Welcome to the best little strip mall in San Clemente. It’s offers one-stop shopping
for your pursuit of happiness, from condoms, to beer, to bongs, cheap pizza, donuts, cigarettes,
and lotto tickets. It’s got easy money if you plan a shopping spree and tools of war
if things head south in a hurry. Almost anybody can find something to like here. More importantly
though, almost anybody can find something to dislike, to criticize as pornographic,
addictive, and/or dangerous. And yet this strip mall stands. It stands as a monument
to the virtues of toleration, liberty, and free trade. For all this, we can thank the
rule of law.
The rule of law, in its most basic form, guarantees that we can reliably predict whether or not
our actions will land us in court. The rule of law thus requires that the public have
ready access to the laws and that the laws apply only prospectively, never retroactively.
The rule of law means equality before the law. No one can rise above it.
Aristotle made the point thousands of years ago, “The rule of law . . . is preferable
to that of any individual. On the same principle, even if it be better for certain individuals
to govern, they should be made only guardians and ministers of the law.” John Locke, in
his Second Treatise, put the matter this way, “Freedom of men under government is, to
have a standing Rule to live by, common to everyone of that Society, and made by the
Legislative Power erected in it; a Liberty to follow my own Will in all things, where
the Rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, Arbitrary
Will of another man.”
Thomas Paine, a political theorist, who gave voice to the American revolution of 1776,
made the point with characteristic vigor. “In America, THE LAW IS KING.”
Without the rule of law, this strip mall probably wouldn’t even exist. If you can’t find,
figure out, or predict the law, you won’t invest in real estate, build up an inventory,
or engage in long-term contracts. Indeed, without the rule of law, you probably won’t
risk more than simple barter.
Is the rule of law simply a matter of procedure? Or does it also concern the content of rules?
Thinkers in the classical liberal tradition have argued that if the rule of law means
anything, it has to protect the individuals against state power. Nobel Prize winning economist
Friedrich Hayek observed that the procedural aspects of the rule of law shape its substance.
The rule of law must protect individuals against overarching state power, because otherwise,
complete power will create complete confusion. “When the government has to decide how many
pigs are to be raised, or how many busses are to be run, which coal mines are to operate,
or at what prices shoes are to be sold, these decisions cannot be deduced from formal principles
or settled for long periods in advance. They depend inevitably on the circumstances of
the moment.” If the law tries to control everything, it simply can’t nail down all
the details. Hayek concluded that the rule of law requires restraint on lawmakers and
that this necessarily implies “recognition of the inalienable right of the individual.”
On that view, the rule of law means more than simply filing out the proper forms. I leave
you with a cautionary quote from James Madison, one of those brave revolutionaries inspired
by Thomas Paine. “It will be of little avail to the people, that the laws are made by men
of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent
that they cannot be understood; if they be repealed or revised before they are promulgated,
or undergo such incessant changes that no man, who knows what the law is to-day, can
guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be
a rule, which is little known and less fixed?”
You don’t have to approve of all the vices served by this strip mall to appreciate that
it stands for a big virtue, the rule of law. The rule of law provides a necessary framework
for civil society, allowing us to live together in peace and prosperity. Because the rule
of law allows each of us an individual choice, we can each choose which of these vices, if
any, to pursue. Me, I’m here for the haircuts.