|Montréal, 2 septembre 2000 / No 66||
by Edward W. Younkins
The rule of law requires that people should be governed by accepted rules, rather than by the arbitrary decisions of rulers. These rules should be general and abstract, known and certain, and apply equally to all individuals.
Constitutional governments are based on a previous commitment to freedom under the rule of law. The essential attribute of constitutionalism is a legal limitation on government. Under constitutionalism, rulers are not above the law, government power is divided with laws enacted by one body and administered by another, and an independent judiciary exists to ensure laws are administered objectively. An efficient and effective constitution allows government tofunction to protect the lives and liberties of citizens without violating the rights of some to provide gains to others.
Non-statist customary and privately produced laws continue to exist today.
Members of many voluntary associations prefer to operate under rules of
their own choice and making rather than relying on those of a coercive
Conventionalists maintain that law and justice are merely man-made conventions and that no action can be deemed to be right or wrong unless a particular populace, through its customs or positive laws, declares that it is right or wrong. Positivists espouse relativism and subjectivism with respect to what is proper or improper.
Natural law opposes the idea that moral law is relative, subjective, and changeable. Natural law provides a criterion by which positive laws can be judged. If the law of the state runs counter to natural law, it is held to be unjust. Positive law and normative justice are not synonymous. If justice is pertinent then natural law is pertinent.
Natural law derives from the nature of man and the world. It is discoverable through the use of reason in accord with nature, eternal and unchangeable, and applicable to all persons. Natural law theory supports universally shared moral principles and norms that raise man above relativism and subjectivism.
Since natural law can be derived from what is inherent in human nature, it would be valid even if God did not exist. Thomas Aquinas has explained that there exists a system of moral beliefs accessible to human reason and independent of divine revelation. Man has a particular nature involving specific natural needs and the ability to use reason to recognize what is good for man in accordance with those needs.
Although natural law is essential to Christianity, Christianity is not essential to natural law. Natural law is in agreement with God's will, not because of divine revelation, but because the nature of man and the world mirror God's will. A person does not have to be a Christian to understand the conditions and framework of human existence and social life, although believers in the Divine will avow that the conditions and framework are of God's creation. In creating each existent, God implanted the law of its nature within it. The law of nature, as dictated by God, is superior in obligation to all other laws. To believe in the natural law is to believe that there are moral standards that transcend the customs, practices, and laws of any given community. Positive law can be viewed as the system of rules created by humans in their attempts to put natural law into practice.
The Rule of Law
Law is the activity of subjecting human behavior to the governance of rules. The rule of law is concerned with regulating the use of power. Whereas society is a spontaneous order, the state is a protective agent with the monopoly role of enforcing the rules of the game. Since the monopoly on coercion belongs to the government, it is imperative that this power not be misused. Under the rule of law, everyone is bound by rules, including the government.
As explained by Hayek in his various works, the rule of law requires law to be: 1) general and abstract, 2) known and certain, and 3) equally applicable to all people. The rule of law also necessitates independent judges unmotivated by political considerations and protection of a private domain of action and property.
In a free society each person has a recognized private sphere, a protected realm which government authority cannot encroach upon. The purpose of law is to preserve freedom and moral agency.
The rule of law is a meta-legal principle. Similar to natural law theory, it provides a benchmark against which laws can be evaluated. From this perspective, law is about the discovery of the rules of just conduct. For example, the history of common law has been one of attempting to discover general rules that will foster a smoothly functioning social order. There is a large amount of natural law precedent embodied in the common law.
The rule of law ensures that judges decide disputes in terms of existing known and general rules and not according to the perceived desirability of particular outcomes. The purpose of the judge is to maintain an order, not to attain some specific result or direct society's resources to particular persons or uses. His function is to ascertain, articulate, and refine the rules of justice that will permit the preservation of the social order. A judge is not to issue edicts – he is only to rule when a dispute is brought to him. Once law has drawn the boundaries of individual discretion, courts should not second guess individual use of that discretion. Judges should carry out the law – not change the law.
Distributive (i.e., social) justice is irreconcilable with the rule of law. The rule of law only establishes the rules for the social game. These rules of just conduct are applicable to an, as yet, unknown and indeterminate number of persons, cases, and instances. These rules have no reference to particular persons, places, or objects. In short, such laws do not try to designate who will be winners or losers or what the society that emerges from these rules will look like.
Hayek has distinguished between two different kinds of laws. The first involves man's attempts to discover and express clearly what the general rules of justice really are. Here the law is essentially discovered, not made. These laws apply to all, including the leaders. Power should be divided with laws made by one body and administered by another. Also, an independent judiciary is required to make certain that laws are administered fairly. Those who administer the law should have little or no discretion. The second type of law involves rules dealing with the internal operation of the organization. These administrative measures are devised to run the internal operations of the government. Essentially, these commands tell civil servants how to carry out their duties regarding the running of the bureaucratic public sector.
There has been a tendency for the law-finding function of the government to be confused with its administrative functions. A great deal of what we think of as law today is really administrative legislation meant to direct the internal operations of the government, rather than to preserve justice. In other words, the organizational rules of authorities are mistakenly given the same status as general rules of justice.
As the distinction between administrative commands and rules of justice became blurred, the restraints on government power have weakened. This led to the false impression that our elected officials possess and should possess as much power in deciding the rules of justice as it has in the formulation and execution of administrative proposals. It is no wonder that many of our elected officials think they are
Hayek saw the problem as stemming from the fact that the power of conducting the government and the power of discovering the rules of just conduct are combined in the same representative bodies. As a result, over the years, legislation has increasingly included directives commanding people how to act with the goal of attaining specific outcomes. During the last half century, the rule of law has been displaced with what has been termed
In addition, the rule of law is further weakened when legislative and judicial power is delegated to unelected government bureaucrats. Starting in the 1930s, Congress began passing general laws, leaving the details up to administrative agencies. These agencies enforce and interpret their own rules and regulations which, although they have the force of law, have not been ratified by the Constitutional lawmaking authority.
Pluralism and Constitutionalism
Pluralism and constitutionalism share a skepticism toward the concentration of power. Whereas power is the force by which one can compel others to obey, authority is the right to direct and command (i.e., to be obeyed). Authority requests and requires power. Authority is restricted to assigned areas. Given the corruptible nature of human beings, there is a tendency for power to overflow its bounds. Power exercised without authority is a threat to freedom.
Authority would be necessary even if society solely consisted of saints and wise men. Authority is necessary to ensure unity of action within an organization. Legitimate activities call authority into being. It is the creation of a position or an office, not one's appointment to it, that represents the authentic investiture of authority. Authority goes with an office, is impersonal, and is essentially independent of the person who exercises it.
Power is an instrument of control. It is exercised legitimately when it is employed to discharge effectively the functions of the office. If power exceeds the means appropriate to these functions, it becomes illegitimate.
Pluralism, both the cause and effect of freedom, involves multiplicity, diversity, and often times, conflict. Pluralism requires tolerance, voluntarism, and a combination of individualism and voluntary associationism. The aim of pluralism is a wide diffusion of power. Its structure is the voluntary groups working between the national government and individual citizens. When power is diffused into many bodies, imbalances of power are prevented and the individual is protected from the tyranny of the one, the few, or the many.
Pluralism is concerned with the distribution of authority and functions among the various sectors of society (i.e., the economic, political, and moral-cultural sectors) and among the various types of groupings within each of these sectors. A free society favors processes and devices that disperse decision-making power, thus enhancing the possibility for the use of individual freedom.
The advent of pluralism
It was not until the medieval period, well after the fall of the Roman Empire, that circumstances favorable for pluralism were present. This was a time when authority was challenged and threatened (e.g., church and state, pope and emperor, emperor and king, king and baron, lord and vassal, etc.).
Only when men were forced to create new associations to perform functions once carried out by a powerful central authority did pluralism come into existence. Pluralism thus fostered individual freedom, responsibility, and creativity and encouraged the development and growth of new forms of association to meet human needs.
Constitutional governments are distinguished by specific restraints which try to ensure that power is not abused. By dividing power, a constitution provides a system of restraints upon government action. A constitution is a set of fixed written rules that limits the exercise of political power. The systematic use of written constitutions as fundamental and paramount law, enforceable in courts on behalf of citizens whose rights were encroached upon by these rulers, did not emerge until the end of the 18th century.
The impetus behind constitutional government was a desire for justice and the idea underlying restraints is of a higher natural law limiting the operations of the state. As an instrument, the Constitution is a grant of powers. The doctrine of enumerated powers, the cornerstone of the Constitution, held that the government had only those powers that the people have given it. It follows that the Constitution can also be viewed as a symbol of the reserved rights of the people. The belief that the legitimate governmental authority originates with the people is derived from the American political theory of the consent of the government.
Constitutional arrangements for protection of individual liberty presume a prior commitment to liberty under the Rule of Law. These American political traditions presuppose certain convictions about human nature. Since men are not angels, and since men are to govern other men, controls on the government are necessary. The idea of constitutional government also recognizes the natural rights of individuals and the moral responsibility of each citizen as a person. The American Constitution is thus designed to maximize each individual's equal right to pursue his own peaceful goals and experience the benefits and responsibilities of private ownership.
The American constitutional political system is based on a territorial distribution of power, the distribution of power among agencies with functionally differentiated realms of authority, a chronological distribution of power through periodic and frequent elections, and a written constitution enforceable by courts. With respect to the territorial distribution of power, portions of power are vested in state governments as opposed to the national government. Also, both national and state governments are populated by representatives of people from various geographical locations. Functionally, the constitution proposes that there are different types of governmental powers and that these powers should not be concentrated in just one body of government officials. The American solution has been to separate them into three kinds of power: executive, legislative, and judicial. Laws should be made by one body and administered by another. An independent judiciary is necessary to make sure the laws are administered fairly and objectively. In addition, pluralism provides a functional distribution of authority and additional restraints on power by maintaining many voluntary power centers throughout society. The chronological distribution of power places limits on the tenure of office.
In addition, the party system, the free press, and voluntary associations aid in holding government officials accountable. Politicians are kept responsible, not only through periodic elections, but through constant publicity of their actions and discussions and through citizens' rights to associate together and to petition the government. The eternal vigilance of the people is an important check on the power of the government.
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