Picture of Themis

Our rights are slowly being taken away by "laws" that specifically target a group. Politicians do not seem to understand that when they create legislation favoring one group over another that we all lose some rights.

"Rule of Law". A law should not grant a privilege to a group or person nor should a law discriminate against a group or person.

F.A. Hayek, Judge Robert H. Bork, and others refer to the "Rule of Law" in their books. Many politicians pay lip service to the "Rule of Law". And yet most legislation does not pass the test of what a law should be under the "Rule of Law". If legislation does not pass the "rule of law" test then it is not a law, it is social planning.

The following are excerpts from F.A. Hayek's book The Road to Serfdom.

The Law of the Constitution, by A.V. Dicey, p. 198, states, "the Rule of Law" means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government.

"Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge. Though this ideal can never be perfectly achieved, since legislators as well as those to whom the administration of the law is intrusted are fallible men, the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough. While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts."

Social planners, Socialist, are always talking about fairness. What does this really mean? "If we want to test the usefulness of the principle of "fairness" in deciding the kind of issues which arise in economic planning, we must apply it to some question where the gains and the losses are seen equally clearly. In such instances it is readily recognized that no general principle such as fairness can provide an answer. When we have to choose between higher wages for nurses or doctors and more extensive services for the sick, more milk for children and better wages for agricultural workers, or between employment for the unemployed or better wages for those already employed, nothing short of a complete system of values in which every want of every person or group has a definite place is necessary to provide an answer.

There can be no doubt that planning necessarily involves deliberate discrimination between particular needs of different people, and allowing one man to do what another must be prevented from doing. It must lay down by a legal rule how well off particular people shall be and what different people are to be allowed to have and do. It means in effect a return to the rule of status, a reversal of the "movement of progressive societies" which, in the famous phrase of Sir Henry Maine, "has hitherto been a movement from the status to contract." Indeed, the Rule of Law, more than the rule of contract, should probably be regarded as the true opposite of the rule of status. It is the Rule of Law, in the sense of the rule of formal law, the absence of legal privileges of particular people designated by authority, which safegaurds that equality before the law which is the oppostie of arbitrary government."

The following are excerpts from Robert H. Bork's book The Tempting of America.