In the long run, who cares about the certainty of law!

How the Athenians tried to protect their freedom from their democracy:

Law-making was the business of popular legislative assemblies, and the general rules laid down in written form by those assemblies were contrasted with the arbitrary orders of tyrants. But the Greeks, and particularly the Athenians, were to realize fully in the second half of the fifth and in the fourth century before Christ the grave inconveniences of a law-making process by means of which all the laws were certain (that is, precisely worded in a written formula), but nobody was certain that any law, valid today, could last until tomorrow without being abrogated or modified by a subsequent law. Tysamenes” reformation of the Athenian constitution at the end of the fifth century offers us an example of a remedy against this inconvenience that could be usefully pondered by contemporary political scientists and politicians. A rigid and complex procedure was then introduced in Athens in order to discipline legislative innovations. Every bill proposed by a citizen (in the Athenian direct democracy every man belonging to the general legislative assembly was entitled to present a bill, whereas in Rome only the elected magistrates could do so) was thoroughly studied by a special committee of magistrates (nomotetai) whose task was precisely that of defending the previous legislation against the new proposal. Of course, proponents could freely argue before the general legislative assembly against the nomotetai in order to support their own bills, so that the whole discussion must have been based more on a comparison between the old and the new law than on a simple oration in favor of the latter.

But this was not the end of the story. Even when the bill had been passed at last by the assembly, the proponent was held responsible for his proposal if another citizen, acting as a plaintiff against the proponent himself, could prove, after the law had been approved by the assembly, that the new legislation had some grave defects or that it was in irremediable contradiction with older laws still valid in Athens. In that case, the proponent of the law could be legitimately tried, and the penalties could be very serious, including the death sentence, although, as a rule, unfortunate proponents suffered only fines. This is not a legend. We know all this from Demosthenes’ accusation against one of these unfortunate proponents named Tymocrates. This system of fining proponents of unsuitable legislation was not in opposition to democracy, if we mean by that word a regime in which the people are sovereign and if we admit that sovereignty means also irresponsibility, as it does in many historical interpretations of it.

We must infer that the Athenian democracy at the end of the fifth century and during the fourth century before Christ was obviously not satisfied with the notion that the certainty of the law could be equated simply with that of a precisely worded formula in a written text.

Through Tysamenes’ reform, the Athenians discovered at last that they could not be free from the interference of the political power only by obeying the laws of today; they also needed to be able to foresee the consequences of their actions according to the laws of tomorrow.

This is, in fact, the chief limitation of the idea that the certainty of the law can be simply identified with the precise wording of a written rule, whether general or not.

But the idea of the certainty of the law has not only the above-mentioned sense in the history of the political and legal systems of the West. It has also been understood in a completely different sense.
The certainty of the law, in the sense of a written formula, refers to a state of affairs inevitably conditioned by the possibility that the present law may be replaced at any moment by a subsequent law. The more intense and accelerated is the process of law-making, the more uncertain will it be that present legislation will last for any length of time. Moreover, there is nothing to prevent a law, certain in the above-mentioned sense, from being unpredictably changed by another law no less “certain” than the previous one.

Thus, the certainty of the law, in this sense, could be called the short-run certainty of the law. Indeed, there seems to be a striking parallel in our day between short-run types of provisions in matters of economic policy and the short-run certainty of the laws that are enacted to secure these provisions. In a more general way, the legal and political systems of almost all countries today could be defined in this respect as short-run systems, in contrast to some of the classic long-run systems of the past. The famous dictum of the late Lord Keynes that “in the long run we shall all be dead” could be adopted as the motto of the present age by future historians. Perhaps we have become increasingly accustomed to expect immediate results from the enormous and unprecedented progress in the technical means and scientific devices developed to perform many kinds of tasks and to achieve many kinds of results in material ways. Undoubtedly, this fact has created for many people who ignore or try to ignore the differences the expectation of immediate results also in other fields and in regard to other matters not dependent at all on technological and scientific progress.

I am reminded of a conversation I had with an old man who grew plants in my country. I asked him to sell me a big tree for my private garden. He replied, “Everybody now wants big trees. People want them immediately; they do not bother about the fact that trees grow slowly and that it takes a great deal of time and trouble to grow them. Everybody today is always in a hurry,” he sadly concluded, “and I do not know why.”

Lord Keynes could have told him the reason: people think that in the long run they will all be dead. This same attitude is also noticeable in connection with the general decline in religious belief that so many priests and pastors lament today. Christian religious beliefs used to emphasize, not the present life of man, but a future one. The less men believe now in that future world, the more they cling to their present life, and, believing that individual life is short, they are in a hurry. This has caused a great secularization of religious beliefs at the present time in the countries of both the Occident and the Orient, so that even a religion as indifferent to the present world as Buddhism is being given by some of its supporters a mundane “social,” if not, in fact a “socialist,” meaning. A contemporary American writer, Dagobert Runes, says in his book on contemplation, “Churches have lost the touch of the Divine and turned to book reviews and politics.”

This may help to explain why there is now so little attention given to a long-run conception of the certainty of the law or indeed to any other long-run conception that relates to human behavior. Of course, this does not mean that short-run systems are, in fact, more efficient than long-run ones in achieving the very ends that people endeavor to attain by devising, say, a new miraculous full-employment policy or some unprecedented legal provision or simply by asking from growers big trees for their gardens.

The short-run concept is not the only notion of the certainty of the law that the history of political and legal systems in the countries of the West presents to a student patient enough to recognize the principles that underlie institutions.

Bruno Leoni, Freedom & the Law, chapter 4, “Freedom & the Certainty of Law”

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