Rule of Man or Rule of Law?

I think of myself as a nice guy. I have a spotless record, a clean-cut appearance, a nice family. I go to church. I went to college. I’ve even taught at FEE seminars for several years. Sometimes I think I’d be a good ruler, especially when I compare myself to the current crop of politicians. The rule of Rottman sounds pretty attractive right now.

But you shouldn’t want the rule of Rottman—especially if the alternative is the rule of law.

The rule of law sounds boring, but—along with its companion, property rights—it is the single most important factor in quality governance.

If you compare two geographically similar areas—say Florida and Haiti—and ask why the former is prosperous and peaceful, and the latter is not, the rule of law is the most important reason for the difference. The West triumphed relative to its competitors over the past thousand years not because of climate or ethnicity, but because of the evolution of all sorts of institutions (good rules) that fit under the rule of law.

Despite its importance, few educated adults, and fewer students, would list “the rule of law” as central to our prosperity. Perhaps they haven’t fully experienced the alternative—which one might call “the rule of man.” We only half-notice the order in which we live, without thinking about how it developed or what its alternatives are. We forget what Locke stated in England’s Glorious Revolution: “Where there is no law, there is no freedom.”

Locke's statement doesn’t mean that all laws makes us freer: We rightly intuit that Obamacare or NSA spying aren’t exactly expanding our freedom by leaps and bounds. The Lockean understanding of laws, and a pretty good litmus test of any proposed legislation today, is that laws must enlarge an individual’s freedom.

Laws do this best when they are:

• simple rules,
• evolved over time,
• agreed upon and known by all,
• rarely changed, and
• applied equally to all people.

An individual law may be silly, but if it fits the most of the above criteria, it likely is better to live under it that than to be ruled by a ruler, who is likely to be capricious and arbitrary.

Imagine a silly law that fits only some of the above criteria. Suppose that on every May Day, each citizen must wear a clown nose for one hour. Yes, it would be uncomfortable. And yes, this pointless expression of frivolity serves little purpose except to enrich the producers of clown noses; but think about it: It’s a simple rule. If we all know it, understand it, and perhaps we’ve done it for some time, and we all have to do it, it’s a relatively mild imposition of our personal freedom compared to arbitrary and capricious IRS investigations or even the beneficent rulings of a well-intended dictator.

And dictators are often well intentioned, pursuing the “public good” as they define it. In Rome’s first century, Emperor Claudius was fond of pronouncing edicts, issuing dozens of them per day, even declaring that public flatulence was good for one’s health. Diocletian’s price edict of A.D. 301 was equally well intentioned. The Roman Empire’s finances were crumbling. The prologue stated that “we must set a limit” to the greed that supposedly led to the price of a sextarius of Celtic beer to exceed four denarii. And if you charged five rather than four, the penalty was death.

As Rome’s grasp of the Mediterranean world grew, the rule of law deteriorated. In particular, executive power grew more domineering as problems multiplied. Rome transitioned from a republic incorporating the rule of law to a dysfunctional empire ruled by arbitrary dictators who, however well intentioned, didn’t have what Hayek called the “knowledge of time and place” to make their Byzantine systems work.

So, why do people support the “the rule of man”?

• Many of us have good memories of this rule in our own upbringing. Our parents loved us and had our best interests in mind.
• We also remember that father knew best. Dad (and Mom) knew what our abilities and needs were and ably cared for us. Therefore, we reason, our rulers know us as well, and may even know more than we do:  what energy sources are the best for our future, what knowledge children should have and what educational methods work, even which chemicals professional athletes should be allowed to use to enhance their performance.
• People also see altruism as good and surmise that coerced altruism brings about more good in the world. They are unaware of or cannot imagine private charities caring for the indigent, and feel guilty that in an affluent society, have-nots still abound.
• People assume that in a democracy, majorities won’t elect evil or incompetent rulers.
• People are impatient. Going through established procedures can be a roadblock to unconstrained visions of social justice or attempts to fix the unintended consequences of flawed legislation. We want results—now—rather than a long, drawn-out process.

The next time presidents or judges bypass the established political process and issue edicts advancing the general good, think about Claudius’s flatulence decree or Diocletian’s declaration that fatted geese may not sell for more than 200 denarii. Recall that our rule of law has Congress, not the executive or judiciary, make laws, and it may only legislate under the powers enumerated in Article I, Section 8 of the Constitution. Teach your children and remind your friends of how precious emergent order is.
 

It’s time to stop messing with the rule of law. Many of us are really nice, but our imposed visions of a fairer, greener, more prosperous, more—well, you fill in the blank—world are ultimately a rejection of the very process that produced a high degree of fairness, health, and prosperity in Western society.