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Sunday, September 4, 2011

The Rule of Law: a naive perspective

As a mathematician who has never taken a course in political science, I am occasionally impressed by the shallowness of my understanding of fundamental political concepts. Watching the rise of crony capitalism under the Obama administration led me to realize I needed to understand better the concept known as "the rule of law."

In The Constitution of Liberty, Hayek frequently returns to the elaboration of the meaning of the simple term: "the rule of law." This broad phrase encompasses many ideas, including the following.
(i) You cannot have committed a crime unless you have violated a previously existing law.
(ii) There can be no ex post facto laws;
(iii) Laws cannot be targeted at individuals. In particular, proscriptive laws must be sufficiently general that any individual can easily avoid violating them.
(iv) Everyone is subject to the same law. Hayek weakens this to allow, for example, different rules to apply, for example, to women. Most important to the preservation of liberty, legislators should be subject to the laws that they create.
(v) The laws should written by a different group of men than those who administer them. This prevents laws being narrowly designed to fit particular cases.
(vi) Laws should be "known and certain." It should be (reasonably) clear whether or not you are complying with the law.

Rules that state, in effect, that you must do what a particular individual commands are a common violation of the spirit of (iii), (v), and (vi). The most common and least objectionable example is probably the ease with which we are punished for violating the commands of a policeman. Nonetheless, the ease with which a corrupt policeman can use such rules to create mischief show how wary we must be about making such exceptions.

Hayek further notes that the limitations on government power inherent in the idea of the rule of law must come from some law superior to the legislative; otherwise legislators could simply legislate the removal of these limitations. In the United States, the Constitution provides precisely such a superior law.

The rule of law has been weakened by both Republicans and Democrats in recent decades. The Congress has crafted ever vaguer laws, delegating the details to administrators in agencies or, in the case of laws like the "honest services" law to the ambition and imagination of district attorneys. This abuse achieved new depths with the passage of Pelosi Care. Even the passage of this law required violations of the democratic process. Sibelius's famous vast list of Obama friendly businesses exempted from various requirements of the law shows how incredibly quickly weakening the rule of law introduces rampant crony capitalism and other corruptions of our society.

Sibelius's infamous list led me to examine Hayek's discussion of the rule of law mentioned above. I was most interested to learn (revealing my political science ignorance) that socialists have long been opposed to the rule of law. In my youth, I had assumed that the Democrats' frequent attempts to avoid the restrictions of the constitution were merely a short sighted impatience with democracy itself, linked to the ubiquitous leftist conceit that their intelligentsia know better than the hoi polloi how society ought to be organized. According to Hayek, the socialists have long been opposed to the rule of law itself, because it restricts the ad hoc and intrusive government power necessary to control the economy. As the Constitution is the principal guarantor of the rule of law, the Democratic Party's long standing attempt to obviate constitutional limitations has much deeper roots than I had previously understood.

Conservatives like to note the similarities between socialist and fascist governments. Less inflammatory, and therefore perhaps more useful an observation when trying to influence educable Democrats, is the (old) observation that the weakening of individual liberties required to usher in the government powers attendant to the "progressive" agenda also weakens our defenses against other pernicious (even to the left) assaults on our liberty. As Hayek and others remind us again and again, despite the ideological differences between the socialists and the Nazi socialists, it was the weakening of the rule of law championed by the German socialists that paved the way for the triumph of the Nazis.

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