In my April 2010 Freeman column I reflected on the rule of law. My reflections are below the fold.
Everyone agrees that the rule of law is good, both morally and economically. Almost no one—regardless of political ideology—dares to question the great goodness and importance of the rule of law.
I certainly don’t question it.
But what exactly is the rule of law? In answering this question we uncover reasons why persons with vastly different views on the appropriate role of government all sincerely proclaim allegiance to the rule of law.
Here is what is not of the essence of the rule of law. The rule of law does not exist simply because the government that issues commands and enforces the law is legitimately and democratically elected. The rule of law does not exist simply because commands and laws are enforced according to their letter, without bias or exception or corruption. The rule of law does not exist simply because everyone in society, including those with political power, is subject to the government’s commands.
Each of those traits of a decent political and legal system is desirable, but neither separately nor collectively are they the essence of the rule of law.
Rules and Laws
The rule of law exists when, and only to the extent that, the rules enforced by government are in fact law.
My definition might sound like a tautology. After all, don’t rules become laws precisely by being enforced by government?
No. But confusion over the meaning of “rule of law” springs from the widespread but mistaken belief that it is by virtue of being enforced by government that rules become law.
Law in fact emerges from the everyday actions of men and women in their ongoing efforts to thrive and to keep from bumping disruptively into each other. Law becomes embedded in the predominant expectations of persons in a community.
To pick an extreme example, the unprovoked killing of a peaceful person is not unlawful because government has declared the act illegal. Such an action is unlawful because it violates deeply held community norms and expectations. Striking from government’s statute books all proscriptions against murder would not in the least make murder lawful.
In principle, in a classically liberal world, a government formalizes laws against murder, and uses some of its resources to police against murder, because government is the organization in society that has the comparative advantage at performing such policing. For much the same reason that Starbucks specializes in retailing coffee, government (in this ideal world) specializes in enforcing law. And just as Starbucks responds to prevailing consumer demands—just as Starbucks is not in business to tell consumers what they want and don’t want, but instead is in business to serve consumers according to consumers’ specific tastes for coffee and pastries—a genuinely classical-liberal government is not in business to foist its demands and dictates on citizens, but instead to serve citizens by enforcing laws that exist independently of government.
Only by understanding law in this way can we make sense of the familiar stricture that “ignorance of the law is no excuse.” Because true law is always embedded in prevailing community expectations, society is happier and more peaceful the more people act lawfully—that is, the more people act consistently with these expectations. So the rare person who in fact does not know what these expectations are is not permitted to violate the law simply by pleading—or even by proving—that he really didn’t know that, say, it’s unlawful to take another person’s purse without permission.
There’s no sense of injustice in punishing such a purse-snatcher. The laws that are violated in such cases are not in any way arbitrary; they grew organically within the community and are important to its continued peaceful existence. Also, because the expectations that are “law” are in fact so widespread, the probability of any given law-breaker really being ignorant of the law is so slim that it’s not worthwhile to let his alleged ignorance stand as a potential defense against his prosecution.
Contrast this expectations-based understanding of law with the modern myth that laws are only those commands issued by the state. Would most of us be sanguine punishing, in the latter case, a law-breaker who really and truly was ignorant of the state’s dictate? I think not.
While it’s highly unlikely that, say, a purse-snatcher is unaware that purse-snatching is unlawful, it’s not at all unlikely that, say, a property owner is unaware that the legislature or a bureaucracy has declared it a criminal offense to fill in a small water hole in his backyard. Also, the fact that community norms do not proscribe property owners from filling in their water holes is strong evidence that filling in such holes does little or nothing to disrupt the smooth functioning of society.
So while ignorance of the law, as it is embedded in norms and expectations, truly is no excuse for violating the law, ignorance of legislative diktats is — or ought to be — a defense against failure to behave as the legislature commands.
Unfortunately, because legislative and bureaucratic diktats are mistakenly called “laws,” they too often receive a degree of respect and esteem that they do not deserve.
One genuine feature of the rule of law, therefore, that common parlance does get right is that the rule of law is indeed contrasted with the “rule of men”—that is, with the rule of specific persons. The rule of law is the rule of norms that have evolved into widely held expectations. No person, no committee, no Congress or Parliament or even court created these norms—these laws. Like market prices and patterns of production, true laws (to use one of Hayek’s favorite phrases) “are the result of human action but not of human design.”
The rule of law means general deference to those norms and expectations that emerge out of decentralized human action. The opposite—rule by diktat—always means rule by individuals exercising coercive power to override these norms and expectations. The fact that these individuals who exercise this power might be elected in no way transforms the diktats they impose into true law.
Law as it is defined here is never perfect. It can be, and historically has been, infected with any number of imperfections. But it has the great virtue of seldom being a tool of power-seeking, or power-wielding, human beings. The diktats that power-hungry rulers create—and which these rulers call “law” in order to drape their diktats with faux legitimacy—are almost always tools to further the specific ends of the rulers without much regard for the long-run welfare of ordinary men and women.