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The great aim of the struggle for liberty has been equality before the law.
The term rule of law, since reformulated by A.V. Dicey in the 19th century, has traditionally meant to include such notions as supremacy of standing law over arbitrary power, equality before the law (which applies also to government officials), and a binding constitutional framework. In the broader context of Hayeks work in political philosophy, his idea of equality is meant to incorporate these notions. The following essay sketches out some highlights of the struggle for this ideal, and then address the role that equality before the lawand the rule of law more generallyperforms in allowing modern civilization to prosper.
In The Constitution of Liberty Hayek explains that only equality before the law, and not equality of outcomes, is consistent with a free society. Material inequality is in fact a necessary by-product of freedom. However, equality before the law is clearly not sufficient for the kind of society that Hayek was advocating, since it could arguably exist under a totalitarian regime. It must exist as part of the rule of law, or a meta-legal doctrine or political ideal that puts limitations on what laws ought to be.
The notion of equality before the law arose soon after government was established in its earliest form, for it only makes sense once people move out of family or small tribal communities into larger, impersonal societies. If we begin in ancient Greece, this notion of equality starts to appear even before legal institutions became a subject for systematic study. Aristotle spoke of the rule of laws instead of men, and Pericleswhom Hayek quotes approvinglythought this to be a distinguishing characteristic of Athens. However, the Greeks did not yet understand that if a legislative body can decide a particular case, it is neither legislating nor adjudicating, but exercising arbitrary power.
Nor was this fully understood by the Roman Republic, although as this was the beginning of law in its modern sense, some of its weaknesses might be forgiven. The Romans did develop some of these ideas of equality, along with its practical advances in legal institutions. The failure of Greek law, by contrast, was the lack of a competent tribunal to apply the private law to its citizens. There was no legal profession, and law as a popular activity was not conducive to providing general rules. These defects were partly remedied in Rome, and [t]he result, according to Zane, was that among the Romans there was a rule of law. Courts began the process of resolving particular cases according to general rules, and writers such as Cicero argued that not all enacted laws are necessarily just. Although Rome was a hierarchical society, Hayek admired the late republican period for its advances, until these were reversed during the Empire. The emperors of Rome decreed themselves to be above the law (something which would be reincarnated many times in European history), but even they felt the need to justify their power as coming from the will of the people.
The idea of the rule of law would survive howeverif a bit bloodiedthrough the Germanic kingdoms of the Dark Ages. In early medieval political theory, which was dominated by the Church, rebellion against the king was not permitted, but the idea of the king being bound by the law was seen throughout the period. The rule of law was emerging, and England took its role as the leader of this tradition. The Magna Carta was the first step in a process that would culminate in the Glorious Revolution nearly a half-millennium later. Of course even England did not realize the ideal of individual liberty during this long evolutionary period, but it was developing a legal tradition that would set it apart from the Continent.
Following Hayek, we can jump ahead in our story, as individual liberty in modern times can hardly be traced back further than the England of the seventeenth century. And as J.M. Kelly noted, [Equality before the law] is a value which, in a Europe full of privilege, found a full expression only in the voice of the English revolution. The ideas were heard most clearly from the Levellers during the English Civil Wars, and then from Locke, whose most influential works would come after the Glorious Revolution. The sole function of the government, according to Locke, was the protection of property in the broad sense, meaning lives, liberties and estates. And even though he would endorse majority rule, he also argued that the legislature should not have arbitrary power. Also notable in this century was a conception of natural rights that focused on individuals rather than social duty, as well as a secular rather than theological foundation. Outside of England, for example, Pufendorf would anticipate Kant: Let no one act towards another in such a way that the latter can justly complain that his equality of right has been violated.
In the 18th century, we begin to see the split in intellectual traditions that Hayek often addressed. The rationalists, most notably in France, wanted to start anew and base everything on reason, while the thinkers of the Scottish Enlightenment (whom Hayek admired so much) did not, but instead wrote of establishments which are indeed the result of human action but not the execution of human design. It was in fact the unintended consequences of the early rationalist view that led to setbacks for liberty, rather than a deliberate strategy advocating centralized power. During this time, the call for laws to be subject to reason was a reaction to the arbitrary rule and privileges of the elite, so the intentions of these writers and activists were consistent with what would become classical liberalism. Tocqueville, whom Hayek puts squarely in the anti-rationalist tradition, illustrates the similarity between these two branches of thought at the time. In summing up the theme of the Enlightenment writers, Tocqueville writes:
They all started with the principle that it was necessary to substitute simple and elementary rules, based on reason and natural law, for the complicated and traditional customs which regulated society in their time...The whole of the political philosophy of the eighteenth century is really comprised in that single notion.
It was only when the rationalist vision was brought to its logical conclusion in the French Revolution that it became antithetical to liberty. Edmund Burke would become a fierce critic of the Revolution and its intellectual foundations, and his claim for the superiority of organically grown systems over those designed in the name of reason would be repeated by Hayek.
The rationalist school of thought would continue to have great influence, and it led to the codification of laws in continental Europe and the reform movements from the 19th century to the present day. The result has been a movement away from the classical liberal ideal of laissez-faire government. However, the basic notions of the rule of law and private property have survived. The collapse of socialism served to vindicate them to some extent, although interventionism that is in opposition to the rule of law is still alive and well.
Finally, Hayek and others saw the early United States as taking over the tradition of individual liberty from England, as the colonists objected to the increasingly arbitrary power of the British Parliament. They saw the necessity of a written constitution to limit the power of any particular branch of government, and saw it also as laying down general principles to prevent arbitrary rule. It so happens that this attempt at division of powers has not succeeded, nor did the attempts to limit legislative power to strictly enumerated functions, but certainly the intentions of the Framers were in line with this classical liberal tradition. An important point is that despite appearances, the American constitution was not a product of the rationalist French tradition, as the government emerged from general principles and its structure even a few years later could not have been anticipated by its framers. While there are many examples when the legislature and courts have ignored these general principles, there survives something of a consensus that prevented an even greater encroachment of liberty. The U.S. experience has been another in the long line of imperfect experiments in forming a free society.
The Functions of Liberty
According to Noel B. Reynolds, The rule of law is a solution to a problem, and as the classical liberal tradition has always recognized, the problem is tyranny. Hayek would hardly disagree, but incorporating his insights on how markets work, he saw the fundamental problem solved by a free society to be the use of dispersed knowledge that can never be known to a centralized body. Giving people equal opportunities to use their knowledge for their own ends not only fulfills the Kantian maxim of respecting the autonomy of the individual, but is how society adapts to new conditions and discovers new ways to live. As Hayek put it, a condition of liberty in which all are allowed to use their knowledge for their purposes, restrained only by rules of just conduct of universal application, is likely to produce for them the best conditions for achieving their aims.
This may seem uncontroversial, but the opposing mindset tends to ask the question: Why shouldnt the government attempt to use our inherited knowledge of society and scientific method to improve on institutions that have evolved without conscious direction? The fact that many people, and especially our political leaders, would surely think this to be a reasonable goal shows that Hayek was not merely arguing against a straw man, nor was his analysis only appropriate for central planning of the early 20th century variety.
It should be pointed out that the formula equality before the law is not a simple guide to policy, nor is anything like laissez-faire or respecting private property. So the question is how to define the private sphere of action in which individuals can use their own knowledge for their own ends. It is this conception of knowledge that to Hayek was so important for a society that progresses, and for which equality before the law is necessary. In most of his writings, Hayek was more concerned with the process in which this these limits were decided, rather than laying out the proper functions of government in any detail. This is why he often advocated the adjudication by courts as opposed to legislation; the former is more adaptable, more likely to incorporate local knowledge of the parties involved, and less likely to result in restrictions on parties not involved in a particular dispute.
Buchanan takes a similar approach:
Each man counts for one, and that is that...Once this basic premise is fully acknowledged...[a] criterion for betterness is suggested. A situation is judged good to the extent that it allows individuals to get what they want to get, whatsoever this might be, limited only by the principle of mutual agreement. Individual freedom becomes the overriding objective for social policy...
The alternative to this is to use the subjective valuationsusually in the guise of objectivityof some particular person or group. Yet Buchanan also argued that anarchy was not practicable. So for him the question was also how to define the limits on freedom, and he also places emphasis on the (individualist) process by which this is determined, rather than specific outcomes.
The rules defining individuals protected domain must solve certain problems that are inherent in a modern society. Besides the division of knowledge, there is the tendency for people to favor their own interests, and also the problem of power, or enforcement abuse. The latter refers to problems inherent in allowing a monopoly on coercionin other words, the erroneous or improper use of force. The rule of law is the most effective way yet discovered to deal with all of these issues. A proper conception of this ideal leads to a process for delimiting private property and enforcing contracts, which allows individual knowledge to be used effectively and for disparate aims to be reconciled. In particular, the process consistent with this is an evolutionary growth of law guided by general principles, hence the emphasis on adjudication by courts.
To take a more concrete example, consider the provision of public goods. It is often claimed that government is necessary to overcome the free-rider problem. To argue this, however, it is not only necessary to show that free-riding is sub-optimal, but also that taxation and government provision is an improvement. This is not obvious once you consider the knowledge and interest problemsthat is, in not using local and individual knowledge that may be able to provide this good, and ignoring the incentives faced by government officials. Private property and freedom of contract, which is part of the framework that naturally evolves from the conception of the rule of law, do provide incentives (however imperfect) to solve the free-rider problem.
It is important to keep in mind that even Hayeks richer development of the notion of the rule of law may not be enough to guarantee a liberal society. The conditions of generality and abstractness of law that he emphasized can conceivably occur in a non-liberal regime, and Hayek was led to make concessions to government intervention that would likely be rejected by many other classical liberals. This is part of the reason to emphasize the historical development of the rule of law, as Hayek was always aware of the evolutionary nature of changes in society. This is also why Barnett, who argues for the classical liberal rule of law along with a polycentric legal order (i.e. one without a coercive monopoly), points out that whether this order will be liberal will depend on how it comes abouta violent overthrow is likely to have different consequences than a peaceful reform movement.
No one is suggesting that issues of path dependence, evolved cultural differences, and entrenched interest groups are problems to be ignored when it comes to reform. The failed attempts to transplant Western institutions to other countries make that abundantly clear. But of the ways that people have tried to organize themselves in society, the most successful have followed, at least in part, this classical liberal tradition. How these foundations can be improved even further, and how to implement and maintain them in different societies, are questions that are still seeking answers.
Just as private property benefits even those who dont own any, we might also say that equality before the law also benefits those who never need to exercise it, or are blissfully unaware of it. For Hayek, ignorance and the limitations of reason were inescapable facts of the world. But he put great importance on the battle of ideas, and to understand liberty requires knowledge of the rule of law.
 F.A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 85.
 See Todd Zywicki, The Rule of Law, Freedom, and Prosperity, Supreme Court Economic Review, Vol. 10, 2003, pp. 1-26.
 Even more insightful is Hayeks explanation of how inequality is necessary for experimentation and progress. See Hayek, supra note 1, at pp. 42-49.
 See Ibid., at 205-210 and F.A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1972 ), ch. 6.
 As Zane put it, In order to insure equal laws it was found, long ages after the Greeks and Romans, that the judicial power must be separately and independently exercised. John Maxcy Zane, The Story of Law, 2nd. ed (Indianopolis: Liberty Fund, 1998), p. 105.
 Hayek, supra note 1, at 162.
 J.M. Kelly, A Short History of Western Legal Theory, (Oxford: Clarendon Press, 1992), p. 236.
 Quoted in Ibid., p. 226. For Hayeks emphasis on Kants importance, see Chandran Kukathas, Hayek and Modern Liberalism, (Oxford: Clarendon Press, 1989) and Hayek supra note 1, at pp. 196-197.
 See in particular, Individualism: True and False, in F.A. Hayek, Individualism and Economic Order, (Chicago: The University of Chicago Press, 1948).
 Adam Ferguson, quoted by Hayek supra note 1, at p. 57.
 Quoted in Kelly, supra note 9, at p. 251.
 F.A. Hayek, Law, Legislation and Liberty, Vol. 1: Rules and Order, (Chicago: University of Chicago Press, 1973), p. 1. See also James Buchanan, The Limits of Liberty: Between Anarchy and Leviathan, (Indianapolis: Liberty Fund, 2000 ), p. 19. Hayeks point of course is not that all checks have been eliminated, but the conclusion hardly seems as controversial as it might at first glace, given a casual investigation of Congressional acts or popular beliefs about states rights vs. centralized power.
 Hayek supra note 1, at pp. 183-84.
 Hayek writes approvingly of the Supreme Courts rejection of FDRs attempt at accumulating discretionary powers for specific ends. See Ibid., pp. 190-91.
 Quoted in Zywicki, supra note 2, at p.5.
 For Hayeks classic exposition of the role of knowledge in the price system, see The Use of Knowledge in Society, in Hayek, supra note 11.
 Hayek supra note 13, at p. 55.
 Bruno Leoni made similar points in arguing against legislation. See Bruno Leoni, Freedom and the Law, (Indianapolis: Liberty Fund, 1991), pp. 6, 22.
 Buchanan, supra note 13, at p. 4.
 See Randy Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Clarendon Press, 1998), and Hayek supra note 13, at p. 107.
 For the preceding discussion, see Barnett, supra note 21, at pp. 162 ff. The point is similar to Demsetzs distinction betweeen the nirvana approach and the comparative institution approach. See Harold Demsetz, Information and Efficiency: Another Viewpoint, J. Law Econ., Vol. 12, No. 1 (Apr., 1969), pp. 1-22. For some classic examples of market solutions for provision of public goods and solving externality problems, see Ronald Coase, The Lighthouse in Economics, J. Law Econ., Vol. 17, No. 2 (Oct., 1974), pp. 357-76, and Steven N S Cheung, The Fable of the Bees: An Economic Investigation, J. Law Econ., Vol. 16, No. 1 (Apr., 1973), pp. 11-33.
 For some of Hayeks (sympathetic) critics on this point, see Kukathas, supra note 10, and Norman Barry, The Tradition of Spontaneous Order, Literature of Liberty, Vol. V, No. 2 (Summer 1982), pp. 7-58. One example of Hayeks controversial policy positions is his view on compulsory military service; see Hayek supra note 1, at p. 143.
 As a response to this general line of criticism, Barnett argues throughout his book that the formal requirements of the rule of the law do place limits on substance.
 For path dependence and the role of institutions, see Douglass North, Institutions, Institutional Change, and Economic Performance, (Cambridge: Cambridge University Press, 1990), esp. ch. 12.
 See Hayek supra note 13, at p. 121.
Crime and terrorism cannot be eliminated by harsh and draconian laws, which will curb liberty, violate the Constitution, and impede India’s scientific and economic progress.
In view of the recent incidents of terrorism in some places in India, some people have started saying that to combat terrorism it is necessary to curtail civil liberties and introduce draconian laws. To my mind, this is a dangerous idea. Hence it is necessary to explain the importance of liberty and democracy for our country’s progress. Nobody denies the need to oppose terrorism. But in my opinion, by passing draconian laws, terrorism and crime will not be reduced. Instead our country’s progress will be obstructed.
What is our national aim? It must be to make India a highly prosperous country for all its citizens, not just for a handful of people of our country. For that, it is necessary to have a high degree of industrialisation.
Even setting up and running a single primary school requires a lot of money, for buying land, erecting the school building, and providing for the recurrent expenditure for salaries of teachers, staff, and so on. We need to set up not just one but hundreds of thousands of primary schools; tens of thousands of high schools and colleges; and engineering colleges, technical institutes, medical colleges, scientific research centres, hospitals and libraries.
Where is the money for all this to come from? It can only come from a highly developed industry. Rapid industrialisation alone can generate the wealth we need for the welfare of our people; abolish poverty and unemployment, which are the main causes of crime and terrorism; and give us respect in the world community.
For industrialisation, the development of science is absolutely necessary, and for that freedom is absolutely necessary — freedom to think, freedom to write, freedom to discuss with others, freedom to explain, freedom to criticise, and freedom to dissent.
Need for supportive values
The growth of science requires certain supportive values, particularly liberty. This is because the thought process cannot develop without freedom. The values of a scientific community, namely pluralism, tolerance, individual freedom, and free flow of information, are very similar to the values of democratic society (see Science and the Making of the Modern World, by John Marks, Heinemann, 1984).
A democratic society permits freedom of speech and expression, freedom to practise one’s own religion, which is based on tolerance, and freedom to dissent and criticise. These are precisely the values of the scientific community. In scientific matters authoritarianism and dogmatism are wholly out of place. Scientists must be left to govern themselves, and have large amounts of freedom, which is necessary for innovation and creativity. Democracy and liberty go hand in hand with the growth of science because both are based on tolerance, individual freedom, and the free flow of ideas. In democracy, as in a scientific community, there is freedom to speak, freedom to discuss, freedom to criticise, and freedom to dissent.
As early as 1927, Justice Louis D. Brandeis, of the U.S. Supreme Court observed in Whitney vs. California 274 U.S. 357: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary…They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form.”
In 1949, Justice William O. Douglas in Terminiello vs. Chicago (337 US 1) made a crucial point when he noted that a “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
Function of free speech
The method of Shastrarthas was developed in ancient India. These were debates in which the thinkers of those times had full freedom to speak and to criticise their opponents in the opponent’s presence, and also in the presence of a large assembly of people. There are thousands of references to such Shastrarthas in our epics and other literature. It was this freedom to freely discuss and criticise that resulted in a tremendous growth of knowledge — in philosophy and grammar but also in scientific knowledge in mathematics, astronomy, medicine, and so on. The names of Aryabhatt, Brahmagupta, Bhaskar, Sushrut, and Charak are well known. With the aid of science, we built mighty civilisations, beginning with the Indus Valley Civilisation at a time people in Europe were living in forests.
Modern European history is also instructive. England was the first country in the world to industrialise and modernise. This economic process was accompanied by the political struggle for liberty and democracy in the 17th and 18th centuries, which was particularly a struggle between the King and Parliament. Parliament’s triumph laid the foundation of freedom and civil liberties in England, which was necessary to create the atmosphere science needs to prosper. In pre-revolutionary France, the thinkers of the Enlightenment — Rousseau, Voltaire, Diderot, Holbach, and several others — who attacked feudalism and religious dogmatism paved the way for the Revolution of 1789, which destroyed feudalism and led to scientific progress.
On the other hand, in Italy, Spain, and some other countries, the Inquisition stifled free thinking and thereby scientific growth. All scientific ideas not consistent with the Bible were regarded as crimes, for example, the theory of Copernicus, which stated that the earth moved around the sun and not the sun around the earth. As a result, these countries were left far behind England and France, and remained in the feudal dark ages for centuries.
The struggle to establish the scientific outlook was not easy. Scientific ideas were initially condemned because they were regarded as opposed to religious dogma. Voltaire and Rousseau had to fly for their lives to other countries. The Church persecuted the greatest scientists with blind cruelty, burning them at the stake (for example, Bruno), torturing them (for example, Galileo), and forbidding or destroying their works. As recently as 1925, the teaching of Darwin’s theory of evolution was forbidden in the state of Tennessee in the United States and a teacher, John Scopes, was tried in the famous ‘Monkey Trial’ for teaching that theory. For centuries, the Church in Europe played an extremely reactionary role and fought pitilessly against the scientific conception of the world, and against the democratic movements.
In India, if we are to progress and rise as a world power, we must spread the scientific outlook to every nook and corner of our country, and destroy the superstitions, for example, the belief in astrology and palmistry, and the feudal ideas of casteism and communalism.
Science is that knowledge by which we can understand nature (and human society) and use the knowledge for our benefit. For doing so, the scientists rely on reason, observation, and experiment. This obviously cannot be done on the dictates of anyone (though the government can certainly create the atmosphere where these can flourish). Science and democratic values go hand in hand.
In science, there is no final word, unlike in religion. Science questions everything and does not take anything for granted. Obviously, this approach is not permitted in an undemocratic society, for example, a feudal society (which is governed by religion) or a fascist society (in which there is a dictator). Thus, Hitler, with his Nazi racial philosophy, caused an enormous setback to science in Germany by persecuting Jewish scientists and banning their works (for example, Einstein). We have, no doubt, to oppose the terrorism of modern times, which is, in fact, medieval obscurantism. What else is the bombing of schools or the closing down of existing girls’ schools by the Taliban? But to fight such terrorism, we must not give up our modern values of liberty and freedom. Obscurantism can only be opposed by modern scientific thinking.
In India, after the Constitution was adopted in 1950, there was an atmosphere of liberal freedom in view of the fundamental rights guaranteed by the Constitution: the right to free speech (Article 19), to liberty (Article 21), to equality (Articles 14 to 17), to religious freedom (Article 25), and so on. This helped the growth of science and technology, because it created an atmosphere of freedom where people, including scientists, could freely discuss and dissent. If we compare our country with our neighbours, it becomes clear that they lagged far behind in economic growth precisely because such freedoms were lacking.
Further, the advanced sections of society who want to take the country forward, and have the knowledge to do so, must have a lot of freedom to discuss, debate, and criticise each other. They are the pioneers and are entering into a new field, much of which is unknown. Hence, they must have freedom to think, discuss, and criticise.
Freedom to dissent
As John Stuart Mill argued in his celebrated essay ‘On Liberty,’ all progress, the advancement of knowledge and progressive change, and the improvement of old ways of thinking, old behaviour patterns, habits, customs and traditions can come only from free individual dissent, dissensions, and innovations, which are at first usually resisted by inert or conservative people (usually the vast majority), and by free competition between the old and new ideas. Ordinarily in any society, he pointed out, the majority shares old thoughts and traditions. There is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissent and innovation, and to tolerate only what the majority agrees with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative, tradition-bound majority, is indispensable to progress. The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even against the governing majority, is essential for progress.
The importance of the judiciary in India needs to be highlighted in this connection. In two key decisions, Govt of A.P. and others vs. P. Laxmi Devi [2008 (4) SCC 720, JT 2008 (2) 639] and Deepak Bajaj vs. State of Maharashtra and others [JT 2008 (11) SC 609], the Supreme Court of India has emphasised the importance of liberty for progress, and observed that the judiciary must act as guardians of the liberties of the people, protecting them against executive, or even legislative arbitrariness or despotism.
India needs democracy and scientific knowledge, and that means patiently spreading scientific ideas among the vast masses, raising their cultural level, and involving them actively in the task of nation building.
To my mind, harsh and draconian laws will curb liberty. That will not only violate the right to liberty granted by Article 21 of the Constitution. It will also lead to great evils such as an increase in corruption in the police and other law enforcing agencies, which will have much more opportunity to extort money from the citizens, apart from impeding scientific and economic growth.
To my mind, crime and terrorism cannot be eliminated by draconian laws. They can be eliminated only by the abolition of poverty and unemployment, which are the main sources of crime. Only rapid industrialisation can abolish poverty and unemployment, which will largely eliminate crime and terrorism.