Playing by the rules

The status of the liberal tradition has occasioned much heated controversy of late, including the accusation that it has failed—that its very success is its nemesis. But the liberal tradition, like any living tradition, comprises a wide range of elements, and attempts to define it in the service of an argument—in support or in opposition—risk oversimplification. Nadia E. Nedzel (Southern University Law Center) and Nicholas Capaldi (College of Business, Loyola University New Orleans) avoid such abstract definitions. They focus specifically on the “rule of law” as a cultural practice in the Anglo-American tradition, and as a great achievement in modern politics.

Any comprehensive treatment of the liberal tradition must include certain features, such as individual liberty, limited government, the rule of law, and the historic transformation in the Western world from political orders based on command and obedience to those based on authority and acknowledgment, which is to say, government based on consent. This book offers a detailed exposition of the idea of the rule of law as it emerges in Anglo-American history, and as it appears in the living practice of the English-speaking world. The role of law, they say, “is to define the rules that enable individuals, who have their own ends and commitments, to live in peace and voluntary cooperation with their fellows.” They elaborate on this basic idea to illustrate what the rule of law can mean in observable, concrete circumstances.

Nedzel and Capaldi argue that the idea of the rule of law has been indispensable to the promotion of human freedom. They describe in detail what the rule of law has actually meant in the practices of Anglo-American society. Against this, the authors also describe the modern legal theories that are fundamentally threatening individual liberty.

Nedzel and Capaldi oppose what they call “social technology,” the sort of social engineering expounded, for instance, by Woodrow Wilson in his 1913 work, The New Freedom, which specifically adopted the metaphor of engineering or re-engineering the social order to achieve the orderliness of a “beehive.”

Legal positivists like H. L. A. Hart and Hans Kelsen (among the numerous objects of criticism here) were a good deal more subtle than that, and John Rawls, also a target, was more restrained (he did say the first principle is liberty). Our authors, however, think that these and other leading legal theorists see the concept of freedom as participation in a highly integrated social organization requiring the aggregation of governmental power to implement putatively scientific designs. They distinguish between “rule of law”—promoting individual freedom as self-regulation—and “rule through law,” which emphasizes “community” and is characteristic of Continental legal theory.

“Rule through law” has worked its way into the Anglo-American tradition.

Central to their argument are the works of Friedrich Hayek and Michael Oakeshott. Hayek, defending the idea of the rule of law, expressed concern that the old constitutional structure of separation of powers had failed to contain the growth of minute bureaucratic regulation through administrative law that contradicts the traditional understanding of the rule of law. “Rule through law” has worked its way into the Anglo-American tradition. The authors, in turn, offer extensive commentaries in defense of a crucial aspect of our tradition against a conspicuous intrusion into that tradition. They argue that though the rule through law has become familiar, it is foreign to our tradition.

Oakeshott described the tension between a skeptical attitude towards government as a “necessary evil,” on one side, and the desire, on the other, to escape the “ordeal of consciousness”—a longing to transfer responsibility for oneself to leaders armed with blueprints for a fully integrated order. Along with Hayek and Oakeshott, our authors name A. V. Dicey (the distinguished British jurist), Bruno Leoni (the Italian philosopher of classical liberal thought), and Lon Fuller (the noted legal philosopher at Harvard who offers a natural law critique of legal positivism) as central to their argument that politics cannot be reduced to a science, in the development of which they launch a broad critique of many if not most of the prominent schools of philosophy of the last two centuries.

If individual liberty and the rule of law belong together, resistance to much of the “Enlightenment project” is of central importance. Of course, there is an Enlightenment tradition in England, Scotland, and America. “Enlightenment” itself is part of the liberal tradition, and the rule of law itself has a part in the Enlightenment. Nedzel and Capaldi express an either/or position—there is good and bad Enlightenment—which acknowledges the tension or ambivalence inherent to modernity while posing a moral choice we must make. The strength of their argument is to clarify exactly why we suffer the ambivalences we do. Theirs is a profoundly learned but also unfaltering polemic against the persistent strength of the “rule through law” alternative.

Central to their argument is an exposition and defense of “spontaneous order,” a concept also central to Hayek. Basically, “spontaneous order” refers to the capacity of individuals without central direction to work out among themselves over time a more or less coherent pattern of interactions, both political and economic, through trial and error. In this view, human beings want to enjoy peaceful, voluntary interactions and can work out ways to achieve this. Government and law can support and referee this process, but must not control and design it. People committed to the rule of law want limited, not omnicompetent, government.

Social practices emerge independently of central direction and are resistant to utopian plans to “perfect” society:

Cultures are the institutionalized background in which what we as social agents do is embedded. The glue that holds it together, that makes communication possible, that preserves it from constant breakdown is the grounding in social practice.

This achievement is most clearly instantiated in the English legal tradition. The authors avoid speaking in prescriptive, universal terms—doing so would abridge and abstract what is in reality a long and complex heritage. Our authors oppose “the highest echelons of the intellectual world . . . controlled by a combination of the presuppositions of objectivity, monism, realism, and utopianism, all vouchsafed by various permutations of scientism.”

Whether this wholesale rejection of much of modern intellectual life passes too easily over all these different schools of thought is a question that will naturally occur to readers. Indeed, the authors’ critique extends back to Plato, and it follows with a sketch of many canonical figures of the Western philosophic tradition. A significant part of the book is a “syllabus of errors,” as if a great deal of Western philosophy has been mistaken. The status of philosophy, they insist, is limited to explicating practices which always precede theory. But a more precise distinction between “philosophy” and “theory” (by which they seem to mean “ideology”) is needed.

Next we find a summation of the central features of the “English legal inheritance” and a historical sketch of the development of English common law with reference to England’s major legal thinkers from the Middle Ages to the twentieth century. Nedzel and Capaldi offer a detailed chapter on Dicey, whom they show to have described in detail the character of the English legal tradition. At this point, they see that their argument suggests that this tradition is exceptional—apart from and perhaps superior to others. But could ours be the only tradition through which freedom is truly understood? Along this byway of academic blasphemy the authors tread carefully, saying, “our intention is to defend and preserve a rare and precious inheritance.” At the same time, they hold up the English tradition as a model which—indirectly, at least—might inspire other cultures to move in the right direction. The tension between defending our particular tradition and elevating it to universal significance shows itself. Their skepticism restrains them from advocating the latter, but the spirit of their argument tempts them in that direction.

There follow accounts of the “vanishing” of the rule of law in our time and its rediscovery in the work of such thinkers as Fuller and, of course, Oakeshott and Hayek, who are the threads that guide us through the labyrinth of modern legal thought from beginning to end. A final chapter offers a carefully considered, comprehensive guide to the whole of Oakeshott’s philosophical oeuvre.

For those deeply versed in the history of legal philosophy, there will be much in this book that is familiar, though it is expressed in an original and intentionally provocative, uncompromising way. The authors’ arguments will arouse sharp responses. For those less steeped in the intricacies of the Western legal tradition, the authors regularly provide summary background information. Especially for the latter readers, the discussion of “spontaneous order” is most useful—the idea is not easy to express (and is often caricatured in ordinary political debate). Ultimately, we want clarification of what it means to be free. Nedzel and Capaldi offer a powerful declaration of what freedom means in the context of the many competing ideas that surround us today. This work is a welcome entrant into the debate over our current and future prospects.

This article originally appeared in The New Criterion, Volume 38 Number 8, on page 77
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