Monday, April 4, 2011

Rule of Law

Good afternoon. Blog posts this week seemed to focus more on chapter 14, as well as lingering big-picture questions, so I will try to emphasize those.

But first, a short comment on chapter 13. The two main points I draw from this chapter are (a) a proper understanding of "rule of law"; and (b) equality of outcome v. equality before the law.

Hayek complements the history of chapter 13 nicely with the theory of chapter 14. Rule of law has come to be understood as something that follow a set of procedures; thus, if an abominable, unconstitutional law was passed following all the established procedures – many today claim – it follows the requirements of rule of law. That is, it was procedurally passed. However, Hayek reminds us (p. 205) that rule of law is broader, and includes such things as conformity of laws and government action to principle; lack of coercion (or only to prevent coercion); law (as emergent reflection of the community's moral tradition) rather than legislation (the engineered reflection of the Legislator's will); equal application of laws to all (the generality principle) and the principle that laws must be known and certain. Thus, much like democracy, rule of law has been misunderstood. And, just as majority rule is taken to be its own constraint, so has procedure. Hayek sets us straight.

Parenthetically, somebody asked how much certainty there is in US law. Getting technical on this excellent question, I'll answer: US law is very certain and very clear. US legislation is confusing and obfuscatory. That is, the law – as reflection of decades and centuries of tradition – is clear. I suspect that most of us would have a decent guess, without ever having studied the law, about many (or most) principles of the common law. These are, after all, a reflection of the community's standards. See Tony Honore's great little book _About Law: An Introduction_ if you're curious. Legislation, on the other hand, is confusing. One of the big problems we've seen in the US, since the Progressive Era, but also since the 1960s and 1970s, is the expansion of statutory/administrative law in the US, to the detriment of common law. If you're REALLY curious about this, see Hayek's brilliant (but dense!) three-volume _Law, Legislation and Liberty_.

Two more sidebar notes.

First, Hayek points out that France's administration survived 1789. Indeed, the French revolution leveled just about everything in society – except the state's exemption for itself from judicial control, and its establishment of a separate "judiciary" for matters of state (for details, see Tocqueville's _The Ancient Regime and the Revolution_. Thus, as far as I can tell, one cannot sue the French government in an ordinary court, but only in a special administrative tribunal. So much for rule of law, right?! I wonder if we're not headed in that direction in the US – since the Progressive era, and based in part on the writings of Max Weber, many administrative actions were deemed too technical for regular courts, so Administrative Law Judges (attached to governmental agencies, like FTC, FCC, etc.) were established. There's still overall review from SCOTUS, but doesn't it seem odd that, if you sue a governmental agency, the "impartial" court is made up… of employees of that agency? What do you think? Specialists or generalists?

Second, somebody brought up Montesquieu. My reading of him is mostly based on secondary sources, but, yeah…mixed bag. On the one hand, we are largely indebted to Montesquieu for separation of powers. On the other hand, the climate stuff does seem goofy (so a country's ideal government depends on its climate). And yet... Jeffrey Sachs and other economists have argued this, and we do tend to see democracies in temperate zones (not from the equator to the tropics, basically). Of course one would have to control for colonization. But still…

I can hear your sighs of relief all the way from Alaska. Finally, Hayek gives us something concrete! A five-point summary of the conditions for liberty, pp. 205-209. There you have it. In many ways, it seems to me, the rest of the book is background or elaboration on this summary. I don't have much to add, then, except (a) that the US is currently violating a lot of these conditions; and (b) you have good (and difficult questions) on some of these points.

On rule of law. As discussed above, the US currently faces an assault by legislation on law; likewise, we see many cases (income redistribution, regulation), where coercion is used for purposes other than preventing coercion.

On transparency and certainty of laws. Again, as discussed above. I once heard of an EPA administrator admitting that it is IMPOSSIBLE for any business in the US to be in full compliance with EPA regulations (legislation and not law); they're simply too complicated and too numerous. You've also probably heard of stories where a financial magazine will give the same income tax information to five different, established, top accountants: all five will come up with a different amount, because the law is so complicated in some places, and so vague in others (apparently, for a while, you could deduct a portion of business meals – but only if you had absolutely no enjoyment (!) of the meal, in which case it wasn't a business expense).

On equality before the law and the generality principle. The US has made great strides on equality before the law (although much remains to be done, I should think). The generality principle, on the other hand, is routinely violated. The GENERAL welfare clause in the US constitution means just that. A case can be made for military spending (within reason, see below), courts, etc. and maybe even provision of public goods as being in the GENERAL welfare. But privileging certain groups at the expense of others (the poor, the elderly, agribusiness, business general, domestic producers against foreign competition, etc.) is clearly not a promotion of the GENERAL welfare.

On separation of powers. Plainly, in the US today, we have a blend of powers (in the jargon, structural differentiation without concomitant functional specificity). The executive executes the laws, but also writes them (regulations and executive orders – legislation, technically), and adjudicates them (through ALJs, administrative law judges). The judiciary periodically rewrites laws (as judges think they should have been written) and executes them (busing of schoolchildren is but one example). And the list continues.

On discretion (non sub homini sed sub deo et lege, in the lovely Latin phrase: not under man, but under God and Law). We see this principle violated routinely. The prime example is congressional delegation of vague powers (in clear violation of the constitution, which vests sole legislative authority in the Congress) to administrative agencies with broad, unspecified mandates, and much discretion. I have also heard of cases where independent regulatory agencies can issue a "commissioner's finding" and reopen a case after the courts have either dismissed it or issued a ruling the commission doesn't like.

I couldn't quite weave these questions into the discussion, so here are some consolidated answers.

Somebody pointed out the British tradition, in which there is no written constitution, but a set of "constitutional documents," which, combined with tradition, serves as a check. It's not perfect at constraining government, but it works pretty well (but then again, how effective is the written US constitution). In addition, there is some separation of powers (Lords v. Commons, Crown). Anyway, this brings up the importance of informal constraints, captured in the idea of "constitutional culture." A constitution is just a piece of paper; people must accept to be bound by it, must be vigilant, and rulers must accept to be bound by it (to an extent; they'll always need reminding, but if they completely disregard it, things fall apart). So, in the end, while a constitution is a good reminder (see chapter 12 on the importance of a paper reminder), a machinery is also required to maintain liberty and the constitutional principles (p. 182). This machinery includes separation of powers, federalism, and other formal constraints, but also "constitutional culture" – people being fed up, voting, taking to the streets, refusing certain behaviors, etc. And this ties in with the question of constitutional change: on the one hand, a constitution must be permanent and entrenched (with the possibility of amendment), or it will mean nothing and majoritarianism/opportunism will prevail; on the other hand, a constitution is just a piece of paper, or a reminder – it will guide constitutional thinking, but must ultimately be interpreted according to prevailing standards, customs, and emergent tradition. Thus, a constitution will evolve, both formally (by amendment) and informally (by interpretation). The question lies in the balance, and staying true to original principle (to the extent it's still desired – sorry, I'm a realist!) and binding rulers. Occasionally, we'll find a need to correct the path-dependence, as Hayek pointed out in earlier chapters, but only piecemeal.

So, will checks and balances still work for a big government? We can only hope so… In theory, they should prevent big government in the first place. In practice, well, we do what we can. Remember some of the nice words and thoughts from the founders, like eternal vigilance as the price of liberty, and "a republic – if you can keep it."

On taxation, I think I posted a few weeks ago on this. First, "progressive" taxes are clearly a violation of the generality principle. You already pay more (in gross amount) if you earn more, without being punished by a higher tax bracket. Besides, richer people consume fewer government services, so they should have a lower tax bracket, right?!

On war powers, we're back to the blend between constitutional culture and formal mechanisms. I agree with the post on limiting war powers. Then again, how do we do so? The constitution already has clear provisions (like Congress having the power to declare wars, and three-year appropriations), but those haven't worked…

Finally, on "government" v. "society" I think there is a big difference. Between the individual and government, there is civil society – it's non-coercive and it's spontaneous, and it does many things that individuals and governments can't do. I'm out of room, but I can comment later on the clear difference (as I see it, especially in light of information aggregation problems and public choice critiques) between the two.

No comments:

Post a Comment