The Rule of Law

[Based on Chapter 21 of my book, Freedom or Serfdom? The Case for Limited, Constitutional Government and Against Statism]

Rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of that knowledge. (F.A. Hayek)

It was the most boring high school assembly in memory, at least the first part. Our congressman spoke and blew enough hot air to bake Alaska. I don't remember what he said, but I do remember thinking it was about as useful as a snowmobile in the Amazon jungle. It was so bad that the principal had our government teacher speak after the congressman finished. He was much better; he compared the rule of law with the rule of men. He explained that we have fixed laws, established by duly constituted legislative bodies. We can depend on those laws, both to protect us and to allow us freedom to engage in legal activities. No arbitrary authority changes the law on a whim. Violations of law are prosecuted on the basis of evidence.

I found our teacher's comments very impressive; that is the way the law should work. Only later did I see the problem: any government is ultimately a rule of men. It is men and women who make laws. More importantly, it is men and women who enforce them, who decide if the accused is guilty or goes free, who decide if the law shall be enforced on everybody or only on some of the people. In short, it is men and women who decide if the law shall be only so many words, or if we will really abide by the rule of law. And those men and women are subject to temptation. They may apply their own desires and prejudices rather than what the law actually says. Unless restrained, powerful politicians and bureaucrats will create a rule of men. We will have rule of law only if we insist that our officials follow the law and constitution.

As I write this, we have a president who has decided that he can pick and choose which laws he will enforce and which he will ignore. He has unilaterally changed immigration law, the requirements for being on welfare for a limited time, and even parts of his own signature health care reform law. The health care law is especially interesting. That law makes it illegal to sell health insurance policies that do not meet certain requirements.  After many complaints, the president decided, unilaterally, that he would allow the sale of policies that do not meet requirements. Then, when some in Congress suggested officially changing the law to allow what the president was doing, he threatened a veto. That is rule of man, not rule of law.

Did the president help the people with his unilateral decision on which insurance policies can be sold? Maybe, maybe not. It is certain that he created the confusion normally attendant to rule of men rather than of law. Citizens do not know if the president is going to change the law again tomorrow. He could decide that the law applies after all and invalidate all those insurance policies.

Sadly, we have people in positions of power who ignore Constitution and constitutional law, and instead use their power to change the law to their own taste. Those people also often change their rules to fit the situation; citizens cannot know what the rules say at any given time.

Unless we use both our power of the vote and our ability to write our representatives, they will rule as men or women, not rule of law. We must think about our vote and then hold our employees accountable.

[And I have a favor to ask of my readers, if there are any. The frustrating aspect of blogging is that I do not know if anyone is reading. If you do read this, please click the comment block and let me know. Just a couple of words such as "I'm reading" will let me know that I'm not talking to a vacuum. Thanks.]