Notes

Notes NOTES TO INTRODUCTION 1. It seems reasonable to believe that universal suffrage, for instance, has given rise to as many problems as technology, if not more, although it may well be conceded that there are many connections between the development of technology and universal suffrage. 2. W. Friedmann, Law in a Changing Society (London: Stevens Be Sons, 1959), p. 7. ~. Ibid.) p. 30. 4. Ibid.) p. 4. 5. The special pOSItIOn of supreme courts in this last respect is only a qualification of the general principle underlined above, and we shall revert to it later. NOTES TO CHAPTER I 1. Quoted in Maurice Cranston, Freedom (London: Longmans, Green Be Co., 1953), p. 13. 2. Evidence of planned semantic confusion of this kind may be found in the Guide to Communist Jargon by R. N. Carew-Hunt (London: Geof frey Bles, 1957). 3. A recent essay by Roscoe Pound, former Dean of the Harvard Law School, entitled "Legal Immunities of Labor Unions," provides a detailed description of the immunities these organizations currently enjoy in American law. The essay is printed in Labor Unions and Public Policy (Washington, D.C.: American Enterprise Association, 1958).

191 192 Notes to Pages 44-83 NOTES TO CHAPTER II 1. Lewis Carroll (Charles Lutwidge Dodgson), "Through the Looking Glass," in The Lewis Carroll Book} ed. Richard Herrick (New York: Tudor Publishing Co., 1944), p. 238. 2. Notwithstanding the contrary opinion of Sir Herbert Read (quoted by Maurice Cranston, op. cit., p. 44). 3. Ludwig von Mises, Human Action: A Treatise on Economics (New Haven: Yale University Press, 1949), p. 281. 4. Ibid. NOTES TO CHAPTER III 1. F. A. Hayek, The Political Ideal of the Rule of Law (Cairo: Fiftieth Anniversary Commemoration Lectures, National Bank of Egypt, 1955), p. 2. Virtually the entire substance of this book has been republished in The Constitution of Liberty by the same author. 2. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th ed.; London: Macmillan, 1915), p. 185. 3. Ibid., p. 191. 4. F. A. Hayek, op. cit., p. 45. 5. Carleton Kemp Allen, Law and Orders (London: Stevens & Sons, 1956 ed.), p. 396.

6. Ibid., p. 396. 7. Ibid.} p. 32. 8. Ernest F. Row, How States Are Governed (London: Pitman & Sons, 1950), p. 70. For the situation in the United States, see Walter Gellhorn, Individual Freedom and Governmental Restraints (Baton Rouge: Lou isiana State University Press, 1956) and Leslie Grey, "The Administrative Agency Colossus," The Freeman (October, 1958), p. 31. 9. F. A. Hayek, op. cit.} p. 57. 10. Dicey, op. cit.., p. 189. 11. Loc. cit. 12. Ibid., p. 195. 13. F. A. Hayek, op. cit.} p. 36. 14. Ibid., p. 38. NOTES TO CHAPTER IV 1. Thucydides. The History of the Peloponnesian War; II, 87-39, tr. by R. Crawley (London: J. M. Dent & Sons, 1957, p. 93). 2. Loc. cit. 3. Dagobert D. Runes, A Book of Contemplation (New York: Philosophical Library, 1957), p. 20. 4. W. W. Buckland, Roman Law and Common Law (2nd ed. revised by F. H. Lawson; Cambridge University Press, 1952), p. 4. This book is a fascinating comparison of the two systems.

Notes to Pages 83-115 193 5. Ibid., p. 18. 6. Fritz Schulz, History of Roman Legal Science (Oxford: Clarendon Press, 1946), p. 84. 7. I am indebted for this and other interesting remarks on the Roman legal system to Professor V. Arangio Ruiz, whose essay "La regIe de droit dans l'antiquite classique," republished by the author in Rariora (Rome: Ed. di storia e letteratura, 1946, p. 233), is very informative and stimulating. 8. Cicero De 'republica ii. 1, 2. 9. Dicey, loco cit. 10. Thomas Hobbes, Dialogue between a Philosopher and a Student of the Common Laws of England (1681) in Sir William Molesworth, ed., The English Works o/Thomas Hobbes of Malmesbury (London: John Bohn, 1829-1845), VI, 3-161. II. Matthew Hale, "Reflections by the Lord Chief Justice Hale on Mister Hobbes, His Dialogue of the Law /' published for the first time by Holdsworth, History of English Law (London: Methuen 8c Co., 1924), Vol. V, Appendix, p. 500.

12. Ibid., p. 505. 13. Ibid., p. 504. 14. Dig. I, 3, 21. NOTES TO CHAPTER V 1. As far as Great Britain is concerned, cf. the very accurate analysis of Professor G. W. Keeton, The Passing of Parliament (London: E. Benn, 1952). In regard to the United States, see Burnham, Congress and the American Tradition (Chicago: Regnery, 1959), especially "The Rise of the Fourth Branch," p. 157, and Lowell B. Mason, The Language of Dissent (Cleveland, Ohio: World Publishing Co., 1959). 2. Cf., for instance, the new (1959) Italian traffic laws, which increase considerably the scope of the discretionary measures enforceable against drivers on the part of such executive officials as the "prefects." S. I myself dealt with this subject on two other occasions, namely, in some lectures at Nuffield College, Oxford, and at the Department of Economics, University of Manchester, in 1957. 4. James Buchanan, "Individual Choices in Voting and in the Market,"

Journal of Political Economy J 1954, p. 338. 5. Loc. cit. 6. Loc. cit. NOTES TO CHAPTER VI 1. Edmund Burke, Works (1808 ed.), II, 287 II. 2. Edmund Burke, "Speech to the Electors of Bristol," December 3, 1774, in Works (Boston: Little, Brown 8c Co., 1894), II, 96.

194 Notes to Pages 116-129 3. Cecil S. Emden, The People and the Constitution (2nd ed.; Oxford: at the Clarendon Press, 1956), p. 34. 4. Ibid., p. 53. The historians tell us that "as a result of this speec4 Fox himself was attacked by a mob as he drove down to the House and was rolled in the mud." 5. R. T. McKenzie, British Political Parties (London: Heineman, 1955), p. 588. 6. Dicey, Introduction to the Study of the Law of the Constitution (9th ed.; London: Macmillan, 1939), p. 76. 7. Ibid., p. 73. 8. Ibid., p. 82. 9. Ibid., p. 83. 10. Loc. cit. 11. On this and other points mentioned in this chapter, d. the clear and informative article on "Representation" by H. Chisholm in the Encyclopaedia Britannica (14th ed.). 12. However, the political theory of representation in the Middle Ages seems to have been influenced by a similar theory of the Roman jurist Pomponius, contained in a fragment of the Digest ("deinde quia difficile plebs convenire coepit, populus certe multo difficilius in tanta turba hominum, necessitas ipsa curam rei publicae ad senatum deduxit,"

i.e., the senate was led to assume the responsibility of legislation because of the difficulties involved in assembling the plebeians and the even greater difficulty of holding an assembly of the vast multitude constitut ing the entire electorate). Cf. Otto Gierke, Political Theories of the Middle Age, tr. by Maitland (Cambridge University Press, 1922), pp. 168 if. 13. H. Chisholm, loco cit. 14. Gierke, Ope cit., p. 64. 15. For a recent discussion of the problems of representation in connection with the majority rule, see Burnham, The Congress and the American Tradition (Chicago: Regnery, 1959), particularly the chapter entitled "What Is a Majority?" pp. 311 if. 16. This is true in spite of the fact, noted by Professor Milton Friedman, that shareholders may ultimately get rid of the stock of those firms whose policy they are not sufficiently allowed to control, whereas the citizenry cannot so easily do the same with their citizenship.

17. John Stuart Mill, Considerations on Representative Government (New York: Henry Holt & Co., 1882). 18. Ibid., p. 147. 19. R. T. McKenzie, Ope cit., p. 588. 20. Ibid., p. 589. 21. Leslie Stephen, The Science of Ethics, quoted by Dicey, Ope cit., p. 81.

Notes to Pages 145-182 195 NOTES TO CHAPTER VII 1. Eugen Ehrlich, Juristische Logik (Tiibingen: Mohr, 1918), p. 166. 2. Ibid., p. 167. 3. F. A. Hayek, op. cit.., p. 46. 4. B. Constant, Cours de politique constitutionnelle (Brussells, 1851), I, 178. NOTES TO CHAPTER VIIr 1. Ludwig von Mises, Planning for Freedom (South Holland, Ill.: Liber· tarian Press, 1952), last chapter. 2. Perhaps one should also take account of the damage resulting from physicists' playing the role of economists! S. M. Friedman, Essays in Positive Economics (University of Chicago Press, 1953), p. 11. 4. Ibid .., pp. 16-18. 5. Ibid .., p. 21. 6. Loc. cit. 7. Loc. cit. NOTES TO CONCLUSION 1. R. Kelf-Cohen, Nationalization in Britain: The End of a Dogma (Lon· don: Macmillan, 1958), Preface, p. v. 2. Ibid .., p. 12. 3. Cf., in this connection, M. Friedman, op. cit.., pp. 290 ff. and quotations therein. 4. Wolfenden Report, the Committee on Homosexual Offences and Prosti tution (1959). However, as an example of a contrary, "reactionary" view, we may cite the Maccabean lecture in jurisprudence delivered at the British Academy by the Hon. Sir Patrick Devlin, March, 1959, and published by the Oxford University Press under the title, The Enforce ment of Morals.

5. A practical way of reducing the scope of legislation could be that of resorting to legislation itself-for instance, by introducing a clause in the written constitutions of the countries concerned, with the object of preventing legislatures from enacting statutes about certain kinds of matters and/or prescribing unanimity or qualified majorities before certain statutes could be put into effect. The requirement of qualified majorities in particular could prevent groups within a legislature from bribing other groups in order to sacrifice dissenting minorities, by rendering the consent of these minorities indispensable for the approval of the law. This procedure was suggested by Professor James Buchanan at the meeting of the Mont PeIerin Society in Oxford, England, September, 1959.

196 Notes to Pages 185-189 6. Carleton Kemp Allen, Law in the Making (5th ed.; Oxford: at the Clarendon Press, 1951), p. 287. 7. Ibid.} p. 269. 8. Cf., for example, F. H. Levi, An Introduction to Legal Reasoning (4th ed.; University of Chicago Press, 1955), pp. 41 If. 9. Ibid.} pp. 41-43. 10. As Carleton Kemp Allen would say, judges "make" law only in a secondary sense, as "a man who chops a tree into logs has in a sense made the logs.... Mankind, with all its resource and inventiveness, is limited in its creative power by the physical material vouchsafed to it. Similarly the creative power of the courts is limited by existing legal material at their command. They find the material and shape it. The legislature may manufacture entirely new material." (Op. cit.) p. 288.) 11. The most accurate and brilliant treatment of this point that I know of is contained in Constitutionalism: Ancient and Modern by Charles Howard McIlwain (Cornell University Press, originally published in 1940 and since re-edited).