Spontaneous Order and the Law: Balancing Freedom and Order in Legal Tradition

1. IES- Seminar 2008- Georgia Spontaneous Order and the Law Boudewijn Bouckaert Spontaneous Order and the law

2. Spontaneous Order and the Law • Introduction • 1. Spontaneous order : crucial for reconciliation of freedom and order 2.Important question : which institution ( or what type of institutions) conducive for preservation of individual freedom and wealth increase 3. Classical liberal tradition: emphasis on law, legal system; free society is basically held together by law (not by religion, not by moral conventions, not by authority) 4. In this lecture : - Classical liberal idea of law • Functions of the law • Dangerous evolutions threathening legal order of free society Spontaneous Order and the law

3. Spontaneous Order and the Law : Idea of Law in Classical liberal tradition • Negative definition of liberal idea of law: law ≠ outcome of will (monarch,party,democratic majority) • Positive definition • 1.Law = coordination of action of free and equal citizens ;etymology : law = lag ≠ lex • 2.Law = delineation of domains of action; property rights, ‘subjective rights’ • 3.Law = nomocratic= subservient to goals, unknown ex ante Spontaneous Order and the law

4. Nomocratic Law : Social Functions Domains of free action 1.Definition,acquisition,extinction,alienability 2.Protection: preventive,imminent,damages,criminal sanctions 3.Conflict,litigation,procedure,evidence,executive action 4.Transaction,default law,good faith 5.Constitution,limits of government,procedure and competence changing the law (when minarchy) Spontaneous Order and the law

5. Nomocratic Law : intra-liberal discussions • Mine-and-thine-function: sale of body parts; home-steading as legitimacy of land possession • Compensation : beyond compensation by criminal sanctions? • Litigation : juries of professional judges ? Spontaneous Order and the law

6. Telocratic Law • Law in Western societies • Mixture of nomocratic law and telocratic regulation=legal expression of mixed economy • Expansion of regulation= threat to economic growth • Regulation management = window for free market ideas Spontaneous Order and the law

7. Telocratic Law • China:evolution towards more nomocratic law • Evolution of property protection through incentives for bureaucrats towards protection by general rules applied by courts • Contract : enforcement through reputation and ‘gemen’ (buddyship commitment) • Last years : more formal nomocratic institutions Spontaneous Order and the law

8. Corruption of rights’ notion • Classical rights’notion • Late Middle Ages: Franciscan nominalists: ‘ius’=‘facultas’≠ remedy (‘actio’) • property’(‘dominium’) as defined by Bartolus is archetype of ‘ius’ • rights’notion also in relationship with government: constitutional rights and liberties, human rights • // Marx: rights’notion= social isolation • Legal tradition ± in line with classical liberalism Spontaneous Order and the law

9. Rights as entitlements • Redefinition of rights’notion by centre-left Individual Entitlements Individual Entitlements Collective Wealth Individual Entitlements Individual Entitlements Spontaneous Order and the law

10. Thought Policy and Thought Police • Freedom of speech: classical liberal viewpoint: speech entirely in the realm of the individual; only action can be crime; Skokie-precedent • Separation of speech and action not always easy (Holmes,clear and present danger, provoking imminent lawless action) • Nomocratic judge: ongoing exploration of borderline between speech and action Spontaneous Order and the law

11. Thought Policy and Thought Police • Restriction of freedom: dark scenario for Europe? • Welfare state: politics perceived as a zero-sum-game=conflictual • Welfare state: pitting most identifiable groups against each other (p.ex. natives against non-European immigrants) • Restriction of speech: used by extremists in power? • ‘Freedom of speech does not live many hours after free industry and free commerce die’ Hoover Spontaneous Order and the law