On the Rule of Law

By Boudreaux, Donald J. | Freeman, April 2010 | Go to article overview

On the Rule of Law


Boudreaux, Donald J., Freeman


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 ieither 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 bv 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 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 their 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. …

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