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.

Too Much Information

Most people are, I hope, familiar with the incredible universality of mathematics. At the most primitive level, they learn this in first grade when they learn that the observation that three apples plus two apples gives them 5 apples is a special case of the arithmetic result 3+2=5. Less well known is a common beautiful mathematical phenomenon: many problems are hard to solve until they are generalized. In other words, it may be easier to simultaneously solve infinitely many different but related problems than to solve a single one alone. The reason for this varies. Sometimes the salient features of a problem only become visible when viewed from a sufficient distance.

In government the same phenomenon holds. It is often impossible to decide rationally whether to support or oppose particular legislation unless one has a governing rule guiding one's support or opposition to large classes of legislation. There are simply too many plausible ways to spend taxes, too many unintended consequences, too many opportunities to feed sweets to a diabetic, and too many "slippery slopes" for a rational legislator to decide issues in isolation. A rational theoretic framework for deciding issues is often called an ideology. For some reason, many view this term negatively, with the subscribers to an ideology called ideologues, and the latter term synonymous with unreasoning dogmatism and inflexibility. Hayek, in The Constitution of Liberty observes,
" A government that claims to be committed to no principles and to judge every problem on its own merits usually finds itself obeying principles not of its own choosing and being led into action it had never contemplated."
This statement applies equally to individual legislators, and by extension, to individual voters.

In my canvassing work, I have encountered many unaffiliated voters who proclaim proudly that they adhere to no party; they always "vote for the man - not the party." Invariably, these voters are dramatically less informed about the issues and candidates than their partisan colleagues on both the left and the right. It seems their position is simply an excuse for intellectual laziness.

Life is too messy to fit into any axiomatic framework (which is another way of saying again that I am not a Libertarian), but in politics as in mathematics, the attempt to frame all issues within broader theoretical/philosophical contexts is an essential exercise for informing our views on the issues and conversely for testing and developing our ideology.

Milton Friedman's Twist on Hayek

Milton Friedman's Capitalism and Freedom has succeeded Boaz as my political bedtime reading. In my political readings thus far, I have been impressed and educated by Hayek's careful analysis of socialism, aggravated by Von Mises' sloppy analysis of liberalism, and much provoked to thought by Boaz's modern presentation of libertarian principles and their applications. Friedman, however, has been less exciting. Reading Friedman reminds me of reading Shakespeare and remarking on all the 'cliches'. Perhaps Friedman's impact on our current economic thinking has been so strong that his analysis now seems commonplace. I was, however, struck by an observation in Chapter II: The Role of Government in a Free Society. Friedman notes that government action, unlike market action, imposes conformity. The greater the scope of government action, the more areas in which people are forced to conform. Extending the range of the imposed conformity too far works to undermine social cohesion and generate conflict. This is reminiscent of Hayek's assertion that the massive legislation required to implement socialist economic policy is incompatible with democracy: the vast scope of the legislation makes it exceedingly unlikely that a majority can agree on any economic plan, leading socialist proponents to circumvent the democratic process in order to impose their program. (Of course, our current congressional leadership has obviated this obstacle by the simple expedient of convincing the Democratic majority to vote for enormous bills without actually reading them.) Friedman transfers Hayek's assertion from the House and Senate to the electorate: the greater the number and impact of government intrusions into citizens' lives, the more likely any given individual will be strongly opposed to some aspect of government action, with possible consequent disruption of society.

While I find Friedman's extension of Hayek's assertions intriguing, I have not seen much evidence of consequent social disruption. The Tea Party movement suggests that large numbers of Americans have decided that government intrusion into their lives has indeed exceeded their tolerance. Observe, however, that the response is political rather than social. I am not sure what form social disruption is supposed to take, although visions of rioting and striking French workers come to mind. Of course Europeans accept with little protest dramatically greater government control over their lives than Americans endure. Their history, however, differs from ours; in particular, they have never experienced the degree of individual liberty that Americans have long enjoyed and taken for granted. A great conservative fear at the time of the passage of Obamacare was that Americans could be lured into the same servile attitude towards the government.

When wondering how much government intervention American voters will tolerate, one is led to ask to what extent voters accept government impositions simply because they are advocated by their 'team' (i.e. political party)? In the same vein, as most of us ask as soon as we become politically aware, why are attitudes toward homosexuality, immigration, carbonophobia, class warfare, etc. linked? Presumably people choose their positions on issues based on their party affiliation at least as often as they choose their party affiliation based on their stands on issues. Perhaps the rise of the unaffiliated voter is important to consider in this context. As government reach expands, political parties must take stands on an ever wider variety of issues. Perhaps it is becoming ever harder for many Americans to affiliate with either major party; there are simply too many axes of potential disagreement. Unfortunately, opting out is a poor choice. The unaffiliated have little impact at the primary level; so, they share responsibility - through inaction - for the poor choices we often face in general elections. Once again I am led to appreciate the increased voter participation represented by the rise of the Tea Party movement. If the Tea Partiers are successful in rolling back government overreach (admittedly a long term project), then an amusing consequence could be a rise in voter identification with both parties. When the Republicans and Democrats no longer need to take stands on whether it is better to allow a hip replacement at age 70 instead of state of the art cancer drugs at age 75, it will be easier for voters to find a party with which he has no deal breaking disagreements.

Hayek, Health Care, and Reconciliation

Democrats often cite Hayek's implicit approval of state assisted health insurance (The Road To Serfdom, chapter 9) when supporting the current Democratic efforts to drastically remake the U.S. health industry. This legislative sausage, however, is better treated as an illustration of one of Hayek's arguments for the incompatibility of socialism and democracy. The illustration does not require you to accept the assertion that this legislation is, in fact, creeping socialism.

In The Road To Serfdom (Chapter 5), Hayek argues that while it is possible for a democratic people to agree to empower the state to manage a sector of the economy in order to achieve a desired social goal, the execution of such a program "requires more agreement than in fact exists." Too many choices between competing priorities and too many value judgments must be determined for any majority to agree to the entire plan. Hayek argues that success can only be achieved by taking the plan outside the democratic process, placing ever more power in the hands of unelected and unaccountable individuals, paving the way for the eventual loss of democracy.

The broad goals behind the attempt to reconstruct our entire health care system, especially universal coverage, garner broad support. A vast array of choices including: who pays, how to ration care, and ultimately whom the state will allow to die must be included in such a vast state mandated plan. None of the proffered plans have been able to win majority support of the voters for all these myriad elements. The Democratic leadership, however, has invented a new technique for bypassing Hayek's problem: drafting 1000+ page bills and forcing votes on them without allowing the congress an opportunity to read the bills. Even these corruptions of our democratic process have foundered on the rules of the senate. In order to push such a plan through, the Democratic leadership talks of further subverting the rules of the senate using the reconciliation process.

The Democrats forget that each corruption of the democratic process introduced for what they deem a current good can be used later, perhaps to achieve an end they abhor.