(We) must do more than chase the vain illusion that someday a good and illuminated man will come to power. – ProReforma Campaign Brochure, Guatemala, 2009
I don’t know why this quote came to my mind this morning, but as I greeted Tax Day and started looking towards mid-term elections, 2016, and beyond, it seemed an apt reminder and warning. Good societies are built not on good people; they are built on good institutions.
The Rule of Law is arguably the most important institution and political tradition of Western Civilization. It allows us to hold each other accountable for our duties and commitments. It allows us to plan for our lives without surprise interference from our neighbors or a government official. It protects our lives and livelihoods from abuses of authority. It is an institution which enables progress towards equality in the only way that equality truly matters, in our dealings with a government which can and will use coercion to enforce its judgments. Like a referee on a sports field, judgments may be against an individual or on an individual’s behalf, but a rational expectation of consistent, rule-based treatment is a necessary condition of players in games and citizens in societies.
“Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law.” – F.A. Hayek, The Road to Serfdom (Chapter 6, “Planning and the Rule of Law”)
In short, if we know that government will enforce its judgments, the Rule of Law simply requires these judgments be made upon clear rules, known ahead of time, and applied equally to all persons.
Strictly understood it seems the Rule of Law has been weakened brick by brick for decades (as law has become more activist and ad hoc), and has been crumbling fast for the last few years (with undeclared wars, discretionary monetary policy, ever expanding bureaucratic authority, etc). Replacing a strong wall of rights and law which stood between the citizen and the potent enforcement powers of the state, we have been given instead regulations and entitlements based on good intentions and promises of positive outcomes. In my eyes, those are weak and perilous institutions to take as compensation for the loss of those imperfect but robust protections of consistently applied ex ante law.
And in fact, we then see these commitments so often unfulfilled, and the intentions revealed to be hollow. We thus lose even this replacement principle, the Rule of Promises, and more and more we are left with just that last bastion of power seekers, the Rule of Fear.
Give us more power or your food will be unsafe… give us more power or your bank will cheat you… give us more power or you children will be left uneducated… give us more power or “the rich” will exploit you… give us more power or the drug dealers will break into your homes… give us more power or “the terrorists” will get you…
Give us more power or else… or else… or else.
I would strongly claim, that the witness of history does not attest to a Rule of Fear leading to the good outcomes and best intentions for which we all hope. We all hope for more for ourselves and our descendants, but I see us acting out that hope by dreamily empowering elected politicians to protect us. When they fail, we blame it on inefficient government (“gridlock”) and then thoughtlessly empower unelected bureaucrats who can “cut through the red tape.” Instead of results, still we get only more promises, and when these promises fail again, more fear, followed by a doubling down on the same programs and agencies. Regardless that their most consistent attribute, demonstrably, is failure.
It constantly amazes me that defenders of the free market are expected to offer certainty and perfection while government has only to make promises and express good intentions. Many times, for instance, I’ve heard people say, “A free market in education is a bad idea because some child somewhere might fall through the cracks,” even though in today’s government schools, millions of children are falling through the cracks every day. – Lawrence Reed, Foundation for Economic Education
The institution of the Rule of Law, on the other hand, empowers the citizen. Empowers them with the amazing ability to have knowledge. To have information about what is allowed and what is not, thus to predict, and thus to plan, and thus to achieve means to the ends of bettering their lives and those of their children and community.
Arbitrary power however, destroys knowledge. It disallows the possibility of predicting what can and cannot be done. It undermines the planning ability necessary to better our lives. Instead of putting us in the hands of our hard work, ingenuity, opportunities of fortune and the limits of progress within the time we live, it subjects us to the whims of a ruling class, an elected and unelected elite which neither knows, nor much cares, about our individual needs, wants or dreams. Instead of pursing our own plan for our own happiness within our own means, we pursue the ends of, and by the means established within, another’s plans.
No other human knows you as you know yourself, and equally you know no other person as that other person knows themself. In whole, no other person has more knowledge as to their best interests or will pursue them more faithfully, than they themself. Consequently, requests for authority (generally a surrender of citizen freedom for a promise of government security) are made with maximum knowledge of how they will benefit the receiver, and once received, that authority will be used to further the receiver’s interests quite diligently.
If your political perspective requires government’s highest offices to be occupied by men and women who possess self-disinterest and intelligence of a super-human nature, I would suggest checking your expectations.
If you support candidates, parties and policies based on intentions (how pretty a picture they paint) with little regard for the power they ask for, or what they will actually do with that power once granted, I would take a second look before placing your vote or making your donation.
Importantly however, asking people to set aside the “illusion” of “a good and illuminated man“, is not a denial of “good and illuminated” people in our world, for there certainly are. Goodness and illumination exist throughout our communities, in private charities, commercial entrepreneurs, and many places. They are in fact, necessary for the judgments we ask of our officials in government. Instead, the argument and evidence ask people to deny that there exists in humankind, a goodness and illumination sufficient for unfettered power… or at the least, a power bounded only by some ill-defined group belief in their self-restraining goodness and illumination (my libertarian friends are laughing hysterically at that last part).
If the reality of this “good and illuminated man” is truly a “vain illusion“, a fantasy conjured from our hopes and dreams (encouraged by electioneering, pseudo-intellectuals, propagandists and even more nefarious types), then this license to power is truly unwarranted, unsupported, undeserved, and negligently granted.
In the final analysis then, denying the “good and illuminated man” is simply the acceptance of the Rule of Law. If no man or woman fulfills the requirements of unfettered power, then logically their power must be fettered. Further, those fetters may not be relative to the person (who transits), but fixed to the system (which remains).
The Rule of Law is not one code or a particular set of statutes. It is a standard by which to judge the very act of legislation, its executive enforcement and judicial interpretation. It looks at law and asks, “What does it say, plainly, for everyone to understand?” and then states, “That then is how it is to be enforced and interpreted.”
For instance, the government of our country was given form through ratification of the U.S. Constitution, a specific act of lawmaking, but the Rule of Law itself is something separate and pre-existing. It is a set of principles that is more fundamental than, which is controlling on, the specific system set forth in our founding documents. This standard must be on the hearts and minds of the citizenry. It must be understood, expected and respected, for without it the Constitution and all other written law are worth little or nothing.
But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. – Lysander Spooner, 1867
No country stands on the eloquence or intent of its written law, when its countrymen have lost the will to abide by law, or its government writes law the countrymen cannot abide.
If the government itself cannot abide by its own law (as we see with the ongoing debacle which is the arbitrary enforcement and implementation of the Affordable Care Act), how can men and women of the United States be expected to abide by it? As the written codes and regulation of our Federal and state governments expand exponentially, we lose ever more, every year, any hope or reasonable expectation of abiding by the laws of our own country. We move ever further from the Rule of Law, and are left only with the Rule of Man and of Fear. Fear of what unknown and unknowable rule we might break next, what arbitrary change might come down that will devastate our business, or savings, or community.
We enjoy freedom and the rule of law on which it depends, not because we deserve it, but because others before us put their lives on the line to defend it. – Thomas Sowell
Are we securing our freedoms in our hearts and with our lives, or are we relaxing comfortably in the illusion that our foundational principles are being safeguarded by the politicians we elect? Are we diligently defending the Rule of Law for our children and our grandchildren, or are we letting this precious institution fall to pieces around us? We may not be there when their judgment of our efforts finally comes, but I hope to live as to deserve their thanks as opposed to their condemnation.