In the absence of the rule of law, individual liberty in the sense that I defined in my column, On Liberty, posted on December 29, 2009, is fragile indeed. So, in another diversion from economics, this time into jurisprudence, this column offers some insights into the nature of the rule of law – once again a concept that is not always fully understood even in countries that are committed to some form of democracy. and which, whether or not understood, is never practised in countries that are characterized by any form of autocracy:
“The end of the law is, not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others; which cannot be where there is no law; and it is not, as we are told, a liberty for every man to do what he lists. ” John Locke, Second Treatise of Government, sec. 57.
“The conception of freedom under the law…rests on the contention that when we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free. It is because the lawgiver does not know the particular cases to which his rules apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule.” Friedrich von Hayek, The Constitution of Liberty 1960, 153.
“The rule of law requires that all laws should conform to a set of principles and, in essence, that legislation should satisfy the central precepts of the common law. First, laws must always be prospective and never retrospective in their effect, since their intention is to influence future choices. Second, laws must be known and certain, to the extent attainable, so that individuals are in a position accurately to predict the decisions of the courts. Third, laws must apply with equal force to all individuals, including those who govern, without exception or discrimination. It is this requirement in particular that will lower the probability that coercive measures will be legislated.” Charles K. Rowley, ‘Liberalism and Collective Choice: A Return to Reality?’ Manchester School 1978, 246.
Since I intend to illustrate, from time to time, instances where the ‘great democracies’ and the ‘great autocracies’ stray from the rule of law, as they all do, I feel that readers are entitled to review my definition of the concept.