today.
Our laws are certain in the sense, that its written in bills, and any man can read a bill,
and know what is says. However, as Leoni informs, the Greeks faced a problem also similar
to ours – legislative inflation. Law-making process, especially in Athenian democracy,
where every fully-fledged citizen could submit a bill proposal, lead to the situation in which
the law was certain (in the meaning that it was written down), but any citizen couldn’t be sure,
that a law that is in effect today, would be in effect tomorrow. And if what’s legal today,
would be still legal tomorrow. Athenians noticed this problem, and at the end of V century B.C.E,
Athenian politician Teisamenos, reformed the system. After the reform,
any bill proposal was studied by the committee of magistrates named nomothetai,
whose job was to “defend” the previous legislation against the new proposal.4
Moreover, the proponent of the new bill, was personally responsible for the potential
negative effects of the new law, if it was voted in by the Assembly. If someone was to
prove that his proposal had grave defects, or was in contradiction with the previous laws,
he could be tried and even sentenced to death (although the most common punishment was a fine).5
We can sure learn something from the history. Greeks, who understood political freedom in
a somewhat similar way to classical liberals6, came to the conclusion,
that this freedom won’t be achieved solely by precisely written law, which can suddenly
change at any given time. They realized that they need long term stability of the law. After all,
what is the practical difference between the fickleness of a tyrant, and the fickleness
of the demos, which every day replaces one “certain” law, with the other, equally “certain”.
Because, as you’ve probably already noticed, Greek certainty of the law is short-term certainty.
Certainty of the law was understood differently in ancient Rome. As Leoni writes:
We probably are so used to thinking of the Roman legal system in terms of Justinian's Corpus Juris
that is, in terms of a written law book, that we fail to realize how Roman law actually worked. A
large part of the Roman rules of law was not due to any legislative process whatever. Private Roman
law, which the Romans called jus civile, was kept practically beyond the reach of legislators during
most of the long history of the Roman Republic and the Empire. Eminent scholars, such as the late
Italian Professors Rotondi and Vincenzo Arangio Ruiz and the late English jurist, W. W. (William
Warwick) Buckland, repeatedly point out that "the fundamental notions, the general scheme of the
Roman law, must be looked for in the civil law, a set of principles gradually evolved and refined
by a jurisprudence extending over many centuries, with little interference by a legislative body".7
Of course, legislation existed in Rome, but it mainly applied to government officials.
Professor Leoni quotes Buckland’s words, who says that from the many hundreds of leges (bills),
which remained to this day, only 40 were of importance in the private law.
Roman citizens rarely based their claims on a written rule precisely worded,
and therefore certain in the Greek or short-run sense of the
word, in case of disagreement about their rights or duties.8
But because of the Roman law-making process, or should we say – law-discovery process – they
could plan their actions much further ahead than the Greeks. Thus in the Roman concept
the certainty of the law meant long-term stability.
Leoni informs us that: “The Roman jurist was a sort of scientist:
the objects of his research were the solutions to cases that citizens submitted to him for study,
just as industrialists might today submit to a physicist or to an engineer a technical problem
concerning their plants or their production. Hence, private Roman law was something to be
described or to be discovered, not something to be enacted — a world of things that were there,
forming part of the common heritage of all Roman citizens.
Nobody enacted that law; nobody could change it by any exercise of his personal will. This
did not mean absence of change, but it certainly meant that nobody went to bed
at night making his plans on the basis of a present rule only to get up the next
morning and find that the rule had been overturned by a legislative innovation”.9
As we’ve mentioned, legislation existed in Rome, but there is another important thing to notice
here. The law wasn’t identified with legislation. Professor Leoni, invoking Cicero, tells us,
that every bill proposal had to include a clause that said: “if there is in this bill whose
approval I am requesting of you, anything that is not legal, your approval of it is to be considered
as not requested”. It means, that the bill wasn’t the law, and even could be contrary to the law.10
Leoni describes this idea of legitimacy as strikingly similar,
to the English “rule of law”, and then adds: “According to the English principle of the
rule of law, which is closely connected with the whole history of the common law,
rules were not properly the result of the exercise of the arbitrary will of particular men.
They are the object of a dispassionate investigation on the part of courts of
judicature, just as the Roman rules were the object of a dispassionate investigation
on the part of the Roman jurists to whom litigants submitted their cases”.11
We have to emphasize however, that in modern England,
law is more and more confused with legislation, what Leoni describes like this:
“A revolution is occurring in England by virtue of the gradual overturning of the law of the land by
way of statutory law and through the conversion of the rule of law into something that is now
increasingly coming to resemble the Continental état de droit, that is, a series of rules that
are certain only because they are written, and in general, not because of a common belief on the
part of the citizens about them, but because they have been decreed, by a handful of legislators”.12
There were English lawyers who stood up to this revolution,
for example Sir Matthew Hale, who emphasized the role of being
“well informed by studies and reading what were the judgements and resolutions and decisions and
interpretations of former ages” as a way to “keepe as neare as may be to the certainty of the law,
and the consonance of it to itselfe”.13 And he meant long-term certainty of the law.
Similarly to Hayek in economics, Sir Mathew Hale warned about
“the fatal conceit” in the area of the law, by saying:
„It is a reason for me to preferre a law by which a kingdome hath been happily governed
four or five hundred years than to adventure the happiness and peace of a kingdome
upon some new theory of my own”14
To sum up, certainty of the law was understood in two different ways.
Short-term certainty as a precisely worded laws in a written formula, and long-term certainty
as a long-term stability, which allowed to plan ahead without worrying about sudden law changes.
What we need today, is the second one – long-term stability. As we can see,
there were greatly respected legal systems, like Roman and English, that could maintain long-term
stability of the law, for a long period of time. So, to the question asked at the beginning:
“But does it have to be this way?”, we say: No, because is are sensible and proven alternative.