Rule of Law, and Supremacy of the Law

Roscoe Pound, in the preface to his “An Introduction to the Philosophy of Law,” notes that this subject cannot be tackled with ease by either a philosopher or a jurist, and that one needs to have mastery over both philosophy as well as law. If a pure philosopher attempts the task, he would have to rely on the work of jurists and the outcome would be clouded by the philosophical biases of those jurists. If a lawyer attempts the same, the “results of common-law incursions into philosophy would resemble the effort of the editorial writer who wrote upon Chinese metaphysics after reading in the Encyclopedia Britannica under China and metaphysics and combining his information.” I don’t know where Leoni stands when it comes to this criteria, but given his insistence on “negative liberty,” his stand on “free markets” and his knowledge of law—theory and history, I don’t think he disappoints.

The last two posts on this subject covered chapters one and two of his book. This post is on chapter three – “Freedom and the Rule of Law.”

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“It is not easy to state what English-speaking people mean by the expression ‘the rule of law’,” Leoni writes, and then says that the meaning of the term is subject to semantic confusion in the same manner as the term “freedom.” He then considers legal scholar Dicey’s analysis of the “rule of law” and notes than “supremacy of the law” is its chief characteristic.

[Dicey] quoted the old law of the English courts: … (“the law is the highest estate to which the king succeeds, for both he and all his subjects are ruled by it, and without it there would be neither king nor realm”). According to Dicey, the supremacy of the law was, in its turn, a principle that corresponded to three other concepts and therefore implied three different and concomitant meanings of the phrase “the rule of law”: (1) the absence of arbitrary power on the part of the government to punish citizens or to commit acts against life or property; (2) the subjection of every man, whatever his rank or condition, to the ordinary law of the realm and to the jurisdiction of the ordinary tribunals; and (3) a predominance of the legal spirit in English institutions, because of which, as Dicey explains, “the general principles of the English constitution (as, for example, the right to personal liberty or the right to public assembly) are the result of judicial decisions …. ; whereas under many foreign constitutions the security given to the rights of individuals results or appears to result from the general (abstract) principles of the constitution.”

He then compares this with Hayek’s theory of what “rule of law” is-

According to Professor Hayek, the generality, the equality, and the certainty of the law, as well as the fact that administrative discretion in coercive action, i.e., in interfering with the person and the property of the private citizen, must always be subject to review by independent courts, are “really the crux of the matter, the decisive point on which it depends whether the Rule of Law prevails or not.”

Leoni says Hayek’s features and those of Dicey are in broad agreement. While exploring the concept of “equality before the law,” he talks about the French droit administratif—administrative law. Apparently they had/ have a different law administered by different courts to deal with disputes between ordinary citizens and state officials, bureaucrats and the like. Dicey had written that this proved that the French officials, “when litigating in their official capacity with ordinary citizens, were ‘to some extent exempted from the ordinary law of the land.'” Leoni writes-

The fact is that the conseil d’etat provides ordinary citizens in France as well as in most countries of Western Europe with a fairly unbiased and efficient protection against what Shakespeare would have called “the insolence of office.”

For Dicey, equality means there must be one law applicable to everyone—no exceptions. Hayek doesn’t have a problem with two separate laws—common law, and administrative law. The benefits of having an administrative law are clear. We might say that all are equal in the eyes of law, but the State, and its apparatus, is in some way, superior to ordinary citizens. It has powers that citizens don’t. And unless common law is implemented in such a way that courts do not defer to the executive—the State—and are independent of it, the State invariably becomes a judge in a case involving itself. Which is ridiculous. Further, one should note the warning issued by Lord Acton-

I cannot accept your canon that we are to judge Pope and King unlike other men, with a favorable presumption that they did not wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. All power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority.

Though he understand pretty well the problem involved, Leoni is not comfortable with the “two laws” idea. He says-

Dicey cannot be justly criticized for his condemnation of administrative tribunals on the basis of a principle he has so clearly enunciated, viz., the universal subjection of all classes to one law. Otherwise we ought to conclude that while all men are equal before the law, some men are “more equal than others.”

In fact, we now know how far the interpretation of the principle of equality before the law can go in political systems in which the principle of the purely formal—nay, of the ceremonial—legality of any rule whatever, regardless of its content, has been substituted for the principle of the Rechtsstaat and, correspondingly, of “the rule of law” in its early meaning.

We can form as many categories of people as we want in order to apply the same laws to them. Within each category people will all be “equal” before the particular law that applies to them, regardless of the fact that other people, grouped in other categories, will be treated quite differently by other laws. Thus, we can create an “administrative law” before which all people grouped in a certain category defined in the law will be treated in the same way by administrative tribunals, and side by side with it we can recognize a “common law” under which people, grouped in other categories, will be no less equally treated by the ordinary courts. Thus, by a slight change in the meaning of the principle of “equality,” we can pretend to have preserved it. Instead of “equality before the law,” all that we shall have will then be equality before each of the two systems of law enacted in the same country, or, if we want to use the language of the Dicean formula, we shall have two laws of the land instead of one. Of course, we can, in the same way, have three or four or thousands of laws of the land—one for landlords, one for tenants, one for employers, one for employees, etc. This is exactly what is happening today in many Western countries where lip service is still paid to the principle of “the rule of law” and hence of “equality before the law.”

The idea of “equality before the law” cannot be sacrificed to expediency.

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There is a pernicious legal theory which states that all rights emerge from the State—no State, no rights. Legal positivism. It is a sibling of logical positivism. The question of who has the right to “make” laws is the subject matter of another chapter, and therefore another post. But I would like to quote what Dicey said about the “legal spirit” in England-

If it be allowable to apply the formulae of logic to questions of law, the difference in this matter between the constitution of Belgium and the English constitution may be described by the statement that in Belgium individual rights are deductions drawn from the principles of the constitution, whilst in England the so-called principles of the constitution are inductions or generalizations based upon particular decisions pronounced by the courts as to the rights of given individuals.

In sharp contrast lies the position in nearly every other country, including the United States, where no matter what the constitution says its founding principle is, rights are presumed to emanate from it. After Oliver Wendell Holmes’ hatchet job (via Reason) in 1905, in practice, the US Constitution is nothing more than a worthless piece of paper. He said about a case where he dissented-

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics…Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

So, “law” is what the majority says it is. Since rights emanate from the constitution, and the constitution is a blank slate on which anyone can scribble anything, rights don’t exist.

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The discussion then moves on to what is meant by “certainty.” Since this is then continued in the next chapter, I will tackle them together in the next post.