The Rule of Law

The Rule of Law
We’ve lost the original definition of “Rule of Law.” Republicans abused it badly during the Clinton impeachment trials, but both parties bear responsibility for the perversion of this important concept.

Hayek gives us the classical definition:

“Government in all its actions is bound by rules fixed and announced beforehand--rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan ones individual affairs on the basis of this knowledge."

He explains that the Rule of Law should not be ad hoc, but it should be “the rules of the game,” predictable and understandable, allowing free people to exercise their rights while refraining from violating the rights of others. No exemptions for government or for special groups. No leeway for arbitrary exercise of power by bureaucratic fiefdoms. The tax code alone violates this principle.

We Are Here
70 years ago, Hayek described what an absence of the rule of law looks like.

...The use of the government’s coercive power will no longer be limited and determined by pre-established rules. The law can ... legalize what to all intents and purposes remains arbitrary action.

If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal--but its actions are certainly not subject to the rule of law.

By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable

The rule of law is a good and right exercise of the coercive power of government to protect the natural rights of the people. What we have today is a grotesque perversion of that Lockean principle that inspired our founders.

For a short explanation of Hayek’s classical understanding of the rule of law, see Charles W. Baird’s article, Hayek on the Rule of Law and Unions. Substitute “corporation” or “government" for his use of “union” in the article, and his point will still remain the same. A government that hands out favors and disrespects the natural rights of the free citizenry becomes debased, arbitrary and eventually, tyrannical.