Sometimes the reforming radicals are those
who also seek to conserve.

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:

Accountability:

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:

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.

I spoke last night in the European Union (Amendment) Act debate:

Steve Baker (Wycombe) (Con): First, I wish to associate myself with the remarks of my hon. Friend the Member for Harwich and North Essex (Mr Jenkin). Too often when addressing questions such as the one under discussion we get bogged down either in procedural matters or matters that verge on the nationalistic, but this evening he has transcended that old territory and talked about what is good for the UK and Europe in broader terms. I shall attempt to add to his remarks.

If we wish to say something about what is going on in Europe today, we must talk about the broader sweep of political economy, and I therefore also refer to the remarks of my hon. Friend the Member for Stone (Mr Cash). We must say something about the EU, and I say this:

“It is the last gasp of an outdated ideology, a philosophy that has no place in our new world of freedom, a world which demands that we fight this bureaucratic over-reach and lead Europe into the hope and potential of a new, post-bureaucratic age.”

That is how the BBC reported the remarks my right hon. Friend the Prime Minister made in Prague in November 2007, which, coincidentally, was the month when I joined the Conservative party and approached my right hon. Friend the Minister for Europe to discuss becoming a Member of Parliament.

Mr Lidington indicated assent .

Steve Baker: I see that my right hon. Friend remembers that, but I suspect he regrets giving me the reference.

Mr Lidington indicated dissent .

Steve Baker: I am most grateful for that.

We have talked about political economy, and great matters are at stake. It seems to me that there have always been two visions for Europe: a classical liberal vision and a vision of a so-called social Europe—an interventionist Europe. A classical liberal Europe would enable free movement of people, services and goods, all of which are to be applauded because we know that human flourishing depends on free trade and peace. The big question is: when did Europe become a social Europe, a socialist Europe and an interventionist Europe? Is it right that we put our faith in the omnipotence of government to solve all our problems and to deliver stability and prosperity?

With this measure, the European Union becomes explicitly a transfer union and is explicitly moving money and wealth around from one member state to another, and I suspect that Germany has very nearly had enough of it. We should not persuade ourselves that this is an entirely new phenomenon. I was most grateful to my hon. Friend the Member for Stone for giving me the opportunity to write in his European journal with a colleague and friend of mine, Professor Philipp Bagus, a German economist at a Spanish university. We explained how the European Union is inherently a monetary transfer union. By monetising their debts, profligate countries have been able to appropriate for themselves wealth from the productive nations such as Germany. This has been going on in a way that very few people understand for a very long time, and I believe that it has substantially contributed to the crisis that we are in. Having lived with this principle of redistribution by subtle means for a long time, we now seem to be explicitly adopting the notion of fiscal transfer union and direct economic governance.

Mr MacShane: May I invite the hon. Gentleman to read the Hansard record from 1984 when Mrs Thatcher brought back the rebate? My right hon. Friend the Member for Blackburn (Mr Straw) said that she had hauled down the Union Jack and hauled up the white flag of surrender to Brussels. She replied that that was quite wrong, that it was right that we should transfer, and right that we aid Portugal and the poorer members of the EU. At times, I feel like a Thatcherite.

Steve Baker: I am grateful to the right hon. Gentleman for that, but the question is not whether we should help our friends in Europe, but how we should do so. Everybody here is interested in securing the maximum of human flourishing right across Europe—I do not doubt that—but the question is how to do that. Should it be done through the omnipotence of the state or through free trade, free markets and peace?

I believe in stability and prosperity for Europe, but I do not believe for one moment that the European Union is capable of delivering it. I finish by reading a quote from a great French liberal statesman. He said:

“The state is that great fiction by which everyone seeks to live at the expense of everyone else.”

If this measure goes through, Europe will indeed have adopted that idea and it will have done so very much to its disadvantage.

I mentioned “the omnipotence of the state” by way of an oblique reference to Mises’ Omnipotent Government: The Rise of the Total State and Total War, which I recommend. It is available here.

This post originally appeared at The Cobden Centre.

In the course of things, I had cause to quote Bastiat, a French classical liberal theorist, political economist, and member of the French assembly: “The state is the great fiction by which everyone seeks to live at the expense of everyone else.” This prompted me to dig out the original essay.

As the UK’s national debt doubles and after a period within which QE was used, creating space in the market for that debt, one wonders how much longer we can go on like this before we are forced to rediscover the truths in this classic work.

I wish that someone would offer a prize, not of five hundred francs, but of a million, with crosses, crowns, and ribbons, to whoever would give a good, simple, and intelligible definition of this term: the state.

What an immense service he would render to society!

The state! What is it? Where is it? What does it do? What should it do?

All that we know about it is that it is a mysterious personage, and certainly the most solicited, the most tormented, the busiest, the most advised, the most blamed, the most invoked, and the most provoked in the world.

For, sir, I do not have the honor of knowing you, but I wager ten to one that for six months you have been making utopias; and if you have been making them, I wager ten to one that you place upon the state the responsibility of realizing them.

And you, madame, I am sure that you desire from the bottom of your heart to cure all the ills of mankind, and that you would be in no wise embarrassed if the state would only lend a hand.
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