The Chief’s Thoughts: The Rule of Law and Liberty
My day today was all about the law. As a legal researcher at the Free Market Foundation, I attended both the meeting of the Rule of Law Project Board of Advisors and the Rule of Law Project Working Committee. Both were around three hours long, and consecutive. This is partly why I don’t have a list of picks of the week today – I had significantly less time to write this column!
While most of the participants in the Project are classical liberals, liberty per se was not on the agenda. Instead, we concern ourselves with this often-elusive concept of ‘the rule of law’, which is certainly not often discussed among libertarians. So why are a bunch of classical liberals so concerned with the rule of law, when we should all theoretically agree that the law is the most grave violator of liberty?
The rule of law, simply, means that society is reasonably governed. I use ‘reasonably’ in its technical legal sense: Laws and government decisions must be rational (based on evidence, linked with a legitimate purpose), proportionate (not attempt to do more than is strictly necessary to achieve the purpose), and effective (the decision plausibly can achieve the goal). These read together also imply various other principles, such as certainty of law and unambiguousness. This is opposed to arbitrariness, or as it is known, the ‘rule of man’. The rule of law, in other words, is a doctrine consisting of tenets which permeate the law and the exercise of government power. It is not, as many think it is, ‘rule by law’, ‘rule of laws‘, or ‘a rule of law’. But more crucially, the rule of law is what enables libertarian society – even more so than the alternative right believes ‘culture’ does.
Many have looked on Donald Trump’s libertarian-inclined executive orders with approval. I know I certainly have. Requiring the gradual reduction of red tape and the elimination of regulations as new ones are introduced is excellent.
The problem, however, is that executive orders generally go against the rule of law. (I must stress here that even a constitution or a constitutional provision can violate the doctrine of the rule of law, so it would be pointless to quote the US Constitution at me, here). The executive branch of government is not supposed to have an agenda of its own. Instead, the executive is supposed to implement the laws passed by the legislature. The legislature – Congress – passes substantive law, and the executive may provide for their technical implementation. Whenever the executive creates a rule of substance, the rule of law is violated.
While Trump’s regulatory executive orders comply with this principle in general, they violate the requirement of certainty. Indeed, Trump has reversed Obama-era orders and Trump’s successor will reverse some of his orders, meaning that the American public which adapted their daily lives to accord with the orders, will be substantively and often detrimentally affected.
Few people recognize just how important the requirement of ‘certainty’ is, if we want a true libertarian society. Bruno Leoni went as far as to say that legislation itself is illegitimate, as it fundamentally violates the requirement of certainty. I would not go quite that far, however, there can be little argument on the fact that the doctrine of the rule of law per se is a very intense limit on government power.
The added benefit is that it is difficult to find anyone – socialist, communist, or statist – who disagrees with the rule of law. Most people, superficially at least, think the rule of law is a good thing. I believe it is worthwhile for libertarians to exploit this as an edge we already have over our opponents, in terms of marketing and activism. This recent video the FMF produced on the rule of law should go a long way to illustrate just how strict its tenets are: