I.          Introduction.

The ideal of the rule of law is presently considered of paramount importance.  It is not possible to conceive of any free society organized on the foundations of a different ideal.  At least, not on a stable basis or in the long term. Just as the democratic ideal, that of the rule of law is acclaimed and defended by all camps of the political spectrum and, as is the case with the former, there are different notions of the latter.  Often times their source is ideologically biased, but there are also certain more or less objective differences.

In this work I present my view as to the essence of the ideal of the rule of law from the perspective of the classical liberal tradition.  Therefore, the view expounded here very probably will not fit the notion that the state, the Government or its agencies, can and must interfere with the rights and long term legitimate expectations of individuals, should some higher ideal of social justice demand it.

Therefore, my definition of the ideal of the rule of law is a consequence of my conviction that individual freedom is more valuable as a principle, than those of material equality (as opposed to equality before the law), social justice, or solidarity, to mention just some others. This conviction is rooted in my understanding of the essential nature of the human being, as endowed with intelligence and free will.  But I am also persuaded by the economic theories that have abundantly explained how individual freedom leads to more prosperity for the most part of the people, and this persuasion, living in a country where about 15% of the people live in extreme poverty, carries great weight for me.

There are a number of works, like Dicey’s The Law of the Constitution, where it is maintained that the Common Law system is “a better” option for the realization of the ideal of the rule of law, as it is understood in the classical liberal tradition.  I have also read some commentaries or heard lectures where it has been maintained, or at least suggested, that Frederick A. Hayek shares this view in the Constitution of Liberty or in Law, Legislation, and Liberty.  At a point in time I came to think that certain methodological traits of the Common Law do justify such kinds of opinions, but upon more reflection and also in part as a consequence of my practice as an attorney involved in international transactions, I have come to a different conclusion.

In this paper I will then present my definition of the ideal of the rule of law, in order to explore whether on the basis of the main characteristics of each of the Common Law and the Civil Law systems, it is possible to reach any definitive conclusion as to which may be “better” or more conducive to the realization of this ideal.

With a broader focus than that of this work, Merryman et. al. have found that there are several points of divergence and of convergence between these two major legal traditions, observing the following:

“However, a more convincing measure of convergence is the extent to which legal systems in the Civil Law and Common Law nations play out the fundamental values of Western culture. The increasing emphasis on legal protection of human rights and the increasingly sensitive legal recognition of particular regional and social interests within legal systems in both families indicate that the Common Law and the Civil Law are moving along parallel roads, toward the same destination.”1

Given the velocity, intensity, and magnitude of inter-jurisdictional interaction these days, it is easy to understand how there may be multiple elements of convergence. Additionally, the law of the European Union has played a role in this direction as well as some multi-jurisdictional free trade agreements, such as NAFTA and DR-CAFTA. Nevertheless, these two great legal traditions retain their more important specific characteristics, such that it is not a futile exercise –I think—to reflect on their rapport with the ideal of the rule of law, understood within the framework of the doctrines of classical liberalism.

II.        The Rule of Law.

One way to consider the elements that are necessary for the implementation of the rule of law is to distinguish between its subjective and objective elements. The former refer to the kind of dispositions or mentality that is required from the average citizen, so that the rule of law may operate reasonably well, the latter refer to the requisite legal and institutional arrangements.

This approach begs the question: what is the rule of law? Because depending on the definition of the rule of law that might be given, it then becomes possible to judge whether any particular subjective or objective element is essential or just accidental for the actual implementation of the rule of law.

In my opinion, the rule of law is a regime where neither public officials nor any private individual can interfere with the free exercise, active or passive, of the rights as defined by law of any person; and it is a regime where all of this is determined by functionally and financially independent judges.

A.       The subjective Elements of the Rule of Law.

Let us consider first the subjective elements necessary for the implementation of such a regime and, in order to do that, it is important to discuss briefly how extended among the members of any political society should these subjective elements be.

In my opinion, these elements have to be very widespread at the level of the elites of society. Unless the intellectual, the political, and the business elites of any society share widely these subjective elements, it is very improbable that the rule of law may be implemented in a stable manner and for the long run. The rather obvious success of a variety of special interest groups in many countries of Latin America and in other parts of the developing world, many of them conformed by members of the business elite and of the political leadership, often in collusion, speaks to this problem.

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1 John Henry Merryman, David S. Clark, and John O. Haley; The Civil Law Tradition: Europe, Latin America, and East Asia. Published in1994 and reprinted in 2000 by The Michie Company, Charlottesville, Virginia. At P. 25

It is also notorious, and rather sad, that the masses of society, particularly in the developing world, endure for long periods of time the lamentable consequences of regimes that do not conform to the rule of law, whether or not they are conscious of the ultimate causes of their deprivations.  In the wealthier and better educated societies of the first world, the masses are clearly more interested in maintaining their entitlements, than in the preservation of rule of law.  However, the fact that in a number of important aspects of their lives they can reasonably rely on the system for their tranquility and protection makes them value the blessings of the rule of law to a greater extent.

Thus, it is undeniable that there is a direct relation between the probable success of a populist leader, willing to dispense with the rule of law or just indifferent to its adequate operation, on the one hand, and the lack of commitment to the rule of law on behalf of the masses of society, on the other.

In any society where the rule of law is just one of the costs to win an election on a ticket that promises transfers, entitlements and other advantages for the half plus one, it is highly probable that some kind of populist or arbitrary regime will emerge, as in the more conspicuous cases of Venezuela, Nicaragua, or Bolivia.

Therefore, it is possible to conceive of four basic situations:

a)  Generalized support of the ideal of the rule of law, both at the level of the elites of society and among the masses of the population;

b)  The elites of society do support the ideal of the rule of law, but the same is not true at the popular level;

c)  The elites of society opt for the profits from certain privileges and advantages, even at the cost of the rule of law if necessary, but the popular masses do support the ideal; and

The implications of situations a) and d) are quite obvious and thus invite no further comment.  Situation b) more or less describes the circumstances that emerge at the time of the independence of a new country, as in several cases in Africa after World War II, or when there is a return to democratic rule, as in several Latin American countries at the end of the Cold War period or the conclusion of the leftist insurgent movements in the region. Surrounding these types of circumstances the elites of society tend to unite in favor of several ideals, including that of the rule of law.  Their continuing adherence to them depends on a wide variety of factors, but there is one that usually challenges their faith, namely: “the trap of pragmatism”.

By “the trap of pragmatism” I refer to the mentality according to which the urgent needs of the poor, the weak, the marginalized sectors of society call for immediate and radical actions …whether or not such actions could be judged to be contrary to the rule of law.  The record shows a wide range of pragmatic decisions, responding to this call for action, that go from price controls all the way to the expropriation of resources or the nationalization of complete industries.

I would argue that the so called “Consensus of Washington” was, more or less, the suggested remedy to the catalog of pragmatic actions that, not only, but mostly the developing world adopted in good part due to the fact that their leadership, their elites, fell prey to the trap of pragmatism and the call for radical action, at the expense of the rule of law if need be. Obviously, along this process there were many opportunists that profited from many of these pragmatic measures.

Situation c), one where the elites do not support the ideal of the rule of law but the popular masses do, is perhaps the least common of the four.  However, Spain under Franco, in the period preceding the years of the transition to democratic rule, may be one instance where a majority of the population did support the ideal of the rule of law, although the ruling elites still adhered to the dictatorial regime, at least to last for a few more years.

By way of conclusion, where the elites of society fall prey to the trap of pragmatism or are in general disposed to bargain for their privileges, at the cost of the rule of law or regardless of it, it is very improbable that this ideal may be implemented or sustained in the long run.  Where the majority of the population does not lend its loyalty to the rule of law, the prospect of the instauration of a more or less populist and arbitrary regime becomes a serious threat.  As I’ve discussed elsewhere2, Latin America seems to be divided between those countries where the rule of law has been eroded mainly by a lack of commitment of  the elites to the rule of law, and those where the lack of support of this ideal went with the masses who followed populist and charismatic leaders.  There are, thankfully, a few exceptions.

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2 Mayora Alvarado, Eduardo. ”El Origen y el Auge del Neosocialismo en América Latina”.  Laissez-Faire, N° 30-31; Universidad Francisco Marroquín, Guatemal

Now it is time to consider those subjective elements that are necessary in order that the ideal of the rule of law may endure in the long run.  There may be many more subjective elements conducive to this purpose, but I will refer only to those I think necessary which, in alphabetical order, are the following:

·    Cooperation versus organization: a preference of cooperation among individuals, rather than organization from above.

      ·    Freedom versus security: less willingness to trade individual freedom for security.

      ·    Justice: a sense of justice.

·    Spiritualism versus materialism: a stronger preference for spiritual than material goods.

·    System: a stronger focus on the system, rather than the people who run it from time to time.

      ·    Temporal horizon: a stronger focus on the long rather than the short term.

      ·    Toleration versus uniformity: a preference for a tolerant over a uniform community.

I have not ordered these elements in any hierarchical manner because it seems to me that it depends on the circumstances whether one or more of these elements may play a more important role in the outcome of any given situation.  I think this is fairly obvious, so let us elaborate very briefly on each one of these subjective elements.

1.        Cooperation versus organization: a preference of cooperation among individuals, rather than organization from above.

Social groups are frequently faced with the choice of attaining certain common objectives either through voluntary cooperation or through collective action, organized by or within some level of governmental structure.  In my opinion, a generalized preference for voluntary cooperation rather than for some type of organization imposed from above on behalf of the people, works in favor of the operation of the rule of law.

Cooperation among individuals generally occurs by reference to a set of rules that those who cooperate among themselves recognize as valid.  In Hayekian terms, they coordinate themselves by reference to those rules and the organization of government is necessary only to help enforce those rules when needed.  By contrast, the attainment of the same objectives through governmental agencies and actions requires the issuing of directives, orders or instructions to those involved and, not infrequently, to dispose of resources for the same purpose.

While the latter kind of arrangement may well be preferable some times on the basis of economic efficiency or other criteria, my argument here is that in a society where the majority of the people, given the choice, are generally more inclined or disposed to attain their common goals through governmental action, the rule of law will be under a much greater strain than otherwise.

This is due mainly to two reasons: a) governmental action of this kind usually involves interference with the rights of individuals; and b) it requires this interference to proceed on the basis of an important degree of discretionary power for the Administration.

2.        Freedom versus security: less willingness to trade individual freedom for security.

Individual freedom as the basic principle of social organization produces the greatest number of opportunities to prosper for the greatest number of people, but it does not and cannot guarantee a risk free environment. Even in the wealthiest societies of the industrialized west, where the fruits of relatively freer economies operating for longer periods of time have actually provided an extraordinary variety of opportunities, there is an important segment of the population that is willing to trade a certain amount of individual freedom in exchange for the security afforded by the so called “welfare state”.

Once again, the administration of many aspects of the welfare state requires public interference with private rights and an important degree of discretionary power for the Administration.

3.        Justice: a sense of justice.

There is a direct relation between the extent to which those in power will restrain themselves going beyond the reasonable limits of power, and their expectation that the generality of the citizenry will demand that any abuses or trespasses be amended, redressed or repressed.  In extreme situations, where the population at large lives under fears that a demand for justice will be answered by the regime with violence or repression, the rule of law is just non-existent.  However, there are numerous historical instances where it has been shown that the people can rid themselves of even the most brutal rulers, in demand for justice.

4.        Spiritualism versus materialism: a stronger preference for spiritual than material goods.

5.        System: a stronger focus on the system rather than on the people who run it.

The mere description of just some of the most important subjective elements required to support the ideal of the rule of law should be enough to figure out how unrealistic it is to focus with more emphasis on the virtues of the people, rather than on the system.  This should not be understood to mean that it is not necessary to try to develop the appropriate mentality and dispositions, precisely because they are necessary for the survival of the ideal in the long run, but in the sense of the famous thought that: in a society of angles, there is no need for laws.

6.        Temporal horizon: a stronger focus on the long rather than on the short term.

In modern democratic societies, where a majority of representatives may easily exchange public goods and temporary advantages in exchange for the support of special interest groups, or even in favor of the majority of the people, it is very unlikely that the rule of law may survive, unless there is a clear sense that short term gains may come at the cost of greater long term stability and prosperity. The focus on the long term on behalf of the generality of the population is, thus, a basic element for the survival of this ideal.

7.        Toleration versus uniformity: a preference for a tolerant over a uniform community.

One of the most difficult challenges to the rule of law is the drive to impose uniformity by the groups in the majority.  Toleration of diverse minority groups and of their beliefs and preferences thus reduces the numerous strains to which a regime that aspires to the rule of law is frequently subjected.

B.       The objective elements of the rule of law.

As concerns the objective elements of the rule of law, I will refer only to those that I consider necessary for its adequate implementation. These are:

                       1.        A correct understanding of the nature of law.

As it is discussed in more detail later, Friedrich A. Hayek has noted in Law, Legislation, and Liberty3, that the notion of the rule of law depends on a correct understanding of the nature of law. To the extent that law would be equated with the will of a transient majority in any representative assembly, as laid down in the form of a statute, regardless of the character of the rules, the rule of law becomes something very close to the rule of men.

But someone might argue that the rule of men, where “men” means a group of legitimately elected representatives of the people on the basis of some principle that conforms to the democratic ideal, is perfectly acceptable.

And there are, of course, a number of things that a representative assembly does and ought to do that should not require more than democratic legitimacy.  Basically, these are the functions of government, as Hayek has referred to them also.4 But unless one is prepared to accept that the law can be used (or that it is compatible with the notion of the rule of law that the law be used) to grant privileges or advantages to certain special interest groups, or that the majority represented by the predominant coalition in the representative assembly use the law to operate transfers of wealth from the minority to the majority, the law has to be general and universally applicable.

These attributes of generality and universal application are intrinsically present in the rules that develop within the Hayekian spontaneous order, mainly because these rules are solutions to real life problems that become adopted or followed generally by the members of society, in order to coordinate their actions with a view to the attainment of each one’s specific objectives.5

Therefore, concerning the private law, generality, abstraction, and universal application are intrinsic characteristics of the rules which, as Hayek has also noted, are discovered not invented.6 However, once a set of solutions for any given field of human activity has developed, it is possible that different kinds of pressures within the political process might emerge to manipulate some of the rules in order to attain objectives other than those that would have been sought by the parties to an agreement, or to “n” number of agreements or transactions.  One of many examples is the field of credit and banking, where several special interest groups have interfered over time with the body of private law that had developed, in order to attain objectives such as, for example, to subsidize the housing industry. The body of contract law has been manipulated through consumer protection regulations, labor regulations, and the law on anticompetitive practices, so called.

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3 Hayek, Friedrich A.; LAW, LEGISLATION AND LIBERTY, Vol. III, pages 109 et seq.

4 Idem at 46, 47.

5 LAW, LEGISLATION AND LIBERTY, Vol. I, pages 94 et seq.

6 See, LAW, LEGISLATION AND LIBERTY, Vol. II, pages 34 et seq., and in particular, P. 44: “…yet we can still maintain that the further development of the rules of just conduct is not a matter of arbitrary will but of inner necessity, and that solutions to open problems of justice are discovered, not arbitrarily decreed.”

The enactment of statutory limitations to the operation of the rules of private law, provided it is through general and abstract rules universally applicable, might well be deemed appropriate and necessary as a matter of general opinion and majority rule.  The fact that such limitations would affect everyone alike should help in understanding better and faster whether the new rules are desirable or not.  When to the contrary, this type of limitations come through discriminatory legislation and some groups benefit substantially at the cost of the generality, it is unlikely that the unfavorable effects thereof will be removed before much distortion of the economic system has taken place. As it has been often pointed out, special interest legislation usually favors the beneficiaries with substantial gains to them, but at a cost that dispersed among the generality of the people is difficult to be perceived and quantified individually.

2.        A realistic understanding of the nature of power and its exercise.

The ideal of the rule of law cannot become a reasonably good operative principle unless it is clearly understood that, beyond the scruples of those who exercise public power and their subjective disposition to discharge their office according with that ideal, there are very concrete and identifiable reasons why public power will not be exercised in the best interest of the people, for the common good, or in order to promote some ideal of social justice.

James Buchanan and Gordon Tullock have rightly pointed out in The Calculus of Consent that:

“It should be stressed that moral restraint is a substitute for institutional- constitutional restraint, and in a society with more of the former there will be less need for the latter, and vice versa. Our quarrel with those who would rely primarily on the moral restraint of individuals to prevent undue exploitations of individuals and groups through the political process is, therefore, at base, an empirical one.”7

One obvious corollary of this is that some sort of restraint is always needed, lest those in power use it for purposes other than the general interest or the common good.

Although it might sound simplistic, it is important to consider two additional derivations of the propositions quoted in the paragraph above: first, that moral restraint depends on the principles that each individual may hold to be valid and that those principles often vary from one person to another (even if not necessarily in a radical manner). Second, that there are no additional costs to restrain public officials in the exercise of their powers in a like manner as they would have restrained their own actions. Following this line of reasoning, it is clear that failure to institute constitutional and legal restraints, founded on an unrealistic expectation of the effectiveness of moral restraints, will result in substantial costs to the whole system.  In other words the ideal of rule of law will not be a functional reality.

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7 Buchanan, James M. and Tullock, Gordon; THE CALCULUS OF CONSENT, Liberty Fund Inc., Indianapolis, 1999. P. 303.

3.        A sufficient degree of independence for the Judiciary.

It is of course necessary for executive officials to enjoy a certain degree of discretionary power in order to dispose of the resources placed under their responsibility in order to discharge their duties.  And it is also necessary that legislative assemblies be empowered to make laws and to amend them as they deem necessary to meet the needs of society.  But the democratic system of government is one where the ability to exercise and remain in power often faces the Government and the legislators with practical and ethical dilemmas.

Some of those dilemmas relate to the formation of coalitions of interests with organized groups that, in exchange for different kinds of advantages, are in position and willing to provide their support to those who are and want to remain in power.  Not the only, but the main problem with those advantages or privileges is that very frequently their creation is at the cost of the rights or the legitimate expectations of those individuals or their organizations that, simply, do not belong to the prevailing coalition.  One of the implications of this, of course, is the erosion of the free market system which in order to function efficiently requires, inter alia, clearly specified and freely transferable rights. Even where those dilemmas result in the creation of general inflationary processes or in higher taxation, the system is affected in that the drive to invest capital falters and the amount of capital available for investment diminishes.

To the extent that the creation and provision of those advantages is sometimes actually permitted by the constitutional and legal rules, the nature of the problem relates either to a notion of “law” or to the understanding of “political power”, incompatible with the ideal of the rule of law as discussed above.  Where the law of the Constitution allows for the issuing of more or less discriminatory legislation and for devising public policy, or using the resources of the state, in order to secure the operation of a ruling coalition there is little that can be done, except to try to create a more powerful coalition that would substitute the existing one through, for example, wining an election.

But in a situation where the constitutional rules and the laws of the state do establish limits to the use of political power, for the benefit of the ruling coalition of interests, it is indispensable that the department of the Judiciary be organized and endowed with the powers and resources necessary to prevent or reverse those kinds of actions or processes.

In the abstract it is fairly simple to talk of a general law, universally applicable to an unknown number of future cases, as opposed to one that creates some kind of privilege.

But in practice the actual cases and circumstances that emerge, and the forces and pressures surrounding them, are often subtle and complex, the former, formidable, the latter. Thus, the Judiciary has to be given the stature, has to able to command the resources, and has to be sufficiently isolated from those forces and pressures, in order to be sufficiently independent.

C.       Corollary.

As mentioned in the introductory remarks of this essay, the ideal of the rule of law is one of the most, if not the most, important principle of organization of society and one that is strongly supported by virtually every ideological persuasion short of totalitarianism at one extreme, or anarchy, at the other.  But this is possible only because the notion of the rule of law is an equivocal one, to such extent that I have found it necessary to provide a definition and the main subjective and objective elements that, in my opinion, are required for this ideal to become an operative reality.  Having done that, I will try to sketch in the next two sections the most important characteristics of each of the Common Law and the Civil Law systems in order to try, afterwards, to determine if any of those systems can be considered to support this ideal better.

III.      The Civil Law System.

The Civil Law system (called “Civilian Law” by some) has a very long history and through its evolution it has become mixed with or enriched by a number of legal systems or traditions smaller in breath or in depth, or both.  Its origin is the Roman Civil Law, which in and of itself stretched over some one thousand years and across a remarkable variety of different cultures.  It never ceases to amaze young students in countries that belong to the Civil Law system, how so often their courses on so many different matters of law start with some reference to the way things were regulated by Roman Civil Law, mostly as regards the private law. It is also to their amazement how little certain aspects of the law seem to have changed over such a long period of time.

Just as with any other legal system of such historical, geographical and cultural dimensions, the Roman Civil Law did change over time as struggles for power and other political, religious, and social events shaped its contours and on occasion shooked its foundations.  However, as has been pointed out by Leoni in his work Freedom and the Law:

“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. 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.” 8

“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…"10

It must be remarked that the jurisconsult and its role in the mechanics of the Civil Law system, is one of the elements that characterize it, although to avoid confusion and exaggerate parallels, the modern “jurist”, as opposed to its noble ancestor, does not propose legal solutions or analysis directly to the courts, but only in an indirect way.

Another important characteristic that must be noted is that, “solutions” formulated as rules applicable to all cases similar to the one that is being resolved, need to be articulated in a general and abstract form.

If the following question were posed: how should be resolved a situation where a contractor has been led into executing an agreement, thereby assuming certain obligations, based on a deliberate misrepresentation about the size of the works on behalf of the other party? It is difficult to conceive of an answer capable of resolving the question posed, other than through an abstract and general proposition. Such a proposition could still be wrong, but it would have to refer to the problem posed, not to whom the parties to the agreement are or what is their rank or condition in society. Even if the person called to provide a solution wanted to favor the party who hired the contractor, his answer would have to be something like this: a deliberate misrepresentation as to the size of the works leading the contractor to execute the agreement, neither invalidates the agreement nor exempts the contractor from fulfilling his obligations  under the agreement.

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8 Leoni, Bruno; FREEDOM AND THE LAW, Liberty Fund Inc., 1991. Pages 81-82

9 Idem at pages 209-210. “It is very important to note in this connection that the process of making law adopted by Roman lawyers resulted in putting juridical relations among citizens on a plane very similar to that on which a free market put their economic relations. Law as a whole was no less free from constraint than the market itself. Or to adopt the words of Professor Schulz, the private law in Rome was developed ‘on a basis of Freedom and Individualism.’”

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10 Idem at page 83

It is not difficult to see the consequences of a rule like that one: over time contractors would not rely on the representations made by those who hire them and would have to conduct some kind of previous due diligence procedure, in order to try to minimize their risks.  Obviously this would create higher transaction costs in a number of cases (presumably some projects would require a thorough previous assessment any way), with the result that some transactions would not be worth the hassle.

From another perspective, a rule like that would not seem conducive to a model or notion of “just conduct”.  It does not seem just that one party may become obligated, under a valid agreement, on the basis of the other party’s deliberate misrepresentations.

But the important point here is that one of the characteristics of the Civil Law system, starting from its very origins in the Roman Civil Law, is that jurisconsults then, jurists later and today, remain engaged in the formulation of “rule-solutions” for real life problems and in the analysis of their practical consequences and their rapport with a sense of justice. This does not mean that this element of the system has been decisive enough to avoid legislative enactments that are formulated from a very different perspective, namely, to cater to special interest groups or to achieve some kind of public policy objective, but it is an element that has certainly curved these tendencies.

Another aspect that has been associated with the Civil Law system is that of codification. While not the first such process, probably the most famous is the one that produced Justinian’s Corpus juris civilis (a name that was given to the ensemble of its four parts until the XVI Century). It took place between 528 and 533 AD and, for the purposes of this work, it is important to remark a few of the elements that characterized the process, and have remained characteristic of later codifications.

First, the fact that the task is carried out by jurists and not by, for example, government officials or elected representatives.  The best known of the jurists that participated in the Justinian codification was Tribonian, but neither him nor his colleagues pretended to invent the law, but to compile (true, with some alterations) the iura and the leges then existing, according with a systematic plan also based on preexisting techniques. This would be a second characteristic of the process, and the third and last would be a pretension of “universality”, that is, of covering every aspect of any given branch or area of the law (civil, criminal, constitutional, etc.).

Therefore, as noted above in one of Leoni’s quotes, it is not exact to equate “codified law” with “written law”.  Every codified law is written law, but not the other way   around, not in the Civil Law system.  The differences reflect, basically,  the three elements noted in the paragraph above, namely: that a code in the Civil Law tradition implies the intervention of a group of jurists, while written law can be the product of a representative assembly, a governmental agency, or just the Chief of State; that a code is more than a mere compilation of laws, it is a systematic and coherent arrangement of the matters that belong to a whole branch of the law, while a collection of several pieces of legislation may or may not be ordered chronologically, by subject matter, or in any other fashion, but not with the systematic coherence that is per se expected to be found in a code; finally, a compilation or collection of written enactments can perfectly well cover a part or any area of the law, or any given period of time, a specific legislature, etcetera, but it is not expected to comprehend the totality of the rules and institutions belonging to any specific branch of the law.

Ideally, as the rules of the law evolve over time and new or better solutions are discovered in the process, the codes are amended, or interpreted through case law, in order to incorporate such new rule-solutions.  The amendments have to be systematically coherent with the code, so that it may continue to be conceived as such.  That is why in more or less contemporary times, the “new legislation” concerning areas such as labor, industrial relations, banking, consumer protection, environmental, or competition law, has so often become materialized in the partial mutilation of a code and the emergence of a new set of rules that do not really belong to a system of rules, but have been enacted in order to achieve certain preconceived results (whether or not successfully).

Although the codification of any area of the law does not guarantee that no “invented” rules, devised to achieve any concrete results, will be introduced over time, it is less likely that major revisions may be introduced at once.  As for the fate of the Corpus iuris civilis,

“Roman law as such, that is, as a system, had a very limited validity in western Europe when Justinian’s work was discovered in Italy.  The texts had disappeared. The terms had acquired new meanings. There were no Western counterparts to the Roman magistrates (praetors), legal advisors (jurists), or advocates (orators). The prevailing institutions were largely Germanic and Frankish.  Thus it was the body of law, the legal system, of an earlier civilization, as recorded in a huge book or set of books, that formed the object of Europe’s first systematic legal studies…The newly discovered texts of Roman law were copied and began to be studied in various cities of Italy and elsewhere near the end of the eleventh century.”11

From that point on, the Civil Law system became enriched by a number of subsystems, such as the Canon Law and the Commercial Law (or Lex Mercatoria), and the opinions of the Roman jurisconsults (mostly in the Digest) became commented by the “Glossators” and the “Post-Glossators”.12   In the sixteenth century took place the Reception of Roman Law by the Holly Roman Empire, which according with Berman: “…was in fact a movement to unify all the various kinds of law, including Roman law, within each polity.”13 Also in the sixteenth century “a unified and systematized law of contract emerged in Europe for the first time in the writings of European jurists, including German jurists…” the Scholarly Law or jus commune.14

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11 Berman, Harold Josep ; LAW AND REVLUTION. Harvard University Press, 1983. Pages 122 and 123.

The degree to which the study of law, in the Civil Law tradition, gave birth to one of the first and main faculties at European universities, and the roles that the jurists has played, leading, for example, to the so called “German legal science”,15 has led some to attribute a kind of rationalistic character to this tradition. 16   The natural law theories of the scholastics, to some extent, but more notably those of the enlightenment, are probably responsible for some of that.  However, when one turns to the reading works such as Lectures on Jurisprudence,17 which are a collection of Smith’s lectures on the law, A Short Introduction to Moral Philosophy,18 by Hutcheson, or The Writings of Gershom Carmichael,19 next to reflections closer to fields of theology, religion, or morality proper, one finds long discussions of the Civil Law on matters relating to goods (movable and immovable), real rights (easements, usufruct, possession, etc.), successions and inheritance, security interests, contract, torts and so on.

So one of the main points that I want to make here is that the roles of the jurisconsult, or more recently, the jurist, as a learned professional, an academic, a codifier of the law, have not signified, traditionally, nor have they implied, that the Civil Law system reflects any rationalist- constructivist order, where written invented statutory law delineates the profile of this legal tradition.  To the contrary, neither the Roman jurisconsults nor their later heirs, the jurists, have conceived their role as that of creators ex nihilo of any major part of their legal systems.

In the Preliminary Discourse of the French Civil Code, Portalis –one of the great jurists that submitted the draft— made it clear in these eloquent terms:

“But what a task it is the drafting of a civil legislation for a great people! The project would be above human forces, should the task be to provide that people with  a new institution, and if, forgetting that it occupies the first rank among the policed nations, one would disdain to profit from the exercise of the past and from this tradition of good sense, of rules and maxims, that has come to us and that forms the spirit of the centuries.”20 (The author’s translation)

________________________________

12 Merryman, John Henry ; Clark, David S.; Haley, John O; THE CIVIL LAW TRADITION. The Michie

Company, 1994. Pages 213- 238.

13 Berman, Harold J; LAW AND REVOLUTION II. Harvard University Press, page 127.

14 Idem supra at 156.

15For a discussion of this see Merryman et al; pages 476 to 502.

16 For a discussion of this see Merryman et al; pages 435 to 454.

17 Smith, Adam; LECTURES ON JURISPRUDENCE, LibertyClassics, Oxfort University Press 1978

18 Hutcheson, Francis; A SHORT INTRODUCTION TO MORAL PHILOSOPHY, Liberty Fund Inc., 2007

19 Carmichael, Gershom; NATURAL RIGHTS ON THE THRESHHOLD OF THE SCOTTISH ENLIGHTENMENT: THE WRITINGS OF GERSHOM CARMICHAEL, Edited by James Moore and Michael Silverthorne. Liberty Fund Inc., 2002.

It is important to note that the evolutionary process that led to the Corpus Iuris Civilis, and the one that took place from its rediscovery in the eleventh century, until the great codifications of the nineteenth century and thereafter, concerns mainly the private law. Thus, Leoni commented in Freedom and the Law that:

“On the other hand, it is well known to all students of Roman private law that, as Professor Schulz says, ‘the individualism of Hellenistic liberalism caused the private law to be developed on a basis of freedom and individualism.’ As a matter of fact, most of our contemporary Continental codes, such as the French, the German, and the Italian, were written according to the rules of the Roman law recorded in Justinian’s Corpus Juris. They have been labeled as ‘bourgeois’ by some socialist reformers.  So called social ‘reforms’ in European countries today can be brought about, if at all, only by modifying or canceling rules that very often go back to those of ancient Roman private law.”21

So, as will be discussed later, it is not inexact to say that the Civil Law system has been either a hurdle to constructivist, social engineering trends, or a victim thereof.  But it is obvious that there are several regions of the world where this legal tradition has not been able to contain these processes.  Much of this may be related to the lack or weakness of the subjective and objective elements of the rule of law, as I view them.  However, this following remark is, also, important to consider:

“The degree to which that system seeks to penetrate and control social life is often quite different from the extent to which it actually does so.  For example, large numbers of Guatemalans, Brazilians, Ethiopians, and Indonesians live much of their lives relatively free of any substantial contact with the official legal system, which actually applies with most force to an urban oligarchy and rapidly loses its power as one moves down the socio-economic scale and away from the major cities.” 22

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20 Portalis, Jean-Étienne-Marie; LE DISCOURS ET LE CODE, Portalis, deux siècles après le Code

Napoléon. LexisNexis Litec, Éditions du Juris-Classeur 2004. The text in French is as follows:

« Mais quelle tâche que la rédaction d’une législation civile pour un grand peuple ! L’ouvrage serait au-dessus des forces humaines, s’il s’agissait de donner à ce peuple une institution absolument nouvelle, et si, oubliant qu’il occupe le premier rang parmi les nations policées, on dédaignait de profiter de l’exercice du passé, et de cette tradition de bon sens, de règles et maximes, que est parvenue jusqu'à nous, et qui forme l’esprit des siècles. »

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21 FREEDOM AND THE LAW, at P. 83.

IV.      The Common Law System.

The Common Law System, just as the Civil Law System, has been nurtured by a variety of different sources over its some eight hundred years of existence. Its process of evolution has been complex and, at several points in time, its profile has been delineated by different characteristics.

It is not to be surprised that the Common Law System emerged from a political struggle between the king and powerful feudal lords, both aspiring to enhance their scope of power.  There was a kind of competitive environment by the cradle of the Common Law system, in the sense that those seeking justice often had more than one choice, and the possible alternative suppliers were keen to get their business and allegiance.  It is interesting, then, to note that:

“Litigants were not compelled to seek the king’s justice; only in matters touching  freehold did the Crown enjoy a monopoly over judicial business.  But because English subjects gave them business, gradually the medieval royal courts starved out, rather than crushed out, their competitors.”23

It is hard to imagine a better set of circumstances for a “good start”, than one where those running the system have to provide a service better than their competitors.  I think this is particularly true of a justice system, mainly because any monopolistic position may easily turn judges into a sort of tyrants. To provide a “better service” in this context means to be perceived by the community to be a more impartial arbiter of any dispute, to be more capable of laying down a better solution to any dispute, and to be more credible and predictable by the people at large.

I think that presently there is a more or less extended notion that the Common Law system not only achieved such good results since it originated, but also throughout its evolution, and that it continues to produce them at the present stage. Perhaps this more or less generalized conception of the Common Law system is captured in the following words:

“Throughout its long history the English common law has borne directly on the raw facts of daily life in English society. The rules of common law are social rules; never remote from life, they serve the needs of a society once feudal and agricultural but now industrial and urban. (…) The bond, then, between law and society is close and intimate, the history of the common law is matter-of-fact and rests ultimately on the relationships of people who have taken their differences before a court for settlement.”24

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22 THE CIVIL LAW TRADITION at pages 50-53.

23 Hogue, Arthur, ORIGINS OF THE COMMON LAW. Liberty Press, 1985. Page 19.

However, this view of the English common law leaves out of the picture a considerable series of “ups and downs” that not only help understand the system better, but also some of the reasons why it became part of a certain political doctrine of liberty and the rule of law.  John Maxcy Zane has dealt with this matter at some length, and I think that his observations are useful for the purposes of this essay.25 On the subject of what can be termed “formalism”, that is, a distorted and disproportionate attention to legal form over substance, Zane has the following remarks to make:

“The common law of England, which has been the subject of so much laudation, really does not deserve, mainly because of this conspicuous failure, the eulogiums that it has uniformly received from its practitioners.  About the year 1300 it became tied down by a number of wholly artificial restrictions which left it confessedly incapable of doing justice in a large number of legal relations, many of them of ordinary occurrence.  Another court assumed the abdicated jurisdiction in order to fill the gap and to remedy the admitted inability of the law courts.  This was called equity.  We in America have become so used to this monstrosity in law, that we do not see it in all its absurdity.”

“…All the money spent by England over hundreds of years in foolish dynastic wars to obtain or to preserve territory on the continent of Europe would not equal the incalculable sums that this double system of courts cost English litigants.”

“… It is apparent that the actual law of England was not administered in those matters by the common law courts, but was in fact determined by the rules of law in that court which had the power to pronounce the common law unrighteous and which enforced that power.  The law of England was in those respects most emphatically not the common law.”26

One possible reaction to these remarks would be to say that it is of secondary importance that the notion of “common law”, as it is understood today, does not correspond to its original characteristics but rather to a much later stage of its evolution.  However, this would miss the point that there might be a certain degree of myth, mixed with reality, concerning a good part of the earlier stages of the Common Law system.

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24 Hogue, Arthur R.; ORIGINS OF THE COMMON LAW. P 3.

25 Zane, John Maxcy; THE STORY OF LAW; Reprinted in 1998 by the Liberty Fund Inc.

26 THE STORY OF LAW, at 234-235.

“The chancellor was, with two exceptions during several centuries, a bishop or an archbishop, a great prelate of the Church. He knew something of the elevated spirit of the Roman law in its superiority to mere form and he had none of the rigid notions of the common law judges.”

And, on this issue as well: “Just as this period of two hundred years after the Conquest, about 1260, in the reign of Henry III, a great English law book was written by priestly judge whom we know as Bracton (…) Like all the lawyer-priests Bracton had considerable knowledge of the Roman law (…) With his material of cases taken out of the court rolls, Bracton, using the Roman Law and its classification, tried to fit into the field of law the English cases.” 28

As regards procedural matters, it is of no less historical curiosity that the Roman law “exceptions” were used, as they continue to be used in many continental European legal proceedings, in order to dispute the existence or not of the preconditions for a valid trial to take place:

“But the defendant might have exceptions, as they were called by the Roman law, to show why the plaintiff should not have a trial.  If his first statement of defense or exception –called later his plea—was not good, the court told him so and he tried another, until he had exhausted his matters of exception.  Then if he was not prepared to deny the plaintiff’s claim by saying that it was untrue, judgment went against him…”29

I am not trying to imply, nor do I think it would be a true statement, that the Common Law system has been praised, ultimately, thanks to the influence of Roman law during its initial stages of evolution.  Quite simply, the point is that those who view the English common law as distinctly “non Roman” law during its formative stage, are exaggerating or believing in a myth.

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27 The International Bank for Reconstruction and Development/The World Bank, DOING BUSINESS IN

2004. A copublication of the World Bank and Oxford University Press, at Pages 83 to 87.

28 THE STORY OF LAW, at pages 236, 238 and 239

29 Idem, at 239.

“…The statutes of Parliament were in Norman French.  The poverty of the vocabulary of these English dialects confined their use to the most ignorant people. Steadily, however, among the mass of the people was growing an improved speech compounded of Norman and English.  In the meantime the members of the legal professional class became narrower in their line of ideas.  The Pope forbade any priest to sit in the king’s courts and the king forbade the teaching of the civil law in England. England began her legal insularity, from which it took ages for her to recover.  The kind of law made by a narrow-minded, hidebound class of lawyers of this kind is sure to be tough and rigid law.  Law of all pursuits needs the illumination of general knowledge, but this by their environment was denied to the common lawyers.  The Inns of Court, where the law was taught, knew nothing but their own system. While the lawyers were acute and learned in this system, they were ignorant of all others.  The scholar Erasmus accurately described them as “a learned class of very ignorant men.”30

There is yet another mythical idea about the Common Law system, namely that, as opposed to other legal traditions (which is only partially true), it provides the blessings of a trial by jury. The institution of the jury, as it is known today, has little to do with the jury of the late Middle Ages and even later and its origins are, at best, problematic:

“We know now after long experience that such a method of the ascertainment of fact by a jury, wholly uncontrolled, was almost as great a stupidity as wager of law.” “…These jurors were the only witnesses.  They might talk with people out of court in order to gain knowledge of the matter.  They might get information out of court as they pleased, and they could not be questioned as to how they came by their knowledge of the matter.” 31

According with Zane, these fundamental flaws of the jury system remained in place for quite a while, such that: “Witnesses, generally speaking, would have been impossible before a jury until the latter part of the fifteenth century.” 32

Traveling in time to our age and circumstances, not only do we see juries operating in Brazil, France or Spain, but also that in a number of common law jurisdictions the parties may and do opt not to have a trial by jury concerning certain areas of the law. It appears additionally, that neither common nor civil law jurisdictions have been able to handle efficiently the ever increasing problems related to the adequate integration and operation of juries.

_______________________________

30 THE STORY OF LAW, at pages 250-251.

31 Idem, at page 254.

32 Idem, at page 258.

“Sometime between 1500 and 1560 came in another great change in the face of the law… The old system of oral pleading before the court was changed to the present system of putting in written pleadings …This revolution in the method of pleading was brought about quietly.  No one can tell the time when it was made.  The change was exceedingly unfortunate.  The system was of iron. A variance between the declaration and the proof was fatal.” (…)  “The common law had never cared much about justice and now it cared not at all.”33

This stage in the evolution of the English common law, up until more or less the Glorious Revolution, is considered critical not only by Zane but also by one of the admirers of the system, McIlwain.  In his words:

“Clearly a struggle was going on in England between will and law about the year 1539, and it was to last for one hundred and fifty years.  That it did not reach the phase of open warfare before the Stuarts is to be explained chiefly by the nature of parliament in the Tudor period.”34

And this observation brings us sort of full circle to the initial quote from Zane in this section, namely, that most of what has been praised today is not, strictly speaking, the common law. According with him, the critical circumstances of the period led to the Chancery to develop a whole new jurisdiction, Equity:  “The common law, by the year 1600, had been reorganized.  The general distinction between law and equity had been established…” (…) “Those who, like Coke, pretended to know what the old law had been, were making the most palpable mistakes.”35 Through the XVII century judges of every faction were removed and the institution of the jury abused, in addition to the recourse to bills of attainder by Parliament.  Towards the end of the XVII century.

________________________

33 THE STORY OF THE LAW, at pages 265-266.

34 McIlwain, Charles H., CONSTITUTIONALISM: ANCIENT AND MODERN; Liberty Fund Inc. 2007. Page 96.

35 THE SOTORY OF THE LAW, at page 269.

Thus, it is probably not an exaggeration to suggest that the golden age of the Common Law system, the main characteristics that have made it praise worthy, actually appeared or acquired a more definite profile by the end of the seventeenth century. These, coupled with the political currents and the intellectual revolution of the eighteenth century, including, of course, the principles and ideals that nourished the founding of the American republic, account for much of the fame of this great legal tradition.  Much more than the preceding four and a half centuries.

What are these characteristics? There are several perspectives from which to approach this question, however, one that is of peculiar interest for the purposes of this work is the fact that the common law, once it attained its mature personality, is the product of a decentralized process that, for the most part, focuses on the resolution of real life problems.

This is to say that, rather than a group of people laying down a set of rules in order to regulate any specific aspect of human life, according with their own opinion as to how things should ideally be, the common law is for the most part the product of the interaction between lawyers and judges in an effort to define how should a specific conflict or matter be resolved.

Therefore, to begin with, the lawyers and the judge are constrained by the facts and nature of the case.  They have to find a solution to the actual dispute they are handling, not to an idealized set of hypothetical circumstances.  Obviously this takes place within a contentious framework, where the proceedings are also important.

Additionally, the operation of the doctrine of stare decisis, that the solution that has been discovered becomes a precedent for future like cases, requires that it be integrated with other solutions or rules, laid down for issues in the neighborhood of the one that is being considered. This obviously requires a process of systematization of the rules, since it would be impossible to ignore the fact that each of the parties will invoke one or more previously existing rules in favor of their respective position.  Even if the claims asserted were founded on the inexistence of a rule applicable to the specific case that is under examination, it would be necessary to show how that is so.

In other words, it is impossible to create any set of legitimate expectations for the members of a community, a given jurisdiction, should each ruling be something like an island in a disconnected archipelago. Viewed from this perspective, the Common Law system would be a mirror that reflects the actual problems that individuals and their organizations face as they interact in the midst of society. It would also reflect the ways in which those problems have been sorted out by the courts.

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36 THE STORY OF LAW; at page 271.

Therefore, even in those cases where the role of the judges is of a secondary nature, their decisions can give statutory rules narrower or broader effects.  One of the methodological debates in the common law world is how strictly or loosely should judges construe the statutes passed by the legislature, and it is only worth referring to this debate here in order to point to the fact that the main characteristics and background of the common law, has not been an obstacle for the myriad statutes that are continuously promulgated in common law jurisdictions, and dealt with by the judges in their secondary role.

Another important feature of the Common Law System is its evolutionary character. By this I mean that the case law becomes developed only as the level of interactions in society, and their increasing sophistication, brings new or different kinds of disputes to the courts.  It is not conceivable that in a jurisdiction of a mostly rural society, a body of case law pertaining to industrial relations may reach any degree of sophistication.  At a global level, London and New York are often the choice of forum in case of a dispute concerning international transactions, because of the sheer cumulous of financial deals that have been taken to the courts their over the years.  It is hardly thinkable that any other jurisdiction would consider becoming a competitor of London or New York from even one decade to the next 37 See, for example, LAW, LEGISLATION AND LIBERTY, Vol. I, Page 119: “In their endeavor to cope with new problems by the application of ‘principles’ which they have to distil from the ratio decidendi of earlier decisions, and so to develop these inchoate rules (which is what ‘principles’ are) that they will produced the desired effect in new situations, neither the judges nor the parties involved need to know anything about the nature of the resulting overall order, or about any ‘interest of society’ which they serve, beyond the fact that the rules are meant to assist the individuals in successfully forming expectations in a wide range of circumstances.”

By way of synthesis, then, the Common Law system has a much brighter modern than mediaeval past.  Some of its early characteristics have been abandoned to the benefit of justice or for the sake of efficiency.  Just as any multi secular social system, it has received many influences, including from the Civil Law system.  Some can be considered positive, others not so.  Down its long process of evolution and development, it appears that the influence of new and radical –for the time—political ideas, starting from about the latter part of the seventeenth century, found in a reformed Common Law system a valuable instrument in order to provide society with a set of rules, of solutions, to real life problems through a decentralized, sufficiently depoliticized, and evolutionary process.  In this process, the role of the judges has been paramount, as the case law has become systematized and predictable.  Its predictability rests to an important degree on the doctrine of the “rule of precedent” and in the need for explaining in the very decisions of the judges, the reasons for any major departure from already settled questions of law.

V.       The Hayekian view of the dichotomy between Private Law and Public Law.

One of the main points in Law, Legislation and Liberty is that, upon the development of the doctrines of popular sovereignty, the notion that the law must be promulgated by the people through their elected representatives, created confusion in two ways. First, because it led to believe that the law –every law— can be the product of the legislative process, and second, because it led to confuse universal rules of just conduct with the rules of organization of government, as one and the same thing.  That is, to confuse private and public law:

“The distinction between universal rules of just conduct and the rules of organization of government is closely related to, and sometimes explicitly equated with, the distinction between private and public law. What we have said so far, then, might be summed up by the statement that the law of legislation consists predominantly of public law.  There does not exist, however, general agreement on exactly where the line of distinction between private and public law is to be drawn. The tendency of modern developments has been increasingly to blur this distinction by, on the one hand, exempting governmental agencies from the general rules of just conduct and, on the other, subjecting the conduct of private individuals and organizations to special purpose-directed rules, or even to special commands or permissions by administrative agencies.  During the last hundred years it has been chiefly in the service of so called ‘social’ aims that the distinction between rules of just conduct and rules for the organization of the services of government has been progressively obliterated.” 38

“If these regulations of the organization of government are widely regarded as being rules of the same sort as the rules of just conduct, this is due to the circumstance that they emanate from the same authority which possesses also the power to prescribe rules of just conduct.  They are called ‘laws’ as a result of an attempt to claim for them the same dignity and respect which is attached to the universal rules of just conduct.  Thus governmental agencies were able to claim the obedience of the private citizen to particular commands aimed at the achievement of specific purposes.”39

This double confusion bears directly on the problem of the rule of law, because its object is the law.  Let us look, therefore, to the definition of the rule of law given at the beginning of this work:

“… the rule of law is a regime where neither public officials nor any private individual can interfere with the free exercise, active or passive, of the rights as defined by law of any person; and it is a regime where all of this is determined by functionally and financially independent judges.”

To the extent that the specific meaning of “law” in this definition would refer only to the universal rules of just conduct, its ultimate consequences would be the operation of, basically, a classical liberal regime.  The objective elements of the definition, discussed above, point precisely to that.  If, on the other hand, the meaning of “law” would refer indistinctly to the universal rules of just conduct or to the rules for the organization of government, then governmental agencies, other individuals, anyone, could interfere with the exercise of the rights of any person in order, for example, for the achievement of any given public policy goal.

There are a wide variety of areas of the law (not in the Hayekian sense) where the public law –the rules of organization—have either discriminated between categories of people or of organizations, or have simply limited the scope for the exercise of the rights of certain categories of people, in order to achieve certain public policy goals.  Banking law, labor law, environmental law, consumer protection law, trade law, etcetera. So, to state the obvious again, the meaning of the rule of law really depends, at the end of the day, on the precise meaning of “law”.

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38 Hayek, Friedrich A.; LAW, LEGISLATION AND LIBERTY. The University of Chicago Press, 1979, Vol. I. Pags. 131-132.

39 Idem at 133.

VI.      The relative immunity of the major legal traditions to the expansion of Public Law.

What is the ultimate meaning of the expansion of public law? I think there are at least two possible answers to this question. First, that as modern societies become more complex and the frontiers of science, technology, and knowledge have expanded, a numerous areas of human interaction have also become more complex and new areas have emerged. This phenomenon has required, also, the expansion of governmental functions and activities in order to provide the necessary framework, or a better framework, in order to support the growth and dynamism of those areas in expansion or those new areas of human interaction.

For example, new kinds of rights over the radio electric spectrum have been created and this has required the organization of public agencies and procedures in order to police and enforce those rights.   Energy has become just another commodity and the public grid as just another “highway” to transport power all the way to the households of millions of people.  Private “energy highways” have been developed, sometimes using public property or infrastructures.  The railways once developed by the state to run publicly operated trains, are increasingly viewed as infrastructures to be auctioned by “time, frequency, and distance units” to the highest bidder.  Financial obligations of different kinds have become securitized several times over, such that the mortgage paid by a factory worker in Ohio ultimately becomes an asset of a bank in Dubai, Sao Paolo, Hong Kong or Zurich. Share certificates as such practically do not change hands any more. The vast majority of publicly traded securities in the securities markets are deposited with custodians around the world and new institutions have emerged that keep electronic records of who owns what and the transfers of shares are today no more than electronic book entries.

All these phenomena have required new or different sets of rules and public agencies in order to support, to the extent necessary, the market processes that have emerged and are becoming ever more dynamic in their evolution.

Thus, just as centuries ago some kind of public registry emerged in order to keep information as to who is the owner of what rights over any particular piece of land, and as the county or the state have protected those rights from unlawful trespassing and usurpations, a few decades ago new kinds of agencies and policing systems have emerged with analogous purposes.

The public law –mostly administrative law—that has been developed in order to support these phenomena, and to enforce the private law rules and the rights created on the bases of their provisions, serves a valuable function. Particularly where it does not impede the emergence of private solutions.

Therefore, in one sense at least, the expansion of public law can be seen as another good consequence of the expansion of human creativity and the interaction of millions of people around the world.  This expansion is to be, generally speaking, welcome and supported.

But the second answer to the initial question is quite different.  The public law has also expanded to limit, not to support, the free operation of markets.  It can be argued that sometimes this expansion has occurred with the purpose of protecting certain groups of society viewed as essentially weaker.  Thus, for example, labor law regulations have developed with the stated intention of protecting the workers and “their” organizations from the abuses of employers. Consumer protection law purports to provide protection against the abuses of mass suppliers of goods and services and, of course, banking and financial regulations –particularly these days—are supposed to protect the public’s savings and the system from the greedy bankers.  Other times the public law has become expanded in order to protect what humankind has been given or has created itself over the ages.  Thus, environmental laws and regulations are promulgated with the announced intention of allowing for sustainable development without harm to the environment and there are ever increasing regulations concerning historical, cultural and artistic monuments and even intangible goods. The law and regulations of publicity and advertising are said to protect the public from misleading or dangerous materials, just as the regulations concerning urbanism are supposed to avoid that cities grow to the detriment of the quality of life of those who dwell in them.

Thus, the traditional notion that the government is there to regulate and exercise basic “police powers”, that is, public safety, health, and order, has been blown into a huge variety of public law regulations and the respective functions and powers for a myriad new agencies of government.  In this sense, the ultimate meaning of the expansion of the public law is the expansion of state power over and to the detriment of individual freedom. Freedom under the law, in the Hayekian sense.

This last statement is not one of value, but one of fact.  The expansion of the public law, in this second sense, has meant that individuals or their organizations cannot interact as they might choose under the private law, because there are a vast number of public law regulations that will simply not allow them to, partially or totally.

But another matter of fact is that, many times, behind the alleged purposes or intentions to protect the weaker or humankind against itself, it is the special or private interest groups that lobby through and obtain protectionist or anticompetitive regulations, when not outright subsidies or privileges.  A WTO panel has just ruled in favor of Brazil on its claim against cotton subsidies by the United States government.

None of this is really a novelty or any special way to explain it.  The question whose answer may still be rather blurry and requires further reflection is the following: is any of the Common Law or the Civil Law systems more or less immune, as such, to the expansion of the public law? That is, to the expansion of the public law that basically amounts to greater and more pervasive governmental interference with the rights of individuals under the rules of private law?

One possible way to approach this question is to try to draw a correlation, as the one drawn by the Doing Business In publication mentioned in a previous section, between those countries around the world that have remained relatively freer and what their legal system is.  This might provide some useful information and could well prove that, at a certain point in time, or through a specific period of their history, either of the two systems did not provide a number of jurisdictions, or countries, with an efficient barrier to the expansion of the pubic law, in the second sense. If, for example, one would try to define this correlation for the years immediately preceding the Thatcher era in the United Kingdom, one would very probably have to draw the conclusion that the Common Law system cannot be relied upon as a sufficient barrier to this expansion.  If the same analysis would be made concerning, for example, Chile a few years after the “Chicago boys” were brought on board to run the country’s economy by Pinochet, one would probably have to say that the Civil Law system can be relied upon in order to reverse a process or period of expansion of the public law.

However, I think that those propositions would be based on extremely thin connections.  In order to use this methodology it would probably be necessary to look at much longer periods of time, three or four centuries long, and see how each one of the Common and the Civil Law systems played out in the respective jurisdictions where they operate. Perhaps from the perspective of works such as Law and Revolution, The Constitution of Liberty, Freedom and the Law; Law, Legislation and Liberty, or The Story of Law one draws the conclusion that there has been an interplay between each one of the two major legal traditions of the Western civilization, and the general ideological, philosophical, and political ideas that have prevailed at different points in time. The nature of this interplay may be described as one of reciprocal influence, but as a matter of fact, neither the Civil Law nor the Common Law systems have prevented, barred, or conjured violent revolutions or even the emergence and development of the theories and ideas that led, ultimately, to such revolutions.

There is one aspect, however, concerning both of these legal systems, that defines each one of them in a particular way, that would have to disappear if the expansion of the public law in the second sense explained here would reach a certain point.

In this sense, I am putting forward the proposition that the essence of both the Civil Law and the Common Law systems is contrary to the expansion of the public law beyond a certain point, lest the system essentially disappears in the two cases.

I am referring to the fact that both systems developed and became characterized by their rapport to the social substratum in its multiple manifestations. Therefore, it would make very little sense to speak of the Common Law system where the role of the judges, in general, would be only, at best, secondary.  This is to say, in a situation where the rules would practically be laid down exclusively by a group of people in some sort of representative assembly, where power is brokered and special interests are negotiated, and the judges do not have more duties and powers than applying and construing, strictly, those rules and giving them specific meaning in the presence of obscure cases.

In other words, it is of the essence of the Common Law system that real life cases be brought, from their very roots, to the common law courts and that the common law judges try to find a “rule/solution” for the case.  Either a totally new one or one that is a variation of a previous rule/solution that does not fall squarely on the facts of the matter.

A system where the judge cannot but look for a rule that has been defined by a representative assembly, some kind of governmental agency or so, in any fashion or through any specific proceeding, could not possibly be conceived of as being a Common Law system.

It is highly improbable that in mature Common Law system jurisdictions a constitutional rule would one day be promulgated, with the effect that judges, in general, would be barred from looking at the social substratum in order to develop or adjust a rule/solution, in order to resolve the controversy brought to its attention.  However, the expansion of the public law, in the second sense discussed here, does have a similar effect. The point is that, in the Common Law system, a judge cannot ignore any formally valid legislative statute or administrative regulation, and go directly to the social substratum and/or previous common law rules, in order to deal with the matter at hand. It is true that, in their secondary role, courts can and do temper the excesses of legislated rules or administrative rules that, simply, do not play well within the system.  This, however, is not enough to maintain the essence of the system.

As regards the Civil Law system, something analogous occurs.  The jurist cannot be confined to operate, only, with the rules produced by a legislative assembly or by a regulatory agency, ignoring reality or the social substratum. The private law cannot be invented through any such mechanisms, lest a major dissociation between the set of promulgated rules and life in society should take place. The representative assembly may undertake to derogate the Civil Code and to write a new one, according to no matter what ideal plan.  This would tantamount to the emergence of a legal system other than the Civil Law system, because it is of the essence of this latter that the private law becomes developed on the basis of the study and analysis of real life problems, which require rule/solutions that conform to the general order, in addition to providing that: as solution to the problem.

Here, also, the growth of legislative enactments and regulations by a variety of the agencies of the state may force the role of the jurist into a mere technician, knowledgeable of the legislated rules and capable of providing commentary thereof.  But this would be a caricature of the Civil Law system jurist just the same as a judge that is reduced to a legislated rule “mechanic applier” would be a caricature of the Common Law system judge.

VII.     Conclusions.

Unfortunately it would appear that neither the Civil Law nor the Common Law systems have been, nor can be, immune to the expansion of the public law.  Their original and essential vocation to deal with and provide rules/solutions to real life problems, have not been enough to curve the growth of the Legislative/Administrative State.  Moreover, jurists and judges alike have over time supported this growth.  Thereby some of them have contributed to the erosion of the ideal of the rule of law, at least as it is defined in this essay.

It is not possible to determine to what extent the traditional or characteristic traits of each one of these major legal traditions have deterred an even greater erosion of the ideal. Negatives cannot be proved.

Perhaps one thought for future reflections and inquiry is warranted here.  I have tried to emphasize the most important connections of the Common Law and Civil Law systems to the ideal of the rule of law.  This is that, without a certain notion of the meaning of “law” the operative consequences of this ideal can be very different and not always desirable.  The traditional notion of “law”, as a system of rule/solutions to real life problems, which is at the very core of both of these legal systems, at least in their classic form, basically conforms to the meaning of “law” required for the ideal of the rule of law to, at its turn, reflect the classical liberal ideal.