Freedom and the Rule of Law

Author: Wei Jianguo
Publisher:
Publish Date: 2005-08-01
Features: Man is merely a reed, the weakest thing in nature; but he is a reed that thinks, and all his dignity lies in thought. By space, the universe encompasses man; by thought, man encompasses the universe. — (French) Pascal
For a long time, people have equated medieval English liberty and the rule of law with modern liberty and the rule of law, and thus emphasized the role of medieval traditions in the formation mechanisms of English liberty and the rule of law. In fact, these are two different concepts of liberty and the rule of law: medieval liberty was a "hierarchical" liberty, and the rule of law was a theocentric legal system, formed in the medieval hierarchical political society; modern liberty, on the other hand, was an "individualistic" liberty, and the rule of law was a humanistic legal system, which emerged in the modern civil society. The difference between these two concepts of liberty and the rule of law stems from the different economic foundations on which they were produced and existed: the medieval society based on natural economy and the modern civil society based on monetary economy. Civil society is the cradle where individual liberty and humanistic rule of law are born, and its mature form is the nation-state—civil society, also known as the modern civil society. The urban civil society of medieval Europe was the prototype of the modern civil society, and its monetary economy had alreadyed individual liberty and the rule of law. However, medieval cities could not directly evolve into the modern civil society; they needed to ally with the monarchy. In the West, the modern civil society is the English civil society. During the early modern period, Europe underwent a transition from urban civil society to state civil society. In medieval Italy and Germany, cities or city-states declined because they could not ally with the monarchy. In France and England, cities actually allied with the monarchy, but due to the different balance of power between cities and the monarchy, they developed into states of different natures. In France, the monarchy held the dominant position, leading the state to develop into a monarchy; in England, however, the strong urban forces were able to effectively restrain the monarchy, causing the state to develop into a nation-state. The basic state form of the modern civil society is precisely this nation-state. The early modern English monetary economy had a higher level of development, and on the basis of monetizing land and labor, it formed a market society. The market society nurtured and gave birth to individual liberty, and the essence of this individual liberty was economic liberty. The development of economic liberty led to a transformation in the way social wealth was acquired, shifting from methods of obtaining wealth through political privileges to methods of obtaining wealth through labor and the market. This transformation was achieved through the judicial independence of the common law courts. The judicial independence of the common law courts established the rule of law in the economic life of the nation-state, guaranteed individual economic liberty, and made the market the primary means of acquiring wealth.
The early modern period was also a time when the urban era in the European economic system transitioned to the state era. The realization of individual liberty could not be separated from the state as its carrier, just as in the medieval period, individual liberty could not be separated from the city. Through the parliamentary representative system, England realized the formation of public power in the state, establishing constitutionalism in political life. In summary, England completed the "reconstruction of the state" (i.e., the transformation from a dynastic state to a nation-state) through the judicial independence of the common law courts and the parliamentary representative system, achieving the separation of the political state from civil society. As a result, the entire English society was divided into two domains: the economic domain and the political domain, or the private sphere and the public sphere. The former is a sum of special private interest relations, while the latter is a sum of universal public interest relations. Only when the economic domain loses its political nature and becomes a pure private sphere can the state truly become a public power institution, rather than a tool for the king's privileges.
Civil society is a socioeconomic union formed voluntarily by individuals based on their private interests, which actively promotes human welfare; the state is a public power organization established to avoid social chaos, which passively increases human welfare. The formation of the early modern English civil society is also reflected in two aspects: domestic class identity based on private ownership and the foreign economic nationalism strategy. Economic nationalism is primarily manifested in the use of capitalist profit logic as the guiding principle of national policy, rather than adhering to the traditional feudal territorial logic. Moreover, the benefits obtained by the state are now shared by the entire nation, rather than being confined to the king as in the past.