Hayek 11: Rule of law and rule of the lawless

August 18, 2008

A paper written by a friend and fellow columnist in www.thelobbyist.biz, former Cong. Neric Acosta, has an interesting title, "Rule of Law, Rule by Law". The two sets of words differed only in the use of "of" and "by" but that alone spells a difference equivalent to the difference in economic condition between a developed and free economy and an underdeveloped, dictatorial economy.

In the definitions given by Neric in his article, he wrote "Rule of law... constrains state power and government arbitrariness in its decision-making. Rule of law also means equality before law, which denotes procedural and formal justice… The rule of law does not therefore only serve to limit government's abuse of its powers, but also helps make its policies more rational or intelligent. No leader or government, as such, should be above the law."

Whereas "rule by law" is "When a government seeks to consolidate its hold on power or avoid accountability by manipulating institutions and using legal instruments to suppress dissent or harass opponents… When special interests circumvent the law or where the court system is weak and justice is for sale, rule of law is patently defied or ignored."

His paper was inspired by the World Justice Forum (WJF) that he attended in Austria. The WJF defines "rule of law" on four principles: (a) accountability of governments officials; (b) the laws are "clear, publicized, stable and fair"; (c) the process by which the laws are enacted, administered and enforced is "accessible, fair and efficient"; and (d) the laws are upheld and access to justice is provided by "competent, independent and ethical law enforcement officials".

I am a Friedrich Hayek fan and reader of his political philosophy, particularly his book, The Constitution of Liberty(1960, U. of Chicago Press). Hayek was an Austrian economist, who later became a political and legal philosopher. The subject of "rule of law" is comprehensively discussed in several chapters of that book, and I wrote two papers on Hayek's book and philosophy: "Hayek Reader 1: Liberty and Rule of Law", and "Hayek Reader 2: Liberty, Spontaneity and Easterly". Both are posted in the MG website.

Despite the deep political and legal discussions that Hayek devoted on subjects like "rule of law" and "liberty", one will appreciate him when he narrows and simplifies his definitions. For him, "rule of law" means no exception. The law applies to everyone – governors and governed, rulers and ruled, administrators and the administered – and exempts no one. For me, this is a very beautiful and very simple definition of "rule of law", and yet it is this simplicity of definition that often evades the understanding of the people who love to recite and repeat this phrase over and over.

I think the definition provided by the WJF on the four principles of "rule of law" looks winding and a bit convoluted. Well, this is from the perspective of a non-lawyer or non-government official. The Hayekian simple but strict definition of "no exemption" to rule of law implies that the number of laws in society should be as few and as transparent as possible. If there are 10,000 or more different laws (tax laws, budget laws, traffic laws, criminal laws, social security laws, labor laws, environmental laws, investment laws, trade laws, and so on, by local, national, or international government bodies and agencies) it will be impossible for law enforcers to understand, much less remember, all of them, see any contradiction between or among some of them – and if a contradiction in provisions does occur, to decipher which laws are "superior" to the others, etc. It should be even more difficult for ordinary citizens to comprehend even one percent of all those laws and regulations.

Needless to say, the proliferation of thousands of different laws, both old and new, would immediately result to a degeneration and later, non-implementation of the spirit of the rule of law. The "rule by law" discussed by Neric is a deliberate move, therefore, by those in government precisely to make a mockery of the rule of law. Since there are thousands of laws to remember and implement, making plenty of exemptions to those laws will be inevitable. Making exemptions to the coverage of the law, meaning unequal application of the law to already unequal people, would worsen any social inequity and result in the further trampling of individual rights and freedom of those who are in the bottom of the social pyramid.

Laws, by definition, are prohibitions – a system of NOs. Because there is no need to codify into laws things that are impossible to prohibit. Thus, there are no "air breathing laws" because breathing is a natural way for people to live and one cannot make any prohibition on breathing. But there are "air pollution laws", meaning there are prohibitions and restrictions in polluting the air. And when we say "traffic laws", these are certain prohibitions on the use of the road, like "no left turn", "no U-turn","no right turn on red light", "one-way street, no counter-flow", "no parking", "cars not allowed on days ____", and so on.

For many developing countries, mockery of the rule of law is more common. "Rule of men", of people making different rules that apply only to ordinary citizens – the governed, the ruled and the administered – but exempt the rulers, the governors, the administrators and their friends, is not unusual.

The "rule of the lawless" is very common in traffic rules. While ordinary motorists are being watched, even harassed and penalized for certain violations like "beating the red light", the rule makers and "law enforcers" in government are allowing themselves and their friends all sorts of exemptions: they can drive counter-flow on one-way streets, park in "no parking" lanes and streets, make left-turn on "no left turn", go straight even in red traffic lights, etc. Among the worst violators of traffic rules are traffic enforcers and government personnel themselves – police cars, vehicles with red plates (meaning government-owned vehicles), vehicles with single- or double-digit plate numbers (6 for Cabinet Secretaries, 7 for Senators, 8 for Congressmen/women, etc.). Private cars where the drivers or owners are high police or military or government officials are also among the lawless vehicles on the road. Also armored vehicles by private security firms.

The higher the political position, the higher the lawlessness being practiced. In traffic rules, the President of the country, his/her family members, and their security escorts, the Presidential Security Group, are the worst violators of traffic rules. For this group of people, there is no "rule of law". They can park their big vehicles even in the narrowest streets where "No parking" signs are staring in their faces. Name any traffic rule and they will violate it with full impunity.

Aside from lawlessness in traffic laws, the rulers and supposedly guardians of the rule of law are equally lawless in handling public funds, in making various prohibitions and in exempting as many friends and supporters, bribe givers and dispensers of various favor. The rulers make laws against "illegal gambling" and allow illegal gambling left and right, in exchange for bribes. The rulers make laws against prostitution and allow prostitution houses left and right in exchange for bribes. The rulers make laws against illegal drugs, against illegal mining, against air pollution, and so on, then allow all those they declared as illegal, in exchange for bribes.

In economic policies, the rulers make laws against free trade then allow trade smugglers left and right. The rulers make laws against piracy of intellectual property rights (IPR) then they turn around and enact laws or administrative regulations that legalize confiscation of IPR and patents. They make laws against corruption and large-scale robbery then they leave some trails pointing to acts of corruption, robbery and treachery. The list of lawlessness can be endless but the bottom line remains: more laws mean more lawlessness. Disrespect of the rule of law results in economic underdevelopment, or at least limits economic growth.

Societies will be better off if there are less laws. Many of the thousands of old and current laws can be abolished or consolidated among each other. We should have very few laws but these should be transparent – 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, and force the State to focus on its single most important function: to ensure the citizens' right to life, right to private property, right to liberty. Then, order and stability in society will not be far behind.