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On the 'rule of law'

by Per Bylund

Conservatives and libertarians often claim an inherent value in the Rule of Law, a concept that to anarchists may seem a bit strange and, frankly, quite evil. Of course, most of us would accept the notion that predictable, principle-kind laws are much better than arbitrary rulings by a power elite (be it one man or many). Some would even claim society would be impossible without stable and just laws that are both predictable and intuitive.

Yet today, the rule of law seems like a joke. Even if enforced, who would want the literally thousands of laws of modern government to "rule"? After all, the laws are enacted (made up) by government in order to rule us. We might even say that contemporary society is guided by a rule of law — laws are the means by which the political class rules us all.

I have no doubt many conservatives have this in mind when advocating a rule of law: To rule by law. After the Bush II era, why would anyone think differently about the [neo]conservative movement and their "principled" take on government and the threat of terrorism (Read: The "threat" of brown people in foreign lands)? Many libertarians (of the statist variety) seem to have basically the same idea, even though they generally claim to want "fewer" laws by which we are ruled.

Yet this is not what the rule of law used to mean. In fact, the rule of law was a principle for civilised society long before there was modern governments and long before there was legislation. Consider this quote by the Ancient Greek philosopher Plato (granted, an evil thinker):

Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.

This was written some 2,500 years ago and the meaning is obvious: The rule of law is the "master" of government. In this modern day and age, such a statement means nothing: All laws are legislated (invented) by the political class and forced on us. So what does it mean that government — the political class — is subject to the rule of law?

The answer is simple: Law is not made, it is discovered. Hayek elaborated on the origins of law in his Law, Legislation, and Liberty, in which he showed that true and just law has nothing to do with government. The traditional and age-old concept of Law is a standard or norm for just behaviour that is inherent in our culture and traditions. Law is what we as a society or community believe is just; the rule of judges in such a society is to arbitrate between parties in conflict and, especially, to figure out who acted unjustly and what our societal values prescribe.

Granted, the rule of such law is highly predictable. But it is not stable — it is a living body of law (not laws) that is ultimately dependent on our personal and communal values. The rule of law is nowhere close to the rule by law.

Statists fail to understand Hayek's point, as did Hayek himself (he failed to understand the logical conclusion of Hayekian thinking). Law is not dependent on government, which means society can and will survive and prosper without a ruling class or body. Only legislated law is dependent on government, since government is the only entity with the power to force decrees on society. But legislated law is not Law in the traditional or ancient sense; it is but command and needs to be supported by the threat of force. True law is but the standard of justice according to which we interact with others.

At this point we need to ask statists what they mean by saying they advocate the rule of law. Do they refer to legislated law and therefore advocate a "might makes right" kind of society that is ruled by law? Or do they refer to law in the sense of spontaneously emerging rules for just behaviour, under which government too is subject? If the former, they are truly the enemies of man and liberty — and consequently need to be dealt with.

If the latter, then they ought to realise there is no need for government. In fact, any government is necessarily subject to the law practiced and understood by people in their actions and interactions. As such, it is both uncalled-for, intrusive, and an unnecessary burden on society. What we need is to set the market free in order to discover our common sense of justice through voluntary interaction and free trade. And to once and for all rid ourselves of the yoke of government.

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