Rule of Law
The political and philosophical doctrine of the rule of law is an integral feature of the classical liberal theory. It is a necessary, if not sufficient, element to a well-rounded theory of what constitutes a proper liberal society and, in a practical sense, provides the carapace within which individualism, the market and private property, as well as personal or moral liberties flourish. Its connection with liberty was well described by Albert Venn Dicey, the English jurist, who wrote: “Liberty is not secure unless the law, in addition to punishing every kind of interference with a man’s lawful freedom, provides adequate security that everyone who, without legal justification, is placed in confinement shall be able to get free.”
The rule of law is a guarantee against arbitrariness inasmuch as everyone, including and especially government, is subject to its constraints. Unlike in communist regimes, where the government acts entirely on the whim of the Party, in regimes characterized by the rule of law, politicians are not exempt from legal rules. To quote Dicey again: “With us [the United Kingdom] every official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.”
The rule of law is often presented as an important mechanism to ensure limited government because under it, if governments have to go through an enormously complex process of law-making and judicial action and to overcome restraints against the arbitrary seizure of property, there is likely to be less of it. One illustration of this constraint is the writ of habeas corpus, which requires that a charge be leveled against a person before he can be held in police custody against his will. The rule of law may be called an end-independent doctrine, which dictates that whatever the ends of government, it must follow certain procedures if its actions are to be regarded as legitimate. This notion derives from the general skepticism that liberals hold regarding the ends of government. Because there are innumerable disputes about the good life, it is wise to tolerate a certain kind of pluralism in which rival versions of the good compete with each other under the rule of law. It also accords with the antirationalist reservations that are a strong feature of the liberal arguments of someone like F. A. Hayek.
In contrast, a much stronger argument for limited government derives from the claim that a set of morally and economically certain purposes of government are demonstrable from first principles. This approach is reflected in those constitutions that have bills of rights attached to them, such as the first 10 amendments to the U.S. Constitution or the European Convention on Human Rights. Although these two approaches to limited government may reach the same conclusion on many issues, it is important to remember their distinct philosophical foundations.
The features of the purely formal, procedural rule of law are best expressed by Hayek. In The Constitution of Liberty, Hayek noted that laws should be perfectly general, name no one person or group, and be nondiscriminatory. This generality requirement is consistent with the operations of the market, which is indifferent to the sexual, racial, or religious origins of its participants. Thus, any law embodying such criteria for market action would be alien to the rule of law on grounds of both efficiency and morality. To be fully consistent with the rule of law, a putative statute should name no person or group or confer any type of privilege.
The major difficulty with this feature of the rule of law is that it does not invariably protect people potentially targeted by government because it is easy to demonstrate how a perfectly general law could be written that does nevertheless discriminate against a minority. The majority Protestant province of Northern Ireland in the United Kingdom once had its own legislative assembly—now restored—which at one point passed a law forbidding the playing of sport in public parks on a Sunday. Without mentioning Catholics, this group was the losers because it was their habit to play sports on Sunday, whereas Protestants did not. Yet this law would have passed muster under Hayek’s standards. Indeed, the wholesale nationalization of the economy would be consistent with Hayek’s rule of law, but seizing little bits would be discriminatory. It seems clear that if liberty is to be guaranteed, something more than the formally correct wording of a rule is required. Perhaps only a list of rights, a rationalistic, un-Hayekian approach, can properly protect liberty.
The same problem arises with respect to Hayek’s position on taxes. He quite rightly sees the progressive income tax as a breach of the rule of law because it treats high earners unequally, but his preferred solution, a proportionate income tax, raises as many problems for libertarians. After all, this tax could in principle raise as much money as does a progressive tax. Yet perhaps there should be an absolute limit on the state’s taxing powers, rationalistically determined. Although the rule of law prohibits retrospective legislation, and although a market could not work if what were legal today became illegal and subject to punishment tomorrow, are not all tax laws retrospective?
Even more important is the question of sovereignty. Almost all English proponents of the rule of law saw the final authority of law lying in the sovereign: first in the King and later in Parliament. They did not see, as the American revolutionaries later did, that sovereignty, however formulated and wherever located, was a threat to liberty and the rule of law. Dicey, the leading authority on the rule of law, was a fierce spokesman for both doctrines, sovereignty and the rule of law. Yet at the time he was writing, in the late 19th and early 20th centuries, the powers of an unlimited Parliament posed serious problems for liberty and the rule of law. The major victim of such regimes has been the individual property holder. It is true that in the period from 1945 to 1951, when Britain was governed by a socialist administration, all of its reforms were enacted within the confines of the rule of law. Yet the difference between mere legality and the rule of law had been noticed by a near contemporary of Dicey’s, Lord Hewart, in his prophetic 1929 work, The New Despotism.
In modern political thought, the theory of the rule of law is best understood in the context of democratic theory. Of course, there are many types of democracy, the most promiscuous word in political language: Almost all political doctrines profess their intimate connection with democracy. For the sake of convenience, the great variety of democratic theories may be reduced to two: direct and representative. The former, which derives from the politics of ancient Greece, envisages a direct role for citizens in political decision making. Traditionally, this form of direct democracy was reflected in the fact that citizens attended and voted in legislative assemblies. Outside the city-states of ancient Greece, however, this proved to be impractical, and in modern democracies the citizens take part by directly voting on issues through referenda. In representative democracies, the citizens’ political role is limited to the choice of representatives who have the time and leisure to debate issues. Proponents of the rule of law on the whole favor representative democracy. Under direct democracy, the great mass of people are likely to be moved by passion rather than reason, and the democratic system disintegrates into straight mob rule. The transient decisions of direct democracies, at least superficially, appear in conflict with the rule of law, which requires the security of longevity for rules to provide the stability that the market transactors need. Edmund Burke became the most eloquent spokesman for this point of view in his famous speech to the electorate of Bristol, where he maintained,
Your Representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion… . You chuse a Member indeed; but when you have chosen him, he is not Member of Bristol, but he is a Member of Parliament.
However, there is reason to doubt Burke’s wisdom in this regard because the main threat to the rule of law may come not from the mob, but from a myriad of interest groups that dominate modern representative assemblies. Public choice theory tells us that the modern representative is as self-interested as any market trader and cannot be relied on to act altruistically or to seek the public good. In attempting to gain government favors, they damage the rule of law. As Mancur Olson maintained,
It does not follow that the results of pressure group activity would be harmless … even if the balance of power equilibrium kept any one group getting out of line. Even if such a pressure group system worked with perfect fairness to every group it would still tend to work inefficiently.
All of this pressure group activity is in breach of the rule of law as Hayek understands it.
However, there are examples from modern politics that show that direct democracy can produce classical liberal, or at least conservative, results. Perhaps the best of these is Switzerland, where the regular use of the referendum at the cantonal and federal levels has insulated the country from the advance of European socialist programs. Even today the combined spending of the cantons is still more than that of the federal government: a situation that has not obtained in the United States since the early part of the 20th century. In 2005, the electorates in the Netherlands and France rejected by referendum the proposed heavily centralist European constitution. In Japan, former Prime Minister Junichiro Koizumi conducted the 2005 general election as if it were a referendum on his plan to privatize the postal system: a market scheme that had been held up by a previous Parliament riddled with pressure groups.
Despite the depredations that it has suffered from communism, socialism, and, more surreptitiously, unlimited democracy, the rule of law remains an essential building block in the framework of a free society. Indeed, there are encouraging signs in the United States that some traditional values with respect to property are being reasserted. Over the past 20 years, the Supreme Court has delivered several decisions favorable to property owners in disputes involving the several legislatures’ use of the takings power (eminent domain). If transactors are to be secure in their dealings, they need a reliable set of rules and not the creative activity of politically motivated judges. In a world of uncertainty about science, religion, and art, in a genuinely liberal society, these ultimate questions must be left to the individual conscience and not placed in the public domain, where government can use coercion to enforce its beliefs.
However, as Hayek has pointed out, there is a distinction between law and legislation. The former encompasses private actions, especially economic ones, and the rules that enable people to conduct their aims peacefully. The latter refers to those public actions that the state undertakes; legislation is not a series of guidelines, but a structure of commands. People are ordered to do things that they would not do or to refrain from doing things they otherwise would do were governments effectively restrained by the rule of law. In the modern world, there is too much legislation and not enough genuine liberty-enhancing law.
The rule of law is a necessary condition for a free society. However, it must be supplemented by other protections, notably constitutionalism and the absolute guarantee of private property. Only if these are realized will we really have a society governed by the rule of law and not the rule of men.
Barnett, Randy. The Structure of Liberty: Justice and the Rule of Law. New York: Oxford University Press, 2000.
Hayek, F. A. Constitution of Liberty. Chicago: University of Chicago Press, 1960.
Hobbes, Thomas. Leviathan. Richard Tuck, ed. Cambridge: Cambridge University Press, 1996.
Locke, John. Two Treatises on Government. Peter Laslett, ed. Cambridge: Cambridge University Press, 2005.
Madison, James. “Federalist No. 10.” The Federalist. Clinton Rossiter and Charles R. Kesler, eds. New York: Signet Classics, 2003.
Olson, Mancur. Power and Prosperity: Outgrowing Communist and Capitalist Dictatorships. New York: Basic Books, 2000.
Originally published .