On the 'Rule of Law'

By Per Bylund.
Exclusive to STR
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 civilized 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 behavior 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 behavior, 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 realize 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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Per Bylund's picture
Columns on STR: 63

Has a passion for justice.


Paul's picture

What you call "true law" are the rules people need to interact fruitfully with each other, and are thus severely limited in number, because there are few that people can both remember and reasonably agree on.

On the other hand, the function of "legislated law" is to turn men into sheep. These laws are naturally almost innumerable.

Too bad there are not better, more distinct terms for these two things. They are easily confused.

Maybe there is a reason for that. Those who create "legislated law" crave the respectability that is enjoyed by "true law". When people say, "The Law must be obeyed," they are thinking things like "Thou shalt not murder," rather than, "All lawns must be kept mowed to a height less than 5 inches."

Steve's picture

So 1.6-gallon low-flush toilets would fall into which category?

GeoffreyTransom's picture

There are two things that amaze me - the first is the tendency of whipkissers (those who would have worn red coats during the Revolutionary War) to come over all pro-revolution on July 4th; especially if the State Death Machine has one of its 'heroes' fly a jet-powered baby-killer over the arena.

The second is the tendency of the same sorts of people to blather about the sanctity of 'the law' and so forth, despite the fact that they, like everybody, choose which bits of 'the law' they are prepared to follow.

As the 'war on drugs' shows, the political-parasite class can legislate until they turn blue - they can't make a law stick if it is divergently at odds with what a large swathe of people want to do. (And no, a large swathe of people don't want to kill, rape or commit fraud).



Suverans2's picture

"The answer is simple: Law is not made, it is discovered." ~ Per Bylund

Now that is a "strike the root" statement!! That law is called the natural law (of man).

"Law derives from our right to defend ourselves and our property, not from the power of the state. If law was merely whatever the state decreed, then the concepts of the rule of law and of legitimacy could not have the meaning that they plainly do have, the idea of actions being lawful and unlawful would not have the emotional significance that it does have." ~ Jame A. Donald

Read more here: http://jim.com/rights.html

Here: http://lysanderspooner.org/node/59

And here: http://bastiat.org/en/the_law.html

Knowledge makes a man unfit to be a slave.” ~ Frederick Douglass

Suverans2's picture

Natural law. ...a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems peculiar to any one people, might be discovered by the rational intelligence of man, and would be found to grow out of and conform to his nature, meaning by that word his whole mental, moral and physical constitution. ~ Black's Law Dictionary, Sixth Edition (c.1991), page 1026

Suverans2's picture

"A ruler that violates natural law is illegitimate. He has no right to be obeyed, his commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals, and should be dealt with in accordance with natural law, as applied in a state of nature, in other words they and their servants should be..." ~ James A. Donald http://jim.com/rights.html

B.R. Merrick's picture

James A. Donald says, "A ruler that violates natural law is illegitimate." But what is a ruler? If the initiation of coercion is death, as I postulate, then how does one become a ruler by any other means than the voluntary consent of another individual to be ruled, without becoming an "illegitimate," death-oriented ruler? A ruler in any other way loses his "legitimacy" the minute that he claims lordship over any portion of another individual's property without that individual's consent. Does not this aspect of every ruler that has ever lived make all rule illegitimate?

And I am not speaking here of "natural law," a concept of which Suverans2 is perhaps slowly convincing me. There is no "natural law" stating that there must be a ruler. So how else does any "legitimate" ruler rule?

Suverans2's picture

Thank you for your thoughtful reply, B.R. Merrick.

Firstly, you were right to ask, “...what is a ruler?”, because, according to good old Noah Webster (c.1828), there are two possible answers to that question.

RU'LER, n.
1. One that governs, whether emperor, king, pope or governor; any one that exercises supreme power over others.
2. One that makes or executes laws in a limited or free government. Thus legislators and magistrates are called rulers.

In order to answer your last question, “...how...does any “legitimate” ruler rule?” we will have to use this part of the second definition, “One that...executes laws in a...free government”; in this case, the natural law (of man). Execute, in this scenario, and according to the same source, means, “to carry into effect”.

A “legitimate” ruler would “carry into effect” the natural law (of man). “Leader”, in my opinion, would have been a far better choice of words than “ruler”.

Suverans2's picture

I am but the messenger, what is convincing you is the pure logic of the evidence presented. Lysander was right, the natural law (of man) is a science[1].



[1] SCIENCE, n. ...In philosophy, a collection of the general principles or leading truths relating to any subject. Pure science...is built on self-evident truths; but the term science is also applied to other subjects founded on generally acknowledged truths...or on experiment and observation... ~ Webster's 1828 American Dictionary of the English Language

Mark Davis's picture

This is a subject of great interest to me. Great article and comments. Hasnas wrote a great paper on the Myth of the Rule of Law that may interest some: