J
Jeffrey C. Dege
Guest
On Wed, 05 May 2004 04:17:45 GMT, R. Steve Walz <rstevew@armory.com> wrote:
rules that are determined in advance, or at the whim of the judge.
--
The Rule of Law was consciously evolved only during the liberal age
and is one if its greatest achievements, not only as a safeguard but as
the legal embodiment of freedom. As Immanuel Kant put it (and Voltaire
expressed it before him in very much the same terms), "Man is free if
he needs to obey no person but solely the laws." As a vague ideal it
has, however, existed at least since Roman times, and during the last
few centuries it as never been so seriously threatened as it is today.
The idea that there is no limit to the powers of the legislator is in
part a result of popular sovereignty and democratic government. It has
been strengthened by the belief that, so long as all actions of the state
are duly authorized by legislation, the Rule of Law will be preserved.
But this is completely to misconceive the meaning of the Rule of Law.
This rule has little to do with the question whether all action of
government are legal in the juridical sense. They may well be and yet
not conform to the Rule of Law. The fact that someone has full legal
authority to act in the way he does gives no answer to the question
whether the law gives him power to act arbitrarily of whether the law
prescribes unequivocally how he has to act. It may well be that Hitler
has obtained his unlimited powers in a strictly constitutional manner
and that whatever he does is therefore legal in the juridical sense.
But who would suggest for that reason that the Rule of Law still prevails
in Germany?
To say that in a planned society the Rule of Law cannot hold is,
therefore, not to say that the actions of the government will not be legal
or that such a society will necessarily be lawless. It means only that
the use of the government's coercive powers will no longer be limited and
determined by pre-established rules. The law can, and to make a central
direction of economic possible must, legalize to what all intents and
purposes remains arbitrary action. If the law says that such a board or
authority may do what it pleases, anything that board or authority does
is legal - but its actions are certainly not subject to the Rule of Law.
By giving the government unlimited powers, the most arbitrary rule can
be made legal; and in this way a democracy may set up the most complete
despotism imaginable.
- F. A. Hayek, "The Road to Serfdom"
The issue isn't who sets up the courts, but whether they operate under
rules that are determined in advance, or at the whim of the judge.
--
The Rule of Law was consciously evolved only during the liberal age
and is one if its greatest achievements, not only as a safeguard but as
the legal embodiment of freedom. As Immanuel Kant put it (and Voltaire
expressed it before him in very much the same terms), "Man is free if
he needs to obey no person but solely the laws." As a vague ideal it
has, however, existed at least since Roman times, and during the last
few centuries it as never been so seriously threatened as it is today.
The idea that there is no limit to the powers of the legislator is in
part a result of popular sovereignty and democratic government. It has
been strengthened by the belief that, so long as all actions of the state
are duly authorized by legislation, the Rule of Law will be preserved.
But this is completely to misconceive the meaning of the Rule of Law.
This rule has little to do with the question whether all action of
government are legal in the juridical sense. They may well be and yet
not conform to the Rule of Law. The fact that someone has full legal
authority to act in the way he does gives no answer to the question
whether the law gives him power to act arbitrarily of whether the law
prescribes unequivocally how he has to act. It may well be that Hitler
has obtained his unlimited powers in a strictly constitutional manner
and that whatever he does is therefore legal in the juridical sense.
But who would suggest for that reason that the Rule of Law still prevails
in Germany?
To say that in a planned society the Rule of Law cannot hold is,
therefore, not to say that the actions of the government will not be legal
or that such a society will necessarily be lawless. It means only that
the use of the government's coercive powers will no longer be limited and
determined by pre-established rules. The law can, and to make a central
direction of economic possible must, legalize to what all intents and
purposes remains arbitrary action. If the law says that such a board or
authority may do what it pleases, anything that board or authority does
is legal - but its actions are certainly not subject to the Rule of Law.
By giving the government unlimited powers, the most arbitrary rule can
be made legal; and in this way a democracy may set up the most complete
despotism imaginable.
- F. A. Hayek, "The Road to Serfdom"