PRINCIPLES FOR A FREE SOCIETY THE RULE OF LAW

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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