Tuesday, June 15, 2010

Rule of Law 8: Purpose and Supremacy of the Law

In one of my discussion yahoogroups, there is a discussion about "midnight appointment" by the outgoing President of the Philippines whose term will end this coming June 30, 2010. I did not join their debate on "midnight appointment" as I feel it is a debate of who should fill up vacancies in certain bureaucracies of the BIG government, the outgoing or the incoming administration. Being a non-believer of big and bloated government, I think that about half of the current bureaucracy are abolishable and we ordinary taxpayers, especially those in the private sector, will be better off with less taxes and fees to pay, with less signatures and permits required by bureaucrats before we want to start a business, for instance.

There was one idea thrown in during the discussion. That "the law exists to arbitrate where different positions cannot be reconciled per se. Where the law is silent, neither position can claim to be self-evidently superior..."

I am not too keen to accept this definition, that the purpose of the law is to arbitrate. From what I observe and read, the purpose of the law is to prohibit, to make restrictions.

When we say there is a law on something, that means -- explicitly or implicitly -- there is prohibiton on something. When there is no law on something, that means there is no prohibition on something.

Take breathing. Is there a law on breathing? Any regulation, republic act, decree, executive order, administrative order, local government order, on breathing? No. No law on breathing means no restrictions, no prohibitions, on breathing.

Take pollution. Is there a law on pollution (air, land, water)? Yes, hundreds of them, from local government to administrative orders to laws and decrees enacted by congress/parliament or the President. This means there are prohibitions and restrictions on pollution.

That is why the "rule of law" simply means the "rule of prohibitions". Laws against killing, against stealing, against kidnapping, against rape, against extortion, against stabbing and whacking people's head, against pollution, against smuggling, etc.

And the rule of law means rule of law, not rule of men. No one is exempted from the law, and no one can grant exemption from the law. The law applies equally to unequal people. Whether the theft is the President or the poorest man in this country, both should be penalized for stealing. Whether the murderer is the chief of police or the most hardened criminal or the most holy religious leader of the planet, the law against murder rules. It applies equally to unequal people.

And this makes ALL leaders of the country, past and present, hypocrites about the rule of law. Just observe ordinary traffic laws. The most notorious, the most arrogant violators of traffic laws are government people -- drivers of police cars, other red plate cars, and the king of them all, the Presidential Security Group (PSG).

Laws against stealing and plunder. Laws against illegal gambling and prohibited drugs. The fact that there are such laws and prohibitions and those things and activities continue up to this day, just shows how hypocritical the leaders of the country are in disrespecting and not promulgating the "rule of law."

Essence of the Rule of Law

Life will be simpler if there is simply a real "rule of law" as in "no exception", not even the governors and administrators of laws can grant exemption to anyone, even to themselves and their families.

Law = prohibition.

rule of law = rule of prohibition.

Since these are prohibitions, the number of laws should be as few as possible if society is to remain free and non-intrusive and less-interventionist. So maybe only 5 general laws all in all:

1. No killing or attempting to kill
2. No robbery or attempt to steal
3. No stabbing/shooting/poisoning/kidnapping or any attempt to harm other people
4. No censorship, no control of right to self-expression
5. 1 or 2 more.

Drinking, smoking, gambling, drugs, sex, speculative trading, entrepreneurship, job creation, international trade, etc. all allowed, zero or minimal restriction
but shooting other people after one got drunk (or even if the shooter is sober) is not allowed.

The number of prohibitions is very small, everyone will remember them, and everyone knows the consequences for violating those very few general laws or prohibitions.
This is the kind of "discipline" that people expect: the predictability of action and penalties when one violates those very few laws.

Too many laws mean lots of leeway and arbitrary powers to the law enforcers and administrators which law will apply to whom and which ones will exempt some people. This is very evident in our traffic "laws". Too many no left turn, no u-turn, one way no counterflow, no right turn on red, etc in our roads, the police and government vehicles, civilian cars but the drivers are politically connected, violate each and all those traffic "laws" with impunity.

Last February 07, 2010, I wrote this:

Rule of Law and Supremacy of the Law

There is a brief discussion in my other discussion group, about democracy. Democracy is a popular concept and most politicians and political groups around the world say they are democrats, very often with an adjective before it -- like social democrat, liberal democrat, christian democrat, and so on.

A friend from India, Barun Mitra of Liberty Institute, made a good presentation about democracy and property during the "3rd Pacific Rim Policy Exchange" held in Singapore last Oct 14-15, 2009. Entitled "The politics of property", it’s available at: http://www.minimalgovernment.net/media/barunmitra20091014.pdf.

It's 27 slides (powerpoint), lots of philosophical discussion about democracy. I like one of Barun's arguments: Democracy is not majority rule because the smallest minority is the individual.

A friend from Georgia (Europe, not US) opened up a new topic, “Rule of Law is not the same as Supremacy of Law.”

While I am familiar with the definition and discussion of the “rule of law”, I am not familiar with the latter. The former, at least in the Hayekian definition, is very clear. The law is above everyone. No one is exempted from the law, no one can grant exemption, and the law applies equally to unequal people.

A quick search of the “supremacy” shows that the latter means that in case of a conflict between a local or community law with a national law and/or a federal or union law (say in the US or the EU), one has the supremacy over the other.

Another source made this definition,

"The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law." (http://www.ourcivilisation.com/cooray/btof/chap181.htm)

I don't remember Hayek discussing or mentioning the topic, "supremacy of law", at least in his book, "The Constitution of Liberty" (1960). Hayek's definition of the "rule of law" covers both -- application of the law to everyone and such laws are abstract and of general application to all.

Another thing, Hayek did not consider all laws emanating from the parliament or legislature as real "laws" in the sense of being abstract, genral laws. For him, only general laws that mention no individual, no institution, no group or sector, can be considered as real "laws".

Thus, we can consider the "law against killing" as a general law. Also, the "law against stealing". These laws make no mention of any individual or institution or group, nor make any exemption. Whether the killer or theft is a king or president or prime minister or the poorest of the poor, killing and stealing is prohibited, period. No ifs, no buts, no however.

In contrast, laws on financial bail-out, agricultural subsidies, trade subsidies, health/housing/education subsidies, tax holidays, etc. are not abstract, general laws. Such "laws" contain too many details. When there are too many details, there are many potential loopholes and exemptions.

From Hayek's definition and discussions, therefore, we can infer that "rule of law" is similar to "supremacy of the law".

Adding here2 of my earlier notes on the subject.

1. Rule of Law and Property Rights

September 11, 2008

Rule of law is among the most misunderstood and most abused political philosophies in the world today, particularly in this country. When the President for instance was fighting for her political survival -- with more and more street protests and demonstrations and the crowds getting bigger and bigger, during the "Hello Garci" impeachment moves and the ZTE-NBN scandal, the President and her coterie of top bureaucrats were one in calling for a "rule of law" and not to allow "mob rule." Of course these officials and bureaucrats do not appreciate or fully understand that the term implies "the law (against election cheating, robbery, plunder, etc.) applies to everyone and exempts no one." What they understand and fully implement is the "rule of the administration," meaning the Administration is above everyone else, and they are the Administrators.

In my last month's column entitled "Rule of law and rule of the lawless", I argued that "Societies will be better off if there are less laws. We should have very few laws that apply equally to everyone and exempts no one. This 'rule of law' will discipline people, both governors and governed, both rich and poor."

Property rights is another widely misunderstood concept. Using high poverty and social inequality as alibi, there have been a number of moves and policies to make "private property rights" become "public (or collective) property rights." In this case, the owner of a particular private property, whether physical or intellectual property, will be disfranchised and robbed of ownership of such property. The State, or other political organs or private enterprises authorized by the State, can confiscate private property.

Lack of security, if not outright absence, of private property rights, therefore, is a formula for social chaos. People will have no peace of mind if their car or TV or song composition can be claimed by other people as their own car or TV or song composition too. And if people cannot have security of private property ownership, they will not work hard; they will not become ambitious and efficient in their work. Rather, they will be driven by envy -- pure, dark, evil envy. When someone improves his life due to hard work and has certain material things, other people around will conspire or compete with each other on how to steal or confiscate such properties for their own selfish and envious interests. In this case, society will stagnate and decay. And that largely explains why socialism can never be attractive to hardworking and responsible people.

2. Child Murder and the Rule of Law

July 01, 2009

There is an overseas Filipino worker (OFW) named May Vecina, who has been spared from death row in Kuwait for killing a 7-year old child of her employer, also attempting to kill two other children.

VP Noli de Castro, DFA Secretary Alberto Romulo, and Ambassador Endaya fetted her, shown on media smiling, flashing a peace sign, given cash assistance and a loan to start a business. Is this the way to treat a self-confessed murderer?

While it is possible that she indeed was maltreated by her employers, killing a child is not the right way to "get even". And the RP government officials who saved her from being killed in Kuwait should have kept a low-profile action on it. But since she was helped by high-profile officials with high media value and seeking high political mileage, the uneventful thing happened.

One major reason why societies are in disarray is because the leaders of societies -- the top government officials -- do not fully promulgate the rule of law. The rule of law says no one is above the law, the love is above everything else and no one else. So when the law says killing (and stealing, kidnapping, etc.) is bad, it is punishable, and some government leaders begged for exemption to the law, then there is disrespect of the rule of law there. Granting that the parents of the child and the government of the victimized citizens have granted her pardon for humanitarian purposes, still the murderer should be demonized as a killer. Because she killed a child, not a rapist or hold-upper who was on the act of assaulting her.

I would assume that the same high level politician and government officials -- VP Noli, Sec. Romulo, Amb. Endaya, etc. -- are among the top government officials who disrespect traffic rules in this country who drive with low-number and/or diplomatic cars and with police escorts on big bikes who think that a red light is also a green light, that a one-way street is also a two-way street, that a no left turn or no U-turn street is also a left turn or U-turn street.

The lawlessness in our streets by the supposed law enforcers in government is just one indicator of the weak promulgation of the rule of law in this country. And so we may have a warped sense of justice and morality, even in the case of that child murderer.

See also:
Rule of Law 1: Entrepreneurship and Government Permits, September 16, 2008
Rule of Law 2: Property Rights and Lefts, March 02, 2009
Rule of Law 3: AIG Bonuses, Government Bail-outs, March 18, 2009
Rule of Law 4: On Thailand Crackdown, April 18, 2009
Rule of Law 5: Lawless State, Corruption and Coercion, August 01, 2009
Rule of Law 6: Discussions in Facebook, January 10, 2010
Rule of Law 7: Property Rights and IPRI 2009 Report, February 27, 2010

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