Principle for a Free Socieity RULE OF LAW

[William M. Finley]

Principles for a Free Society RULER OF LAW

BY Nigel Ashford

The rule of law

“Intelligent beings may have laws of their own making; but they also have

some which they never made.”

Charles-Louis Montesquieu

What is the rule of law?

Law is commonly used to described those rules adopted by legislatures

or governments which all are expected to obey. The Rule of Law however

means that there is some higher law to which ‘laws,’ usually legislation,

should follow. Legislation and government orders can be measured against

a set of moral principles known as natural law. Among these principles of

the rule of law are equality before the law, the principles of natural justice,

general and abstract rules, and an independent judiciary. The purpose of

these rules is to protect the freedom of the individual against the state.

The idea of law as something that is discovered rather than simply a

product of human will has deep roots. Even in classical Athens at the

height of its democracy, it was not possible to alter the law by a decree

of the assembly. Roman law was almost entirely found by jurists rather

than by the decrees of emperors and senators. A major principle was

established: ‘an unjust law is no law,’ ‘lex injusta non est lex’. The codification

of this body of laws by the Emperor Justinian was largely an

attempt at articulating laws that already existed in this way and were

recognised and obeyed. It did not involve the creation of new laws.

In the Anglo-American world this developed as common law, discovered

as a result of cases and precedent. So the British Parliament was able to

evoke the common law against the power of monarchs, as Sir Edward

Coke did against King James I. The American colonists demanded that

the colonies be ruled by the traditional laws and liberties of Englishmen

against the ‘laws’ passed by the British Parliament. On the continent of

Europe this tradition followed a different path known as the Law State

or ‘Rechtsstaat’, which recognised that all government actions were subject

to laws. Every action of government has to be justified by identifying

the law which legitimates the government action. This can be seen

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in every law adopted by the European Union, that some reference must

be made to the authority to act or legislate in a treaty of the EU. The

UN Declaration of Human Rights recognises some of these principles in

Articles 7-11. The European Convention of Human Rights similarly

upholds higher laws over national legislation.

‘A government of laws, not men’

The rule of law is contrasted with the rule of men. Of course laws are

made by men, but they should follow or be judged by a higher or

fundamental law. These laws or rules prevent the exercise of arbitrary

power. “In this sense,” said the English constitutionalist A. V. Dicey,

“the rule of law is contrasted with every system of government based on

the exercise by persons in authority of wide, arbitrary, or discretionary

powers of constraint.” Rulers and legislators are themselves bound by

certain rules. Government cannot exclude itself from the laws. In many

countries, government actions are immune from prosecution that would

be illegal if carried out by a private individual.

This means that man’s relationship with man should be determined by

general principles embodied in a system of law and not subject to the

arbitrary dictates of monarchs, ministers and rulers. A society in which

some men are not accountable to the law is not a free society. The state

governed by law, the Rechtsstaat, means that rulers are subject to the law

as much as anyone else. The state cannot do as it likes but must obey

the law and can be held to account if it fails to do so.

Equality before the law

The law is no respecter of persons. The law must apply equally to all,

regardless of status or political position or power. The naming of

individuals in legislation, for example, is incompatible with this principle,

either to punish or exempt them. A common symbol of justice as

the blindfolded figure carrying two scales also conveys this sense of an

impersonal system of rules that applies equally to all. The law must be

impartial or neutral between persons, ignoring their class, religion, political

opinions, gender or sexual orientation. True justice is not concerned

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with who has done what, but what has been done. Law in this sense is

not and cannot be the tool of the state to destroy those in opposition to

it, or to grant favours to those who support it.

General and abstract laws

The philosopher Hayek claimed that laws must be general and abstract,

addressed to all, and cannot be addressed to particular persons or

groups. They must be universizable, apply equally to all and without discrimination

between groups and individuals. They must meet three standards:

consistency between similar cases; impartiality, they apply to oneself

as well as to others; and moral neutrality, they do not distinguish

between different conceptions of the good life.

“If all that is prohibited and enjoined is prohibited and enjoined for all

without exception (unless such exception follows from another general

rule) and if even authority has no special powers except that of enforcing

the law, little that anybody may reasonable wish to do is likely to be prohibited,”

claimed Hayek.

A planned society is incompatible with the rule of law. Government

planning requires that people and property be deployed in particular

places at particular times. Such a system cannot cope with individuals

making their own decisions about where to work and live. In planned

societies, government needs to identify and command particular people or

groups. A free society only requires law to enforce contracts and protect

individual freedom, so free markets require a framework of law to function.

The absence of this law has been a major obstacle to the creation of

free markets in many former communist regimes. Without such a framework,

powerful groups like the mafia will have a licence to exploit others.

The rules of natural justice

There are certain rules of natural justice, which all lawmaking should

follow. They include certainty, predictability, exclusion of retroactivity,

clarity, stability, no laws requiring the impossible, and the presumption

of innocence.

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Certainty allows us to plan our lives with the knowledge that, if our rights

are not respected by others, we can turn to the law or seek re-dress.

Corporate law, for example, would tell us what we must do to set up and

trade as a company. If someone owes the company money, or if that company

breaks a contract, the parties involved have recourse to the law

because it is a legal entity whose directors have legal rights and responsibilities.

Hayek doubted “whether the significance of which the certainty of

the law has for the smooth and efficient working of economic life can be

exaggerated, and there is probably no single factor which has contributed

more to the greater prosperity of the Western World.... than the relative

certainty of the law which in the West had early been achieved.”

If persons are to make decisions on the basis of the law, they must be

able to predict what actions will infringe the law. If the laws are so

unclear or subject to a high level of discretion, that they are unable to

act with certainty of whether they are breaking the law. In a story called

The Incredible Bread Machine, a baker is prosecuted for charging higher

prices than his competitors on the grounds that he was cheating his customers;

for charging lower prices on the grounds that he was seeking to

drive out his competitors; and for charging the same price, on the

grounds that he had conspired with other bakers.

Laws can only apply to future actions, not those of the past. Someone

cannot be prosecuted retrospectively, that is for carrying out an action

that was at the time not against the law. Someone should not be punished

for failing to carry out an act that was itself impossible.

The concept of an individual’s innocence until proven guilty is a fundamental

principle of natural justice. It is important that no person

can be regarded as guilty, even in the most incriminating of circumstances,

as it requires the authority to prove guilt, as opposed to the

fabrication of charges common in dictatorships.

An independent judiciary

One of the functions of the judiciary is to enforce laws against the government.

Therefore the judges must be politically independent of the rulers.

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This leads to the principle of the separation of powers: that different bodies

should be responsible for the making of legislation (the legislature), the

enforcement of legislation (the executive), and the adjudication of legislation

(the judiciary). The independence of the judges is protected by the process

by which judges are appointed, and the system of security of tenure, which

makes it difficult for rulers to remove them. Restrictions are placed on the

political activities of judges to prevent their subordination to others or subject

them to political influence. Judges should operate on the principle of

neutrality, that their political views or interests should not intrude on professional

behaviour. It is in this sense that law should be separate from politics.

Constitutionalism and limited government

The rules that bind governments can be found in several places. Judges

should have the powers of judicial review, to examine the government’s

actions and legislation to ensure that it has met the standards of the rule of

law. Judges can look to three sources to evaluate such actions. One source is

the written or codified constitution, so advocates of the rule of law are usually

also proponents of written constitutions. Alexander Hamilton, one of

the founding fathers of the US Constitution and an author of The Federalist

Papers, declared, “A constitution is in fact and must be regarded by judges as

a fundamental law.” Constitutions place substantive limits on what governments

can do. Another source is common law. Such law is not merely the

establishment of rules via a set of precedents; these only illustrate the law,

they do not make it. As an 18th century British judge wrote, the British

common law “does not consist of particular cases, but of general principles,

which are illustrated and explained by these cases”. The common law applies

general principles to particular cases in a way that the arbitrary decisions of a

dictator need not. A third source is the philosophical understanding of the

natural law, which is why so much legal debate is philosophical in nature.

The purpose of the rule of law is to protect the individual. Nothing more

clearly distinguishes a free society from an unfree one than the rule of law.

The difference between the rule of law and arbitrary power is as great as the

difference between a signpost telling us which way we must drive in order

to reach our destination and a government edict which restricts our freedom

of movement by telling us where and when we may travel.

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Reading

Friedrich Hayek, The Constitution of Liberty, London, Routledge, 1960,

chapters 11-13.

Friedrich Hayek, The Road to Serfdom, Chicago, University of Chicago

Press, 1972 (1944), chapter 6.

Bruno Leoni, Freedom and the Law, Indianapolis, Liberty Press, 1991

(1972).

Charles-Louis Montesquieu, The Spirit of the Laws, London, Dent,

1949 (1734).

Michael Oakeshott, Rationalism in Politics, Indianapolis, Liberty Press,

1991 (1962) pp. 384-406.

Questions for thought

1. Why is the rule of law valuable?

2. Can legislation ever be illegal?

3. How do we protect the independence of the judiciary?

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