Please note: this post was written at my request by Michael Dowsett, after yet another European policy which breached the Rule of Law, as classically understood. – Steve
The rule of law is a phrase which is widely used but perhaps little understood. Far from being merely the sum total of all the laws passed by a particular central or local administration plus courts to enforce them, the term ‘the rule of law’ draws on a higher concept of laws and practices which promote equality before the law, general and abstract rules for citizens and an independent judiciary.
So, where did the rule of law originate? What does it mean? And why is it relevant to the conduct of politics today?
‘An unjust law is no law’:
The principle was first seen in Ancient Rome and Ancient Greece that the laws under which citizens live should evolve gradually over time and not merely be decreed by sources of arbitrary power. For this reason, greater trust was put in the hands of the judiciary to develop law, through a process called common law: law developed through ‘case and precedent’ established through various cases. This approach was formed from a number of principles:
All are able to be equally held to account under the law, regardless of power status within the particular jurisdiction. As such, rulers are as liable to be held to account as ‘the ruled.’
Natural justice implies that all laws are predictable so that an individual can be sure how they will be treated under the law, should they proceed with a particular action. In conjunction with this, the law should be clear and stable. It should also avoid retroactivity; that is judgement on the basis of laws which were only passed after the act in question was committed. As Bastiat states in The Law, the law of the land should be ‘negative,’ and not perpetuate injustice through retroactivity; or indeed the confiscation of liberty or property through regulation or redistribution of wealth.
The rule of law in practice
The application of the rule of law is multifaceted, and ranges from an independent judiciary to the conduct of economic policy. However, the core principle advocates of the rule of law would embrace is the assertion that its principles are incompatible with a planned society. As Hayek said in The Constitution of Liberty, although a person in a planned society “…is not fundamentally deprived of the use of his capacities; he is deprived of the possibility of using his knowledge for his own aims.” Fundamentally, the rule of law and a free society go hand in hand.
Defenders of the rule of law also advocate the adoption of written constitutions, such as the United States Constitution, to formally codify the duties and restrictions on the power of particular parts of government. In the absence of such formal written constitutions, a gradual creep towards an arbitrary use of power can occur, thus undermining the rule of law. The threat of such a development is only increased by the greater power now enjoyed by supra-national organisations, such as the European Union. The lack of democratic legitimacy and accountability the EU has helps to explain why it consistently seeks to acquire new competencies and powers through ‘ratchet clauses’ and similar mechanisms, which undermine the principles of predictability and generality at the heart of natural justice.
In conclusion, the rule of law is crucial to the functioning of a free and prosperous society. It is as relevant today as when the principles at its heart were developed in Ancient Greece and Rome. Governments should be vigilant that their actions and approaches to policy do not undermine the principles of ‘natural justice’ and should avoid the temptation to wield arbitrary power in the pursuit of political gain.
You can read more on these fundamental principles by downloading: Principles for a Free Society by Dr. Nigel Ashford.