The Corner

‘The Rule of Law’

John: That is awesome. Here’s Zernicke on the Rule of Law:

Representative Paul D. Ryan, Republican of Wisconsin, alluded to “The Road to Serfdom” in introducing his economic “Roadmap for America’s Future,” which many other Republicans have embraced. Ron Johnson, who entered politics through a Tea Party meeting and is now the Republican nominee for Senate in Wisconsin, asserted that the $20 billion escrow fund that the Obama administration forced BP to set up to pay damages from the Gulf of Mexico oil spill circumvented “the rule of law,” Hayek’s term for the unwritten code that prohibits the government from interfering with the pursuit of “personal ends and desires.”

Everything about this is hilarious. The rule of law is an “unwritten code”? Really? I thought the rule of law was the code. The rule of law is not “Hayek’s term” (it’s A.V. Dicey’s). But the idea stretches back to the earliest days of Western civilization. So on the one hand Hayek is obscure, but on the other hand he’s ecclipsed Aristotle, Locke, Montesquieu, and the gang. Way to go Hayek!

If I had said a day ago that your typical New York Times reporter doesn’t have the vaguest sense of what the rule of law means, I would have heard from all sorts of earnest liberal readers — and probably some conservative ones too — about how I was setting up a straw man. But now we know it’s true. It’s not just that she doesn’t know what it is, it’s that even after (presumably) looking it up, she still couldn’t describe it and none of her editors raised an eyebrow when she buttered it.

Google “Rule of Law” and the first hit is from Wikipedia, which is entirely serviceable for these purposes:

The rule of law is a legal maxim according to which no one is immune to the law.While the rule of law has been described as “an exceedingly elusive notion”[2] giving rise to a “rampant divergence of understandings”,[3] a dichotomy can be identified between two principal conceptions of the rule of law: a formalist or “thin” and a substantive or “thick” definition of the rule of law. Formalist definitions of the rule of law do not make a judgement about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.[4]

By the way, it’s worth noting that the rule of law is hardly an explicitly conservative concept and if it becomes one, we are all doomed. Human-rights groups, left-wing legal activists, democracy activists, all depend on RoL arguments for their causes.

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