F.A. Hayek on The Rule of Law

When I began this blog I thought I would happily prattle on about joys of cooking and food, offering, if you will, a light hearted unfolding guide to home cooking. Yet, in that time span, it seems our economy is on an accelerating path to disintegration. I cannot fiddle while Rome burns.

If we are to find the path back to sanity there are certain principles that we must vigilantly promote as a guide: the primacy of the household economy and the Roman Catholic principle of subsidiarity are two.

The priciple of subsidiarity holds:

"Socialization also presents dangers. Excessive intervention by the state can threaten personal freedom and initiative. The teaching of the Church has elaborated the principle of subsidiarity, according to which "a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to co- ordinate its activity with the activities of the rest of society, always with a view to the common good.""

There are others for sure. To this short list I must add “rule of law.” Collectively we have forgotten its meaning.

So here is F.A. Hayek’s take on it. This is excerpted from a longer essay outlining the origins and history of the concept. (Full Text)

“Here, I suggest, we have nearly all the elements which together produce the complex doctrine which the nineteenth century took for granted under the name of the Rule of Law. The main point is that, in the use of its coercive powers, the discretion of the authorities should be so strictly bound by laws laid down beforehand that the individual can foresee with fair certainty how these powers will be used in particular instances; and that the laws themselves are truly general and create no privileges for class or person because they are made in view of their long-run effects and therefore in necessary ignorance of who will be the particular individuals who will be benefited or harmed by them. That the law should be an instrument to be used by the individuals for their ends and not an instrument used upon the people by the legislators is the ultimate meaning of the Rule of Law.

Since this Rule of Law is a rule for the legislator, a rule about what the law ought to be, it can, of course, never be a rule of the positive law of any land. The legislator can never effectively limit his own powers. The rule is rather a meta-legal principle which can operate only through its action on public opinion. So long as it is generally believed in, it will keep legislation within the bounds of the Rule of Law. Once it ceases to be accepted or understood by public opinion, soon the law itself will be in conflict with the Rule of Law.”

I need to repeat “the main point is that, in the use of its coercive powers, the discretion of the authorities should be so strictly bound by laws laid down beforehand that the individual can foresee with fair certainty how these powers will be used in particular instances…”

If this principle were applied to our federal administrative agencies much of the Federal Register would need be stricken. In July alone the federal government unleashed 379 new rules, with estimated new regulatory costs of over $9.5 billion.