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On the History of the Idea of Law




On the History of the Idea of Law is the ¬rst book ever to trace
the development of the philosophical theory of law from its ¬rst appear-
ance in Plato™s writings to today. Shirley Robin Letwin ¬nds important
and positive insights and tensions in the theories of Plato, Aristotle,
Augustine, and Hobbes. She ¬nds confusions and serious errors intro-
duced by Cicero, Aquinas, Bentham, and Marx. She harnesses the
insights of H. L. A. Hart and especially Michael Oakeshott to mount a
devastating attack on the late twentieth-century theories of Ronald
Dworkin, the Critical Legal Studies movement, and feminist jurispru-
dence. In all of this, Dr. Letwin ¬nds the rule of law to be the key to
modern liberty and the standard of justice.

This is the ¬nal work of the distinguished historian and theorist S H I R L E Y
R O B I N L E T W I N : a major ¬gure in the revival of conservative thought
and doctrine from 1960 onwards, Dr. Letwin died in 1993. Her principal
academic publications include The Pursuit of Certainty: David Hume,
Jeremy Bentham, John Stuart Mill, Beatrice Webb (Cambridge Univer-
sity Press, 1965), and The Gentleman in Trollope: Individuality and Moral
Conduct (Harvard University Press, 1982). This manuscript has been
prepared for publication by Noel B. Reynolds.
On the History of the
Idea of Law

Shirley Robin Letwin
Edited By
Noel B. Reynolds
cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge cb2 2ru, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521854238

© The Estate of the Late Shirley Robin Letwin 2005


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format

isbn-13 978-0-511-13996-3 eBook (EBL)
isbn-10 0-511-13996-9 eBook (EBL)

isbn-13 978-0-521-85423-8 hardback
isbn-10 0-521-85423-7 hardback




Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
Contents




Editor™s preface page vii

Introduction: The idea of law 1

Part I Law anchored to a cosmic order
1 Plato 9
2 Aristotle 21
3 Cicero 42

Part II The Christian revision
4 St. Augustine 59
69
5 St. Thomas Aquinas

Part III The modern quest
6 Thomas Hobbes 91
7 John Locke 108
8 Immanuel Kant 135
9 Jeremy Bentham 15 3


Part IV The significance of rules
10 From historical jurisprudence to Realism: Savigny, Jhering
Duguit, Holmes, Gray, Frank 185
11 The defense of rules: Edward Levi, Hans Kelsen,
H. L. A. Hart 200

v
vi Contents

Part V The idea of law repudiated
12 Marxist theories 221
13 Political jurisprudence I: From Realism to
feminist jurisprudence 247
14 Political jurisprudence II: Ronald Dworkin 276

Part VI New foundations
15 A skeptical jurisprudence: Michael Oakeshott 307
16 Postscript: Morality, individualism, and law 326

Index 347
Editor™s preface




Almost six months before she died, Shirley Robin Letwin mentioned in a
letter to her friend, Milton Friedman, that she had “not been well,” but
that she seemed “to be mending” and was ¬nally “able to ¬nish the long
overdue ˜law book™.”1 This book, which she intended to be her career
contribution to the academic debates about theories of law “ her
central intellectual passion “ had been her principal project for at least a
decade, but was repeatedly delayed as she took on other more urgent
projects, such as her book on Margaret Thatcher (The Anatomy of
Thatcherism, New Brunswick, NJ: Transaction, 1993).
For many years, her husband William Letwin, and her son Oliver
Letwin, nurtured the hope of being able to complete the manuscript.
Shirley had secured a tentative offer of publication from an American
university press, but it would require some important revisions. Bill™s
declining health, and Oliver™s ascending political career conspired to stall
their project. Finally, in 2001, I took advantage of a casual encounter
with Kenneth Minogue, a close Letwin family friend and London School
of Economics colleague to inquire about the status of the manuscript. We
shared the view that this would be an important contribution to legal
philosophy, and that outside help would probably be needed to bring it to
publication. By this time Oliver was completely consumed by his political
career as Shadow Home Secretary, and was also managing most of his
father™s affairs. He welcomed Minogue™s suggestion that I be asked to
pick up the project, and within weeks I had received the manuscript in my
of¬ce at Brigham Young University.
The importance of this manuscript was immediately obvious. In what
was clearly her magnum opus, Shirley Letwin chose not to engage the
hundreds of lesser issues that occupy the pages of the legal philosophy

1
Letwin died June 19, 1993. Friedman quoted her January letter in the obituary he wrote
for her and published in National Review, vol. 45, issue 14, July 19, 1993, 20. She told very
few of her friends about the illness. When I arrived in Dover and called her home to set up
a time that my daughter and I could stop by for a visit on our way home from a sabbatical
year in Jerusalem, her husband Bill informed me that she had died just that morning.

vii
viii Editor™s preface

journals where all the twists and turns of contemporary theories are
examined and criticized in discussions that soon lose their currency, but
rarely address the most general questions that have motivated philoso-
phers in every age. Rather, she addressed the same fundamental questions
to every philosopher from Plato to the present who has made a substan-
tial contribution to our understanding of the nature of law. What is law?
What is the rule of law? While the book explains and criticizes the legal
theories of the most important philosophers from Plato to the present, it
has as its primary target those theories of the twentieth century which in
one way or another reject the classical understanding of law as illusory,
and treat the idea of rule of law as a conservative mantra or a misnomer
for rights.
From Letwin™s perspective, these recent movements have misunder-
stood the important issues. Since the legal realists launched their attack
on the objectivity of judicial decision-making early in the twentieth cen-
tury, the underlying assumption of successive movements in legal phil-
osophy has been that unless judicial reasoning could be shown to be
objective, the rule of law must be an illusion. But as Letwin clearly shows,
the classical defenders of the rule of law understood the limitations of
judicial decision-making, and they still championed the rule of law as the
best possible regime for human beings who wished to establish and
preserve the individual freedom necessary for human virtue to ¬‚ourish.
The waves of criticism of rule of law, based on the insight that judicial
decisions are never fully predictable by objective criteria, all share
the same mistake. They have focused their attack on an assumption that
was never an essential plank of the case for the rule of law. The right
question would be this: under what conditions would a wise and informed
people choose to be governed by law, fully recognizing the limitations of
judicial reasoning and other persistent sources of potential error in legal
administration?
However critical Letwin might be of these twentieth-century apostasies,
she is not a pessimist. For this same time period saw the rise of other
theorists who did grasp and revere the achievements of the rule of law in
the classic sense. While it may well have been her early exposure to F. A.
Hayek at the University of Chicago that focused her attention on this
question, she went on to ¬nd the most comprehensive development in
understanding the rule of law ever “ in the writings of the English
philosopher, Michael Oakeshott, the subject of her ¬nal chapter.
Letwin™s critiques of legal realism, Ronald Dworkin, Critical Legal
Studies, and feminist jurisprudence were written in the mid-1980s when
these writers were seen as revolutionary and controversial. Two decades
later, our perspective on their positions has matured considerably, and
ix
Editor™s preface
the list of important representatives of these views, has evolved as well. As
the 1992 peer reviewers of the manuscript had already seen, some rewrit-
ing of these chapters was required to allow readers to see Letwin™s critique
¬rmly engaged with the most signi¬cant and mature positions that had
emerged out of these movements. Letwin™s original manuscript will be
available at the Brigham Young University Library for anyone who
would like to read her 1980s treatment of these topics.
The most time-consuming part of editing Letwin™s manuscript, how-
ever, has been the footnotes. It was not the author™s custom to include full
citations in the draft versions of her manuscript. At this point no one
knows whether she had recorded full citations in a separate ¬le, now
unavailable, or whether she planned to complete them during the editing
process. Of the approximately 800 citations, only a small number were
complete. I mention this primarily to give credit to a series of research
assistants who spent hundreds of hours searching for translations and
sources that would match the text. After we had exhausted the resources
of the normally very adequate Brigham Young University Library, we
turned to Inter-Library Loan. But still a hundred citations remained
mysterious. Finally, on an extended trip to London, with the help of my
wife Sydney, who proved better than I at ¬nding these, we combed
through Letwin™s personal library and the stacks of the London Library,
where Letwin did much of her work. In a few cases, where we could not
verify a reference, we were forced to adjust the text or use alternative
translations. A very few nonessential references were simply deleted, and
a couple of important ones have been left in the text with imperfect
citations that we have not been able to con¬rm. In my judgment, this
imperfection is of less consequence than the potential damage to her
argument that would occur from omitting them. Certainly, our eventual
success in ¬nding 99.8 percent of her citations justi¬es the presumption
that she did have access to the sources she cites for the handful that we
could not verify. Hopefully, readers of this volume will recognize these
missing sources and report them to me.
This project has bene¬ted from the labors of numerous other individ-
uals, including research assistants, secretaries, editors, and my wife. I wish
to thank Sydney S. Reynolds, Joan L. Naumann, Ryan A. Davis, Clark
D. Asay, Joseph Reed Callister, John Andrew West, Jason S. Scho¬eld,
Ari Bruning, John J. Nielsen, Alison Coutts, Adam W. Bentley, and
Margene H. Jolley for their invaluable assistance. The editorial staff of
Cambridge University Press has been most helpful, and, in particular, I
want to thank Richard Fisher, who as group director seemed as pleased as
I was to see Letwin™s last book, like her ¬rst, published by Cambridge
University Press. I have also bene¬ted from the generous support of
x Editor™s preface

Brigham Young University and the Earhart Foundation in bringing this
project to conclusion, and wish to state my deep appreciation for both
institutions.
In conclusion, I wish to thank Oliver and William Letwin, as Shirley™s
literary executors, for their enthusiastic encouragement and for the free
reign that they offered from the beginning of the project. While I would
have been quite happy to accommodate special directions or restrictions
from them, they imposed none. I am sure the author would be as pleased
as I to see this volume dedicated to them.

NOEL B. REYNOLDS
OREM, UTAH
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Introduction:______________________________________ _ _ _The__________ _ _ _idea___________ _ _ _of_____ _ _ _law_________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _



The idea of law has been at the heart of Western civilization since its
beginnings in ancient Greece. All that we consider distinctive about our
civilization, above all its genius for maintaining a peaceful communal life
that leaves room for a remarkable variety in thought and action, is bound
up with the idea of law.
Yet why that is so, or even whether it is so, despite a long and rich
history of reflection on the meaning, merits, and intricacies of the idea of
law, has remained obscure. Indeed, so marked has been the indifference to
examining our understanding of the idea of law (as opposed to studying
the operation of legal systems) that attempts to repudiate the idea of law
have gone unnoticed. As a result, we stand in danger of losing our greatest
blessing without having learned to understand or appreciate it.
But if the nature of the idea of law, and the pattern of its development,
has remained elusive, the starting point for such an inquiry is easily
discerned in ancient Greece. In the fifth century b.c., where the story
begins, the word used to denote law was nomos, and the historical phe-
nomenon to which the discussion of nomos referred is readily identified.
The nomoi of Athens were the rules collected by a group of anagrapheis or
“inscribers” who had been empowered to engrave them on stone. These
rules were thought of, probably not altogether accurately, as having been
derived from Draco™s Code of 621“620 b.c. and its revisions in the next
century by Solon (who had used the word thesmoi to describe his rules).
As Aristotle tells us in the Athenian Constitution, Solon™s laws were
written up on “the Boards” (three four-sided structures of wood or
perhaps stone revolving on pivots), which were set up in the Royal
Colonnade. And Solon prescribed that the laws should remain unaltered
for a hundred years.1



1
Aristotle, Athenian Constitution 7.1, in Athenian Constitution; The Eudemian Ethics; On
Virtues and Vices, trans. H. Rackham (London: Heinemann, 1935).

1
2 Introduction: The idea of law

In 403“402 b.c., there was a general review of these laws, and the
additions and changes prepared by the nomothetai or “lawmakers” were
recorded on the stone wall along with the already existing laws. It was
declared that no law passed before 403“402 b.c. was valid unless it was
included in the new inscriptions made between 410 and 403 b.c.; no
charge for offenses committed before that year could be brought, and
no new regulations could override the law thus established. A central
record office was set up to keep public records on rolls of papyrus
that could be brought into court and read out. And the records of
laws passed after the fifth century b.c. include the date, the procedure,
and the official bodies by which the law was passed, along with the
name of the proposer. There was also a regular procedure for inspecting
the laws in order to weed out inconsistencies and redundancies. Judg-
ments given in court were recorded and regarded as precedents. That
anyone who proposed a measure that contravened established law was
subject to severe punishment was only one of the precautions against
reckless or inconsistent innovations. To ensure that magistrates observed
the law, every citizen had a right to charge a magistrate with illegal
conduct. And the graphe paranomon, or indictment for illegality, was
regularly used.
The pride of the ancient Greeks in the fact that Athens was, as Theseus
says in Oedipus at Colonus, “A state that rules by law, and by law only,” is
evident throughout their literature.2 Although the law came under attack
almost as soon as it was established, and various aspects of the
law became subjects of dispute, it was agreed that the rule of law is
the mark of a high civilization and that its opposite, lawless tyranny,
reduces its subjects to slaves and is characteristic of barbarism. Expres-
sions of this veneration for law appear regularly throughout the fifth and
fourth centuries b.c. in the tragedies, the histories, and the arguments of
the orators.
When the wife of Darius, in Aeschylus™ Persians, asks who is the master
of the army, she is told that the Greeks are neither the slaves nor the
subjects of any man, just as in Herodotus, Darius is assured that the
Greeks are both free and able to act together as an army because they fear
the law as much as Darius™ subjects fear him. In Prometheus Bound, Zeus
is described as a “tyrant” because he exercises power capriciously
according to no fixed known law: “I know that he is savage,” says


2
Sophocles, Oedipus at Colonus 1040“44, in The Complete Greek Tragedies, vol. II,
Sophocles, ed. David Grene and Richmond Lattimore (Chicago: University of Chicago
Press, 1959).
Introduction: The idea of law 3
Prometheus, “and his justice a thing he keeps by his own standard.”3
Euripides™ Jason tells Medea that in following him she received more
than she gave because “instead of living among barbarians,” she had
inhabited a Greek land and learned “how to live by law instead of the
sweet will of force.”4 In The Suppliant Woman, Theseus reproves the
herald from Thebes for “seeking a master here” because “this city is free,
and ruled by no one man.” He explains that “nothing is worse for a city
than an absolute ruler,” for whereas without law, “one man has power
and makes the law his own,” once there is written law, both rich and
poor “have recourse to justice.” And “if the little man is right, he wins
against the great.”5
Theseus™ words were echoed by the orator, Isocrates, who said that the
mark of Athens™ greatness is that “finding the Hellenes living without laws
and in scattered abodes, some oppressed by tyrannies, others perishing
through anarchy, she delivered them from these evils by taking some
under her protection and by setting to others her own example; for she
was the first to lay down laws and establish a polity. This is apparent from
the fact that those who in the beginning brought charges of homicide, and
desired to settle their mutual differences by reason and not by violence,
tried their cases under our laws.”6 Later, in the fourth century b.c., in the
debates about the proper response to Macedonian power, Aeschines
distinguished monarchy and oligarchy which “are governed by the will
of the rulers” from democratic regimes which are governed by “estab-
lished laws,” and “it is the laws that guarantee the security of citizens in a
democratic city.” And Aeschines™ opponent, Demosthenes, made the
same point: “The laws, Athenians, you have sworn to obey; through the
laws you enjoy your equal rights; to the laws you owe every blessing that
is yours. . . .”7
Law, its admirers believed, was opposed to both decrees ( psephesmata)
and to custom. It was opposed to decrees, by which they meant particular,
occasional decisions applying to one individual, because they identified


3
Aeschylus, Prometheus Bound 184“85, in The Complete Greek Tragedies, vol. I, Aeschylus,
ed. David Grene and Richmond Lattimore (Chicago: University of Chicago Press, 1959).
4
Euripides, The Medea 532“36, in The Complete Greek Tragedies, vol. III, Euripides, ed.
David Grene and Richmond Lattimore (Chicago: University of Chicago Press, 1959).
5
Euripides, The Suppliant Women 400“60, in The Complete Greek Tragedies, vol. IV,
Euripides, ed. David Grene and Richmond Lattimore (Chicago: University of Chicago
Press, 1959).
6
Isocrates, Panegyricus 39“40, in Isocrates, vol. I, trans. George Norlin (Cambridge, MA:
Harvard University Press, 1928).
7
Demosthenes, Against Meidias 188, in Demosthenes, vol. III, trans. J. H. Vince
(Cambridge, MA: Harvard University Press, 1935).
4 Introduction: The idea of law

law with permanent rules which define wrongdoing and its corresponding
punishment equally for all Athenians. Demosthenes thus warns Athen-
ians that if particular legislative acts are allowed to prevail over rules, then
“our laws are no better than so many decrees.” And he points out as well,
what is implicit in this view of law, that law has nothing to do with
bargaining or arbitration between parties of opposed interests. That is
why, Demosthenes argues, his opponent was obliged “to prove that he
has not done what I have charged him with. . . . He may argue as if the
question at issue were whether he is to be delivered unto Demosthenes™
hands,” but “the truth is quite otherwise,” because “you never ˜deliver™ a
malefactor to his accuser; for when someone has been wronged, you do

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