177【中古時期法治主義之源起】 F.A.Hayke，The Constitution of Liberty： Individual liberty in modern times can hardly be traced back farther than the England of the seventeenth century。It appeared first，as it probably always does，as a by-product of a struggle for power rather than as the result of deliberate aim。But it remained long enough for its benefits to be recognied。And for over two hundred years the preservation and perfection of individual liberty became the guiding ideal in that country，and its institutions and traditions the model for the civilized world。 This does not mean that the heritage of the Middle Ages is inrelevant to modern liberty。But its significance is not quite what it is often thought to be。True，in many respects medieval man enjoyed more liberty than is now commonly believed。But there is little ground for thinking that the liberties of the English were then substantially greater than those of many Continental people。But if men of Middle Ages knew many liberties in the sense of privileges granted to estates or persons，they hardly knew liberty as a general condition of the people。In some respects the general conceptions that prevailed them about the nature and sources of law and order prevented the problem of liberty from arising in its modern form。Yet it might also be said that it was because England retain more of the common medieval ideal of the supremacy of law，which was destroyed elsewhere by the rise of absolutism，that she was able to initate the modern growth of liberty。 This medieval view，which is profoundly important as background for modern developments，though completely accepted perhaps only during the early Middel Ages，was that ” the state can not itself create or make law，and of course as little abolish or violate law，because this would mean to abolish justice itself，it should be absurd，a sin，a rebellion against God who alone creates law ”。For centries it was recognized doctrine that kings or any other human authority could only declare or find the existing law，or modify abuses that had crept in，and not create law。Only gradually，during the later Middle Ages，did the conception of deliberate creation of new law－legislation as we know it－come to be accepted。In England，Parliament thus developed from what had been mainly a law-finding body to a law-creating one。 F.A.Hayek，The Constitution of Liberty，（London：Routledge & Kegan 1960），pp.162-163。
Posted on: Tue, 23 Jul 2013 08:52:20 +0000
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