Monday, August 29, 2011
Rule of Law
The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that, so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. This rule has little to do with the question whether all actions of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law.
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To say that in a planned society the Rule of Law cannot hold is, therefore, not to say that the actions of the government will not be legal or that such a society will necessarily be lawless. It means only that the use of the government's coercive powers will no longer be limited and determined by pre-established rules. The law can, and to make a central direction of economic activity possible must, legalize what ot all intends 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 Road to Serfdom: Text and Documents--The Definitive Edition (The Collected Works of F. A. Hayek, Volume 2), p. 119. (978-0-226-32055-7)
In my CC class (hi Naomi) we once had a debate over whether the (US) Constitution was a purely formal document or whether it prescribed a certain sort of government, rather than a certain form. I believe the conclusion was that while only a form was required, the form was senseless without a certain set of assumptions or values. So carrying out the motions required by the Constitution without holding to the prerequisite values would be sort of like taking the choreography from "West Side Story" and dancing it to the music of "42nd Street". You wouldn't really be getting much out of it.
A similar idea, I think, with the "Rule of Law". Just because a legislator has passed a bunch of laws doesn't mean that the result is the sort of state that is traditionally associated with free nations.