Thursday, July 29, 2010

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.  


Always On Watch said...

We’ve lost the original definition of “Rule of Law.”...


Now, how do we get back our "Rule of Law"?

Silverfiddle said...

Good question. The pessimist in me says the genie's out of the bottle.

How do you get a group of powerful people (congress) to voluntarily relinquish the power they have usurped?

Ray said...

WE know the way in extreme ER, we just can't talk about it here ;)

I wonder daily to what degree they're combing these posts and comments because trolls have disappeared, ya know?

Me thinks that's so their names and handles aren't seen in the Google scrape. I don't care, but just a thought.

We'll see in Nov. if they've rigged it because we know they're outnumbered big time this time.

Bastiatarian said...

>How do you get a group of powerful people (congress) to voluntarily relinquish the power they have usurped?

We make them afraid--terrified in fact--of us. We make sure they know that if they hurt us, we will hurt them more. We make sure they know that we will use whatever means necessary to uphold legitimate law founded on the right to our own life, liberty, and property, and that we will use whatever means necessary to destroy any illegitimate law that in any way violates that right.

The problem, of course, is that there have to be enough of us. That means that our first job is to educate people. We need to be relentless is teaching the principles of liberty, and either the American people will embrace it and we will prosper as a nation, or the American people will reject it--knowing full well what they do--and the nation will crumble.

Fredd said...

Great philosophical point: 'How do you get a group of powerful people (congress) to voluntarily relinquish the power they have usurped?'

The Republicans are going to walk into a lot of power after November. Power that was usurped. Will they give it back?

Let me pose a hypothetical: a high school senior is rewarded for graduating with honors by his Dad with a brand new Mustang.

The father ordered the Mustang with a four cylinder, but when the car arrived, it had a Carol Shelby package in it, with a monster turbo V8 that puts out about 800 hp.

The Dad wants to return the car, but the kid wants to keep the car, and promises he will drive it like Granny would. He will never use the power, he promises.

What are the odds the kid gets pulled over doing 175 mph in a 65 zone?

That would be the rhetorical question that could be answered similarly to the one posed above about giving back usurped power.

Silverfiddle said...

Fredd, you've always got a way of bringing it home...

The founders pondered this, and they affixed a brick under the gas pedal.

Verminous politicians and crony capitalists have been chipping away at it ever sense.

Linda said...

Excellent post! Aristotle said that "the law is reason, free from passion." I think that not only is our country suffering from a shortage of reason, we are drowning in passion. The result is just as you pointed out, a dangerous loss of understanding of the rule of law. Our "touchy-feely" liberal majority uses their passionate speech to "bury" reason. They have made their passion for progressive social change center stage while quietly backstage, they destroy logic and reason. It is all done, of course, to hide their true agenda...the destruction of capitalism and the Constitution.

Trestin said...

It's the ad hoc nature of our present system that has created much of our problems. This is why small businesses are not hiring people.

Silverfiddle said...

Precisely, Trestin. Ad-hoc is the opposite of The Rule of Law.

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