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

2. IES-Seminar 2008 Georgia Spontaneous Order and the law 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

3. IES-Seminar 2008 Georgia Spontaneous Order and the law 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

4. IES-Seminar 2008 Georgia Spontaneous Order and the law 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)

5. IES-Seminar 2008 Georgia Spontaneous Order and the law 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 ?

6. IES-Seminar 2008 Georgia Spontaneous Order and the law 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

7. IES-Seminar 2008 Georgia Spontaneous Order and the law 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

8. IES-Seminar 2008 Georgia Spontaneous Order and the law 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

9. IES-Seminar 2008 Georgia Spontaneous Order and the law Rights as entitlements  Redefinition of rights’notion by centre-left Collective Wealth Individual Entitlements

10. IES-Seminar 2008 Georgia Spontaneous Order and the law 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

11. IES-Seminar 2008 Georgia Spontaneous Order and the law 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