The Rule of Law
Why is the rule of law so important? Law professor Tom W. Bell explains how the rule of law is a critical part of a free and tolerant society. The rule of law means that people are not subject to the arbitrary will of others. It means they can engage in activities that others might disapprove of without fear of persecution. When there is rule of law, people can buy property, plan businesses, and otherwise plan for the future with confidence. As Bell explains, the rule of law provides a necessary framework for civil society. To make his argument, Bell draws from such thinkers as Aristotle, John Locke, Thomas Paine, James Madison and Friederich Hayek.
- Constitutional Principles: The Rule of Law (Video): The Bill of Rights Institute provides brief scholar interviews and an engaging historical narrative.
- Two Treatises of Civil Government [Article]: John Locke’s classic defense of natural rights, especially property rights, and of government limited to protect those rights.
- Law, Legislation, and Liberty, Volume 1: Rules and Order [Book]: FA Hayek constructs the framework necessary for a critical analysis of prevailing theories of justice and of the conditions which a constitution securing personal liberty would have to satisfy.
- Rule of Law, Development, and Human Capabilities [Article]: J. Robert Subrick and Peter J. Boettke examine the impact of the rule of law on human capabilities.
- Economics and the Rule of Law: Order in the Jungle [Article]: The Economist explores the history of the relationship between the rule of law and development economics.
The Rule of Law
Welcome to the best little strip mall in San Clemente. It’s offers one-stop shopping for your pursuit of happiness, from condoms, to beer, to bongs, cheap pizza, donuts, cigarettes, and lotto tickets. It’s got easy money if you plan a shopping spree and tools of war if things head south in a hurry. Almost anybody can find something to like here. More importantly though, almost anybody can find something to dislike, to criticize as pornographic, addictive, and/or dangerous. And yet this strip mall stands. It stands as a monument to the virtues of toleration, liberty, and free trade. For all this, we can thank the rule of law.
The rule of law, in its most basic form, guarantees that we can reliably predict whether or not our actions will land us in court. The rule of law thus requires that the public have ready access to the laws and that the laws apply only prospectively, never retroactively. The rule of law means equality before the law. No one can rise above it.
Aristotle made the point thousands of years ago, “The rule of law . . . is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law.” John Locke, in his Second Treatise, put the matter this way, “Freedom of men under government is, to have a standing Rule to live by, common to everyone of that Society, and made by the Legislative Power erected in it; a Liberty to follow my own Will in all things, where the Rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another man.”
Thomas Paine, a political theorist, who gave voice to the American revolution of 1776, made the point with characteristic vigor. “In America, THE LAW IS KING.”
Without the rule of law, this strip mall probably wouldn’t even exist. If you can’t find, figure out, or predict the law, you won’t invest in real estate, build up an inventory, or engage in long-term contracts. Indeed, without the rule of law, you probably won’t risk more than simple barter.
Is the rule of law simply a matter of procedure? Or does it also concern the content of rules? Thinkers in the classical liberal tradition have argued that if the rule of law means anything, it has to protect the individuals against state power. Nobel Prize winning economist Friedrich Hayek observed that the procedural aspects of the rule of law shape its substance. The rule of law must protect individuals against overarching state power, because otherwise, complete power will create complete confusion. “When the government has to decide how many pigs are to be raised, or how many busses are to be run, which coal mines are to operate, or at what prices shoes are to be sold, these decisions cannot be deduced from formal principles or settled for long periods in advance. They depend inevitably on the circumstances of the moment.” If the law tries to control everything, it simply can’t nail down all the details. Hayek concluded that the rule of law requires restraint on lawmakers and that this necessarily implies “recognition of the inalienable right of the individual.”
On that view, the rule of law means more than simply filing out the proper forms. I leave you with a cautionary quote from James Madison, one of those brave revolutionaries inspired by Thomas Paine. “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?”
You don’t have to approve of all the vices served by this strip mall to appreciate that it stands for a big virtue, the rule of law. The rule of law provides a necessary framework for civil society, allowing us to live together in peace and prosperity. Because the rule of law allows each of us an individual choice, we can each choose which of these vices, if any, to pursue. Me, I’m here for the haircuts.