Tuesday, May 19, 2009

Hayek 7: Rule of law means no exception

October 15, 2007

Friedrich Hayek’s Chapter 10, “Law, Commands and Order”, in The Constitution of Liberty

Chapter’s opening quote:

“A sphere belonging to each individual is determined, not by the demarcation of a concrete boundary, but by the observation of a rule – a rule that is not known as such by the individual but that is honored in action.”

One of the key concepts when people discuss individual liberty, political democracy and economic freedom, is law. And too often, law is regarded as anything that comes out of the legislative mill, anything that is crafted by the law-creating body in specific milieu of a given society. Some laws complement, some contradict, previous laws. And some laws are created or enacted even if there are no accompanying mechanisms like budgetary appropriation (often called “unfunded laws”). Nonetheless, they are all called “laws”. Hayek says this is wrong. For him,

“Law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time…. “By ‘law’ we mean the general rules that apply equally to everybody… As a true law should not name any particulars, so it should especially not single out any specific persons or group of persons.”

This is a very straightforward and clear definition of “law” – that it applies equally to everybody, no particulars or group of persons ever targeted or mentioned. Thus, the law/s against killing any person and stealing any private property is true “law” in the Hayekian sense. While laws on income tax where people who work for foreign governments and multilateral or foreign institutions are exempted from paying income tax, is not. So that what we normally refer to as “laws”, are actually “commands”. According to Hayek,

“Difference between laws and commands… command determines uniquely the action to be performed and leaves those to whom it is addressed no chance to use their own knowledge or follow their own predilections. Law, on the other hand, provides merely additional information to be taken into account in the decision of the actor.”

One wonders sometimes and asks this question, “What do you call those thousands of rules we have, from traffic rules to laws enacted in the village, county, municipal, city, provincial, state, federal, national, international, levels?” The answer is that majority of them are commands, not laws. Because they specify the things that people should do, or not do, as well as the corresponding fines and penalties to be applied when caught violating those commands. In addition, by virtue of the strict “laws = no exception” rule, it follows that laws should be few, not numbering thousands, because it will be impossible for the “law enforcers” not only to remember all those thousands of laws, but also not to grant exceptions to some violators who also are not aware of the thousands of laws in existence, or willingly violate certain rules because they know that “law enforcers” are busy remembering and enforcing the laws elsewhere. Hayek added,

“When we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free… Because the rule is laid down in ignorance of the particular case and no man’s will decides the coercion use to enforce it, the law is not arbitrary.

“Even general, abstract rules, equally applicable to all, may possibly constitute restrictions on liberty. But this is unlikely. The chief safeguard is that the rules must apply to those who lay them down and those who apply—that is, to the government as well as the governed – and that nobody has the power to grant exceptions.”

This, I guess, is the heart and soul of the rule of law – the law applies to the government and the governed, no one is exempted and no one has the power to grant exceptions. The abstractness and all-encompassing applicability of these general rules assures their liberating aspect, their capacity to protect the freedom of everyone that respects those rules, and their capacity to punish everyone that disobeys those rules. This is possible only because, as explained by Hayek, the laws were designed with no particular case, no particular time, and no particular group of persons, are targeted to be the object of restrictions. Any exception to the rules immediately become “rule of men”, by people who exempt themselves or “higher ups” from the law, and not rule of law.

Those hundreds of traffic rules, for instance, that say “no left turn”, “no U-turn”, “no counter-flow”, “no parking”, and so on, when the traffic enforcers perfectly know that there are people who will be exempted – from top politicians, top police and military officials, other economic and political leaders of society – are commands, not laws. Those traffic rules are not expected to be followed by everyone. Traffic congestion is a social and engineering problem which has social and engineering solutions. For instance, if building a U-turn slot on an existing road is dangerous for motorists, an elevated U-turn road is one solution. If allowing left-turn on a busy intersection will cause more traffic and more risks to crossing pedestrians, an elevated or underpass left-turn slot is one solution. If allowing parking on the shoulder of a road will still cause traffic, then facilitating and encouraging the construction (especially by private entities) of a sprawling or multi-level parking building nearby is one solution. The point is to build infrastructures that will create the minimum, if not zero, prohibitions and restrictions in traffic flow, so that no one, especially those in government, will be tempted to break and violate those prohibitions.

On the Legislature or Parliament, Hayek’s words on this are the following:

“The ‘law’ that is a specific command, an order that is called a ‘law’ merely because it emanates from the legislative body, is the chief instrument of oppression. The confusion of these two conceptions of law (general rules vs. legislative law) and the loss of the belief that laws can rule, that men in laying down and enforcing laws in the former sense are not enforcing their will, are among the chief causes of the decline of liberty.

I find this statement controversial because Hayek called Legislative command as the “chief instrument of oppression.” I have always thought that the chief instrument of oppression are rules made by dictators, by gangs and political parties that rose to power and retain such power by armed means, who make no hesitation in arresting or killing those who want to disobey their rules. Maybe Hayek was referring here to a Legislature or Parliament that derive its mandate not from popular vote, but from appointment by dictators and/or armed gangs and political parties.

But like the above discussion on hundreds of traffic rules, even a Legislature that derives its mandate from popular vote or direct vote by the citizens, can indeed be a “chief instrument of oppression.” When such legislature creates thousands of laws after many years and generations of Legislators or Parliamentarians through the years, then the citizens will find themselves swamped with thousands of commands – whether as new restrictions or new subsidies and entitlements to certain groups of people -- that also require plenty of taxes, charges and fees so that those laws will be funded and implemented. Because the “rule of law” requires that the laws should be as few as possible, so that they can be easily appreciated, understood and respected, by all, from private citizens to government “law enforcers”.

This interpretation is supported by Hayek’s succeeding statements. He wrote,

“If ‘to rule’ means to make men obey another’s will, government has no such power to rule in a free society. The citizen as citizen cannot be ruled in this sense… He can be ruled, however, in the sense in which “to rule” means the enforcement of general rules, laid down irrespective of the particular case and equally applicable to all. For here no human decision will be required in the great majority of cases to which the rules apply; and even when a court has to determine how the general rules may be applied to a particular case, it is the implications of the whole system of accepted rules that decide, not the will of the court.”

This statement by Hayek has serious implication: that government can make “rules” that will make people subservient to someone else, only in unfree society. And since laws – whether enacted by popularly-elected or dictators-appointed legislators -- tend to be more of commands, not general rules, then it is imperative that any government, if it is serious in maximizing the freedom of the citizens, must make as few laws as possible. Aside from its philosophical and moral virtue, less laws (and less legislators) also has fiscal and financial wisdom in the face of “pork barrel” practices by many legislatures around the world.

In discussing commands and laws, Hayek has touched on what could be the essence of the “role of government” in society. He wrote,

“The main features of all somewhat more advanced legal orders are similar to appear as mere elaborations of what David Hume called the ‘three fundamental laws of nature, that of the stability of possession, of transference by consent, and of the performance of promises.’

Hume here is referring to (a) right to private property, (b) right to exchange or dispose such property, and (c) respect of contract. Many classical liberal thinkers also wrote along this line. And Hayek said that the legal infrastructure of more modern societies are derived from these “fundamental laws of nature”. We can extend the logic to say that a government’s right to exist is justified only if it can assure the citizens of their 3 fundamental rights. Plus the government’s duty to protect the citizen’s right to life from aggressors.

Hayek also wrote something similar to Adam Smith’s “invisible hand”. When people pursue their self-interest for self-preservation, if not to become rich and affluent, so long as they do not harm other people, they are guided by an “invisible hand” to produce goods and services that are needed by other people, so that human welfare is spontaneously assured and expanded. He wrote,

“One of the achievements of economic theory has been to explain how such a mutual adjustment of the spontaneous activities of individuals is brought about by the market, provided that there is a known delimitation of the sphere of control of each individual.”

And finally, Hayek believed that humanity is capable of “spontaneous order in society” even without the guiding hand of the state. This is similar to the above discussion. Here he quoted M. Polanyi:

“M. Polanyi has called the spontaneous formation of a ‘polycentric order: When order is achieved among human beings by allowing them to interact with each other on their own initiative – subject only to the laws which uniformly apply to all of them – we have a system of spontaneous order in society… The actions of such individuals are said to be free, for they are not determined by any specific command, whether of a superior or a public authority; the compulsion to which they are subject is impersonal and general. (M. Polanyi, The Logic of Liberty (London 1951, p. 159)”

It is indeed very ironic that humanity around the world has been guided – or misguided -- to believe that spontaneous order among people is impossible. That we need governments, local, national, and supra-national, to ensure social order. Farther from the truth. More often than not, governments are the chief cause of complaint and discontent by citizens around the world from many countries. The breakdown of the rule of law and subsequent dominance of commands, the failure of having few but general rules that apply to everyone, and the exemptions of many of those who are in government from the various commands that they themselves have enacted and implemented, are the chief causes of citizen discontent, the chief instruments of citizen oppression.

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