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The Rule of Law, R.I.P.

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THERE IS LITTLE LEFT of the rule of law in the United States of America. To be sure, things are worse elsewhere, but that gives no comfort. We live under a regime in which the traditional features of the rule of law are largely absent.

No one claims to be against the rule of law. Quite the contrary. But most people are sufficiently ignorant of what it entails that they might as well oppose it. F.C. von Savigny wrote in the 19th century, “The rule whereby the indivisible border line is fixed within which the being and activity of each individual obtain a secure and free sphere is the law.” Like F.A. Hayek in The Constitution of Liberty (where I found this quotation), I will be guided by that conception of law in this article.

A necessary (though not sufficient) condition for the rule of law is that laws be applicable to everyone and not adopted with an eye toward benefiting particular persons or groups. (Implicit in this is that laws be knowable in advance of taking an action.) This is equality before he law. As Hayek wrote:

It is because the lawgiver does not know the particular cases to which his rules will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws not men rule. Because the rule is laid down in ignorance of the particular case and no man’s will decides the coercion used to enforce it, the law is not arbitrary. This, however, is true only if by “law” we mean the general rules that apply equally to everybody. This generality is probably the most important aspect of that attribute of law which we have called its “abstractness.” As a true law should not name any particulars, so it should especially not single out any specific persons or group of persons.

This aspect of law is important, but only if one shares the classical liberal, or libertarian, objective of law. In that view, law protects individual liberty. The force of law may be directed only at those who violate liberty. It may not be used against someone merely because he does not agree about what is desirable. Law is not intended to bring about particular ends. Rather, its purpose is to create a framework in which individuals are free to pursue their own diverse ends unmolested by others. Only under those circumstances does law advance liberty. As Hayek elaborated in the first volume of Law, Liberty, and Legislation: Rules and Order,

In the usual sense of purpose, namely the anticipation of a particular, foreseeable event, the law indeed does not serve any purpose but countless different purposes of different individuals. It provides only the means for a large number of different purposes that as a whole are not known to anybody. In the ordinary sense of purpose law is therefore not a means to any purpose, but merely a condition for the successful pursuit of most purposes.

This feature of law — that it envisions no particular outcome but only the freedom of people peacefully to pursue their own objectives — is a defining characteristic of the rule of law. Turn the law into a tool for achieving particular objectives, and the rule of law is no more. This is because its other defining characteristics must fall also. For example, since the particular objectives are likely to change with the shifting of political winds, the law’s certainty will vanish, leaving citizens no way of knowing day to day what the legislature might do.

The corruption of law

Which kind of “law” does the United States have today? The answer is not hard to determine.

The tragedy is that few people have any idea what has happened. Excepting the classical liberals and some conservatives, who are appalled, and the delighted conspirators who know exactly what they are doing, Americans do not know what they have lost. Unsurprisingly, the government’s schools have no interest in teaching children what law really is and how it has been perverted beyond recognition. How could they? They are part of the problem!

Thus Americans grow up thinking that the purpose of law is to distribute goodies. We have fulfilled Frederic Bastiat’s definition of the state: that fictitious entity by which everyone seeks to live at everyone else’s expense. To use Bastiat’s term, government is little more than “legalized plunder.”

Today, virtually every law proposed and enacted is designed with a particular outcome in mind. It is intended to help this or that group, to subsidize this or that mission, to restrict this or that peaceful behavior. It is hard to think of a law passed in recent memory that would satisfy Hayek’s principle.

That is why political campaigns have become mere dialogues in the allocation of booty: “What are you going to do for me?” “Here’s what I am going to do for you.”

That is why, when George W. Bush entered the presidency, various groups demanded that he give them something. The Black Caucus, the women’s lobby, and who knows how many others wanted some demonstration that Mr. Bush was “sensitive” to their agendas.

That is testament to how dead the rule of law is in the United States. Under the rule of law, no group would make such demands. And no president would respond in any other manner than this:

I support freedom and the rule of law. Therefore, all individuals — no matter what groups they identify with — can look forward to one thing, and one thing only, from government: protection of their natural rights to life, liberty, and property. No one will have the property of another bestowed on him, and no one will have his property taken away. No one will find his peaceful activities restricted. No one will be forced against his will to do anything he wishes not to do. No one’s freedom of association will be violated. The only requirement is that individuals abstain from violating the rights of others through the use of physical force and fraud. Now go be happy and get rich.

Alas, that is not what we hear. Instead, we hear President Bush promise all the different caucuses that he will “listen” to them. Grab your wallet when you hear that. You are about to be fleeced.

As Roger Pilon of the Cato Institute wrote in the Wall Street Journal in January, the erosion of the rule of law did not begin with Bill Clinton; it merely accelerated to warp speed under him: “Mr. Clinton has undermined speech and privacy. He’s been indifferent to constitutional guarantees regarding warrants, jury trials, double jeopardy, and due process. And he has repeatedly resisted efforts to better protect property rights and economic liberties.”

But it was not just Clinton. When the New Jersey and Florida state legislatures realized that the tobacco companies had a perfectly good legal defense against state lawsuits seeking recovery of Medicaid expenses for smokers — namely, the smokers voluntarily assumed the risks — the legislatures simply changed the law to remove that defense. Cities, oblivious of the principle of agency — namely, that criminals, not those who manufacturer their tools, are responsible for crimes — have been suing gun makers to pay for the effects of violence. (They ignore, of course, that guns prevent more violence than they produce.) Luckily so far, judges have not been impressed. Will the legislatures weigh in yet again?

The Clinton-blessed pattern is palpable, as Pilon notes: “Vilify; bring massive suits, in many places at once, on bogus legal principles; then extort restrictions that Congress is unwilling to pass.” What a ferocious attack on the rule of law!

The clearest sign of the demise of the rule of law is the Constitution’s state of disrepair. Today the Constitution no longer limits the power of government. Rather it functions as a device to let the government define its own powers. A constitutional republic in which the government defines its own powers is, I submit, a contradiction in terms.

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    Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.