As for the constitution of Crete which is described by Ephorus, it might suffice to tell its most important provisions. The lawgiver, he says, seems to take it for granted that Liberty is the State’s highest good and for this reason alone makes Property belong specifically to those who acquire it, whereas in conditions of slavery everything belongs to the rulers and not to the ruled.
Note: Ephorus lived in the 4th century BC, and he was describing Crete as it had been for many centuries earlier.
So get it straight:
Private Property is Liberty.Collective Property is Slavery.
Further, this is “pre-classical liberalism” – not “neo-liberalism.”
It is socialism, communism and collective property that are NEW – dating back to the 1850s.
Nehru was following a “political fashion”; he had not studied the ancients and their wisdom.
Thus, he did not know that Private Property is not only the foundation of Liberty, it is the foundation of civilisation itself.
Private Property is the basic rule all our unlettered people follow in the Natural Order of the market society. Vast masses can only “act” – that is, act to “exchange” – only where there is a clear understanding of what is “mine” and what is “yours”; and this rule alone prevents conflict.
If a Communist Mayor took over and declared everything in his City to be “collective property,” chaos would ensue, and everyone would raid every shop and every mansion to take whatever he wanted in the name of the Universal Brotherhood of Man.
It follows that the Market Society is based on Individualism, and the rights of Property belong to Individuals.
It further follows that the Market Society is not an “organisation.” It is NOT a Command Economy. Each Individual speculates with his own Property, seeking to satisfy his customers, responsible only to himself for his gains and losses.
What happens when conflicts break out and the Natural Order is disturbed?
Then, an “impartial judge” is called in to resolve the dispute.
How will this judge “discover” the Law of Liberty? Hear Hayek on this:
The distinct character of the rules which the judge will have to apply, and must endeavour to articulate and improve, is best understood if we remember that he is called in to correct disturbances of an order that has not been made by anyone and does not rest on individuals having been told what they must do. In most instances no authority will even have known at the time the disputed action took place what the individuals did or why they did it. The judge in this sense is an institution of a spontaneous order. He will always find such an order in existence as an attribute of an ongoing process in which the individuals are able to successfully pursue their plans…
In the Market Society, individuals meet and make peaceful and gainful exchanges. While doing so, they follow the Golden Rule of Property. This creates a spontaneous, “natural order.” Just as posses of policemen are NOT required to maintain order, so also the “specific commands” of Legislatures are unnecessary. The impartial judge is concerned only with the disputes between individuals - and not the “will” of any “organisation” like The State. Let’s call in Hayek, again:
The judge, in other words, serves, or tries to maintain and improve, a going order which nobody has designed, an order that has formed itself without the knowledge and often against the will of authority, that extends beyond the range of deliberate organisation on the part of anybody, and that is not based on individuals doing anybody’s will, but on their expectations becoming mutually adjusted.
The judge thus takes into account decisions made in similar cases in the past; and, if he does set a “precedent,” he only “delimits the range of permissible actions” that will apply to unforeseen instances in the future. The judge is a servant of the Natural Order. He is not a servant of The State. He is there to “preserve the peace” – a peace that existed before conflict broke out. This is what Common Law is all about. Common law judges did not impose the monarch’s will – and the monarch never “made new law.” Common law judges “discovered the law” from the past – from custom and usage, and precedents.
Hayek says:
The efforts of the judge are thus part of that process of adaptation of society to circumstances by which the spontaneous order grows. He assists in the process of selection by upholding those rules which, like those which have worked well in the past, make it more likely that expectations will match and not conflict. But even when in the performance of this function he creates new rules [sets precedents], he is not the creator of a new order but a servant endeavouring to maintain and improve the functioning of an existing order. And the outcome of his efforts will be a characteristic instance of those “products of human action but not human design” in which the experience gained by the experimentation of generations embodies more knowledge than was possessed by anyone….He must thus be conservative in the sense only that he cannot serve any order that is determined not by rules of individual conduct but by the particular ends of authority. A judge cannot be concerned with the needs of particular persons or groups, or with “reasons of State” or “the will of government,” or with any particular purposes which an order of actions may be expected to serve. Within any organisation in which the individual actions must be judged by their serviceability to the particular ends at which it aims, there is no room for the judge.
So, can a Socialist ever be an “impartial judge” – or will he always side with authority? Hayek notes:
In an order like that of socialism, in which whatever rules may govern individual actions are not independent of particular results [like “redistribution”], such rules will not be “justiciable” because they will require a balancing of the particular interests affected in the light of their importance. Socialism is indeed largely a revolt against the impartial justice which considers only conformity of individual actions to end-independent rules and which is not concerned with the effects of their application in particular instances. Thus a socialist judge would really be a contradiction in terms; for his persuasion must prevent him from applying only those general principles which underlie a spontaneous order of actions, and lead him to take into account considerations which have nothing to do with the justice of individual conduct [as with rent control, nationalisation, land acquisition or the war on drugs].
Hayek goes on to say what kind of judge – and what kind of justice – best suits the Natural and Spontaneous Order of the Market Society:
The difficulty many people feel about conceiving of the judge as serving an existing but always imperfect abstract order which is not intended to serve any particular interests is resolved when we remember that it is only these abstract features of the order which can serve as the basis of the decisions of individuals in unforeseen future conditions, and which therefore alone can determine an enduring order; and that they alone for this reason can constitute a true common interest of the members of a Great Society, who do not pursue any common purposes but merely desire appropriate means for the pursuit of their respective individual purposes.
All this MUST be based on the Institution of Private Property.
Law, Liberty and Property are an inseparable trinity.
Thus, there can never be any Justice under Socialism and Socialist Judges.
And a Socialist Constitution.
Onwards to a Second Republic!
And a Private Law Society – based on Property, Contracts, and Torts.
To conclude – here is Adam Smith’s good friend, David Hume:
But, though it be possible for men to maintain a small uncultivated society without government, it is impossible they should maintain a society of any kind without justice, and the observance of the three fundamental laws concerning the stability of possessions [property], translation by consent [free exchange], and the performance of contracts. They are therefore antecedent to government.
I would insist that Torts are also antecedent to government. With Torts, “criminal justice” becomes redundant – as I have argued earlier. On this subject, do read Bruce Benson’s The Enterprise of Law: Justice Without The State.
So, dear reader, contemplate the desirability of a natural and spontaneous order in which we all can peacefully co-exist and pursue our own individual ends – under the Law.
So, its not just about Liberty.
It is Liberty Under Law.
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