The Rule of Law, R.I.P.

by Sheldon Richman, April 2001
Freedom Daily (The Future of Freedom Foundation)

THERE IS LITTLE LEFT of the rule of law in the United States of America. To be sure, things are worse elsewhere, but that gives no comfort. We live under a regime in which the traditional features of the rule of law are largely absent.

No one claims to be against the rule of law. Quite the contrary. But most people are sufficiently ignorant of what it entails that they might as well oppose it. F.C. von Savigny wrote in the 19th century, “The rule whereby the indivisible border line is fixed within which the being and activity of each individual obtain a secure and free sphere is the law.” Like F.A. Hayek in The Constitution of Liberty (where I found this quotation), I will be guided by that conception of law in this article.

A necessary (though not sufficient) condition for the rule of law is that laws be applicable to everyone and not adopted with an eye toward benefiting particular persons or groups. (Implicit in this is that laws be knowable in advance of taking an action.) This is equality before he law. As Hayek wrote:

It is because the lawgiver does not know the particular cases to which his rules will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws not men rule. Because the rule is laid down in ignorance of the particular case and no man’s will decides the coercion used to enforce it, the law is not arbitrary. This, however, is true only if by “law? we mean the general rules that apply equally to everybody. This generality is probably the most important aspect of that attribute of law which we have called its “abstractness.” As a true law should not name any particulars, so it should especially not single out any specific persons or group of persons.

This aspect of law is important, but only if one shares the classical liberal, or libertarian, objective of law. In that view, law protects individual liberty. The force of law may be directed only at those who violate liberty. It may not be used against someone merely because he does not agree about what is desirable. Law is not intended to bring about particular ends. Rather, its purpose is to create a framework in which individuals are free to pursue their own diverse ends unmolested by others. Only under those circumstances does law advance liberty. As Hayek elaborated in the first volume of Law, Liberty, and Legislation: Rules and Order,

In the usual sense of purpose, namely the anticipation of a particular, foreseeable event, the law indeed does not serve any purpose but countless different purposes of different individuals. It provides only the means for a large number of different purposes that as a whole are not known to anybody. In the ordinary sense of purpose law is therefore not a means to any purpose, but merely a condition for the successful pursuit of most purposes.

This feature of law ” that it envisions no particular outcome but only the freedom of people peacefully to pursue their own objectives ? is a defining characteristic of the rule of law. Turn the law into a tool for achieving particular objectives, and the rule of law is no more. This is because its other defining characteristics must fall also. For example, since the particular objectives are likely to change with the shifting of political winds, the law’s certainty will vanish, leaving citizens no way of knowing day to day what the legislature might do.