Suri Ratnapala

Eighteenth-Century Evolutionary Thought and its Relevance in the Age of Legislation

This essay revisits the evolutionist writingsof the eighteenth century to clarify their key ideas concerninglegal and social evolution and to assess their relevance in thepresent era of pervasive legislation. The discovery of the principleof the accumulation of design is traced to these writings andthe continuity of twentieth century spontaneous-order theoryand new institutional economics with this tradition is noted.While highlighting the contributions of other institutional theoriststo the elucidation of the role of purposive action in legal evolution,the author argues that input designing does not alter the fundamentalnature of legal emergence as postulated by the eighteenth centuryscholars. The essay supports the ideal of legal generality, freespeech, property and contractual freedom as normative implicationsof the evolutionary viewpoint.

From Sensory Order to Legal Order: Property and Freedom of Contract in the Jurisprudence of David Hume

David Hume’s theory of law and justice is a central element of his moral philosophy. Hume’s theory of the mind leads to a theory of undesigned social order based on fundamental laws of justice that arise insensibly through experience. The need to secure private property and its free exchange by the performance of promises is the original cause of the emergence of the rules of justice. Hume argues that the moral duty of obedience to authority arises from the need to maintain the rules of justice and that a ruler who violates or fails to uphold justice forfeits the right of allegiance. This paper analyses Hume’s theory and argues that it is epistemologically superior to natural rights theory and provides a powerful justification of property rights and contractual freedom that remains valid today.

Military Justice and Chapter III: The Constitutional Basis of Courts Martial

The High Court has long struggled with the constitutional status of military tribunals established to hear disciplinary charges against service personnel. The Courts judgments reveal three distinct theories on this issue. The first view holds that military tribunals exercise judicial power, but not ‘the judicial power of the Commonwealth’ within the meaning of s 71 of the Constitution. The second view holds that the power in question is not judicial power at all for constitutional purposes. The third view holds that the power is ‘the judicial power of the Commonwealth’, but can be exercised by courts martial under a limited exception to the rules set out in Chapter III of the Constitution. The first view dominated the High Courts reasoning until Lane v Morrison (2009) 239 CLR 230, where the judges endorsed the second view. This article contends that the first and second views pose insuperable difficulties when placed in their broader constitutional context. The authors therefore argue for the third interpretation. They further argue that the constitutional basis for the third view strongly implies that military tribunals may only exercise jurisdiction over offences by military personnel that relate to service discipline.

Dissolving the Chimera of the Adam Smith Problem

In The Wealth of Nations, Adam Smith set out his influential theory that societies achieve prosperity by securing the freedom of individuals to pursue their own end by the means they choose within a framework of rules of justice. In his earlier work The Theory of Moral Sentiments, Smith developed his thesis about the origins of our moral sentiments and the emergence of rules of justice. The socalled ‘Adam Smith Problem’ concerns the perceived inconsistency between Smith’s defence of selfinterest in the Wealth of Nations and his emphasis of sympathy as the origin of moral sentiments in the earlier work. The existence of the ‘Adam Smith Problem’ has been contested by many writers. The present author provides a number of new arguments to demonstrate the illusory nature of the problem by revisiting the key elements Smith’s moral theory. The author argues that the problem dissolves when the role of justice in providing the conditions of free trade is understood. Smith’s tirade against wealth worship is explained as part of his defence of justice and not a condemnation of wealth accumulation. According to this reading, the Theory of Moral Sentiments is a powerful statement of the moral basis of capitalism.

The Separations of Powers, the Rule of Law and Economic Performance

Markets work best when the rules of the game are stable, property rights are secure and contracts are observed. These conditions are promoted by the rule of law in the classical liberal sense of the supremacy of general laws over public and private authority. Devices such as mixed government and the separation of powers are believed to be conducive to the rule of law. However, the degree of formal separation of powers in a constitution does not always co-relate to rule of law conditions and hence to economic performance. Hence the speculation that the separation of powers is not a necessary condition to the rule of law. The paper argues against such a conclusion by developing an account of the separation of powers that focuses on its methodological thesis in addition to its better known thesis of the diffusion of power.