Adam Smith and the Invisible Hand
, by Edmund A. Opitz
, The Freeman
, Jun 1976
Explains mercantilism, the rationales for political power, government's proper role, Smith's "invisible hand" metaphor, his concept of "equality, liberty and justice" and how a free society allocates economic goods; from a lecture given 17 Feb 1976
The American system was to be based upon a different idea. It took seriously the ideas of God, the moral order, and the rights of persons. It discarded the notion of using government to arbitrarily disadvantage a selected segment of society, and instead embraced the ideal of equality before the law. Government, in this scheme, functioned somewhat like an umpire on the baseball field. The umpire does not write the rules for baseball; these have emerged and been inscribed in rule books over the years and they lay down the norms as to how the game shall be played.
Agenda for Liberty: A Biography of John Lilburne
, by Jim Powell, The Triumph of Liberty
, 4 Jul 2000
Lengthy biographical essay
Lilburne's ideas inspired Army radicals to draft the Agreement of the People, for a firme and present Peace, upon grounds of Common-Right. ... It envisioned a rule of law: 'That in all Laws made, or to be made, every person may be bound alike, and that no Tenure, Estate, Charter, Degree, Birth or place, do confer any exemption from the ordinary Course of Legall proceedings, whereunto others are subjected.' ... Agreement of the People was an historic achievement. Nowhere else had there such a serious effort to resolve fundamental issues through discussion.
Bush's Signing Statement Dictatorship
, by James Bovard
, 9 Oct 2006
Details some of Bush's (more than 800) signing statements and his "unitary executive" doctrine (invoked almost 100 times since he took office)
President Bush['s] action vivifies that the rule of law now means little more than the enforcement of the secret thoughts of the commander in chief. ... The American Bar Association recently declared that Bush's signing statements are "contrary to the rule of law and our constitutional separation of powers." ... Americans may have to wait many years to learn what the rule of law meant in 2006. The truth may be suppressed until Bush's aides begin publishing their memoirs or until the Supreme Court has a change of mood and decides that the executive branch is not entitled to boundless secrecy.
The Case for Impeachment: Why we can no longer afford George W. Bush
, by Lewis H. Lapham, Harper's Magazine
, 27 Feb 2006
Editorial discussing John Conyer's Dec 2005 resolution seeking establishment of a congressional committee to, among other things, "make recommendations regarding grounds for possible impeachment" of George W. Bush, and the bases for taking such action
On December 19 ... Senator Robert Byrd (D., W.Va.) issued a statement saying that 'we are a nation of laws and not men ...' ... Bruce Fein, former associate deputy attorney general under President Ronald Reagan, said of President Bush that he 'presents a clear and present danger to the rule of law' ... The heavy volume of angry protest on the Internet ... suggests that at least half of the American electorate ... knows that the Bush Administration operates without reference to the rule of law, also that the President believes himself somehow divinely ordained, accountable only to Jesus and the oil companies ...
Clinton in Africa
, by Thomas Sowell
, 15 Apr 1998
Crititcizes Bill Clinton for his "apology for slavery" and suggests he was playing the "race card ... to escape the consequences of his own actions"
... what ultimately happens to Bill Clinton is of minor importance in the grand scheme of things ... What matters infinitely more is preserving the rule of law that has spared us the tragic fates of so many other countries, all around the world. We should never forget that, even today, the rule of law is the exception — not the rule — among the nations of the world. Our great blessings as Americans come not from our personal merits but from our having the good fortune to live under a rare form of government, with a constitution dedicated to preventing concentrations and abuses of power.
The Constitution and the Rule of Law
, by Jacob Hornberger
, Aug 1992
Describes, using some of F. A. Hayek's writings, the concepts that individual rights do not stem from the U.S. constitution, that the latter is meant to "straitjacket" the government and the misunderstood (or forgotten) "rule of law"
Equally important, the legal concept of "the rule of law" was incorporated into our judicial system. As Hayek explains, the rule of law means that people do not have to answer to the arbitrary decisions of governmental officials; instead, they guide their actions by what is prohibited by a clearly defined law. Freedom, therefore, means answering only to a well-defined, previously established law, rather than to the arbitrary and discretionary edicts of some. Today ... the American people ... Believing that their rights come from government, they believe that government can rightfully regulate or take them away.
Decimating the Constitution with Military Tribunals
, by Jacob Hornberger
, 27 Sep 2006
Discusses what would become the Military Commissions Act of 2006 (MCA); note: in 2008, the U.S. Supreme Court ruled section 7 of the MCA unconstitutional, which led to the MCA of 2009
[A] long-established legal principle in the United States is "equal application of the law." What it means is that in the United States, the criminal law would be applied equally to everyone, rich or poor, government official or private citizen, foreigner or American. A closely related political principle is called "the rule of law." Contrary to popular opinion, it does not mean that people should obey the law. What it means is that people should have to answer only to a well-defined, previously enacted criminal law for their conduct, not to the discretion or arbitrary judgments of government officials.
A Free-Market Constitution for Hong Kong: A Blueprint for China
[PDF], by Alvin Rabushka, Cato Journal
Discusses the draft of the Basic Law of the Hong Kong Special Administrative Region, expected to be promulgated in 1990 (actually adopted 4 April 1990 and went into effect 1 July 1997), as a "free-market constitution"
Private property flourishes only within a framework of the rule of law. Article 8 stipulates that the laws in force in Hong Kong, including common law, customary law, and legislation, shall be maintained. Retention of the existing legal system serves to protect private property rights. In particular, the British legal system, arising from the common law, is especially concerned with protection of private property.
Friedrich A. Hayek (1899-1992)
, by Peter J. Boettke
, The Freeman
, Aug 1992
Lengthy biographical essay, including Hayek's criticism of Keynes and the impact of The Road to Serfdom
Hayek extended his analysis of society to an examination of the "spontaneous" emergence of legal and moral rules. His political and legal theory emphasized that the rule of law was the necessary foundation for peaceful co-existence. He contrasted the tradition of the common law with that of statute law ... He showed how the common law emerges, case by case, as judges apply to particular cases general rules which are themselves products of cultural evolution. Thus, he explained that embedded within the common law is knowledge gained through a long history of trial and error.
Hard Cases Make Bad Law
, by Jacob Hornberger
, 23 Mar 2005
Discusses the attempt by members of the U.S. Congress to have U.S. federal courts intervene in the Terri Schiavo case, already decided by a Florida district court
Thus, since the Schiavo case did not involve a federal or constitutional issue and did not involve citizens of different states, if one of the litigants had filed ... in federal court ... the federal judge would have dismissed the case for lack of jurisdiction ... This is an example of the "rule of law"—where a judge follows the law rather than deciding on his own to let the case proceed out of sympathy for one of the parties ... it's a commitment to the rule of law that motivated the U.S. district judge in the (new) Schiavo case to deny injunctive relief and the federal court of appeals to affirm that judgment ...
Hayek, Friedrich A. (1889-1992)
, by Ronald Hamowy, The Encyclopedia of Libertarianism
, 12 Aug 2008
Biographical and bibliographical essay
In that work, Hayek attempted to set out nothing less than a treatise on the theoretical foundations of a free society. A work of immense erudition, The Constitution of Liberty outlines Hayek's views on the origins and nature of law in a liberal society, his conclusions regarding the nature of justice, and his conception of a free society. A free polity, Hayek contended, is one in which men are governed by abstract, general rules that are predictable in their application and apply to all, in contrast to systems of government based on the exercise of wide, discretionary powers by those in authority.
Hong Kong's Legacy
, by James A. Dorn, The Journal of Commerce
, 1 Jul 1999
Discusses the potential results of Hong Kong moving away from "its policy of laissez-faire capitalism" such as intervening in support of stock prices versus the effects of Hong Kong influencing mainland China towards a freer and more prosperous economy
For O’Sullivan, as for the framers of the U.S. Constitution, 'The natural laws which will establish themselves and find their own level are the best laws.' The common-law tradition of Hong Kong should be the basis for a permanent rule of law that enshrines the principles of freedom and democracy — not just for the SAR but for all of China.
Is Ken Lay Really a Criminal?
, by William L. Anderson, Mises Daily
, 19 Jun 2006
The way that US attorneys work is that they pry guilty pleas from lower-level employees ... That the charges generally are nebulous or do not reflect mens rea, which used to be the bedrock of US criminal law, is irrelevant to federal prosecutors, who simply are playing to win by using all 'tools' Congress and the federal courts have given them.
John Locke—Natural Rights to Life, Liberty, and Property
, by Jim Powell, The Freeman
, Aug 1996
Extensive biographical essay, including summaries of his major works
"Reason, which is that Law," Locke declared, "teaches all Mankind, who would but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." Locke envisioned a rule of law: "have a standing Rule to live by, common to every one 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."
Libertarians and Liberalism: Essays in Honour of Gerard Radnitzky
, by George Leef, The Freeman
, Jul 1997
Review of the 1996 book, edited by Hardy Bouillon, which includes essays by Walter Block, Arthur Seldon, Hans Sennholz, Anthony de Jasay, Gordon Tullock, Antony Flew and Vaclav Klaus
In 'Libertarians and the Rule of Law,' Arthur Seldon explores the reasons for and implications of the decline of the rule of law. He writes, '"Democracy"' is propounded as an unquestioned political ideal—by politicians. The good word "public" has been debased into a cynical question-begging misdescription for the power-seeking by individuals who would fail in the competitive test of the market-place.' Too much law, he argues, undermines respect for and the enforceability of true law that protects human society.
A Libertarian Visits South America
, by Jacob Hornberger
, Freedom Daily
, Mar 1999
Relates Hornberger's trip to give lectures and participate in debates at the Instituto de Estudos Empresariais in Brazil and the launching of the Fundación Atlas para una Sociedad Libre in Buenos Aires
The afternoon sessions were devoted to "The Effects of Constitutional Law on the Wealth of Nations" and "The Constitution and the Rule of Law." ... The other afternoon session featured a debate with a law professor about the importance of the rule of law in a society. I emphasized the point that Friedrich Hayek made in The Constitution of Liberty — that the rule of law is essential to a free society. But I also pointed out that it is not sufficient for freedom; that is, constitutional restraints on the power of government to regulate peaceful activity were also necessary prerequisites of a free society.
The life and times of F.A. Hayek, who explained why political liberty is impossible without economic liberty
, by Jim Powell, 2000
Lengthy biographical essay, with extensive quotes; alternate version of "The Worst on Top" chapter of The Triumph of Liberty
Hayek noted that "today the conception of the rule of law is sometimes confused with the requirement of mere legality in all government action. The rule of law, of course, presupposes complete legality, but this is not enough: if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law. The rule of law, therefore, is also more than constitutionalism: it requires that all laws conform to certain principles ... The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be ..."
Related Topics: Capitalism
, Milton Friedman
, Friedrich Hayek
, Frank Knight
, Carl Menger
, Ludwig von Mises
, Mont Pelerin Society
, Nobel Prize
, George Orwell
, Karl Popper
, Thomas Sowell
The Quest for Cosmic Justice
, by Richard Ebeling
, Freedom Daily
, Dec 1999
Review of The Quest for Cosmic Justice
(1999) by Thomas Sowell
Sowell reminds us of just how unique the American experiment in free government was from its very founding. Justice meant the impartial enforcement of the rule of law, in which the rule of law referred to the protection of individual liberty, private property, and freedom of association and contract. Law was meant to represent the rules within which free men might voluntarily interact, without interference from the government. The outcomes from such free interactions and associations were not of central relevance: they were merely the spontaneous and often unintended results of human action.
Rule of Law Damaged by Schiavo Bill
, by Sheldon Richman
, 23 Mar 2005
Discusses the implications of the hurried legislation, which became known as the Palm Sunday Compromise, to allow the parents of Terri Schiavo to have federal courts another look at her case, after state courts had ruled against them
In the end, the bill probably won't prolong Terri Schiavo's life. But it may well cut short the rule of law. It is no defense of the Republicans to say that a young woman was being starved to death. Congress has no constitutional authority to exercise arbitrary power any time an emergency catches its attention, especially where there are no federal or constitutional issues at stake. That it is legally restrained from doing whatever it wants is part of what we mean by the rule of law. That's why its weekend actions are ominous. We must fear for the precedent it has set.
Unjust Immigration Law Is Not Law
, by Sheldon Richman
, 21 Nov 2014
Discusses President Obama's decision to defer deportation of some undocumented immigrants, although three years ago he had said he lacked such authority
The language of every law, including the Constitution, is subject to human interpretation, and therefore the rule of law in any political system we observe today is really the law of men and women ... In "The Myth of the Rule of Law," legal philosopher and libertarian John Hasnas argues that since no legal language is exempt from interpretation, law can't be determinate. Another legal scholar and libertarian, Randy Barnett, agrees, at least to some extent. He calls law "underdeterminate." ... "The fact is that there is no such thing as a government of law and not people," Hasnas concludes.
What the Martha Stewart Case Means to You
, by Harry Browne
, 5 Mar 2004
Examines the Martha Stewart insider trading case, including juror and prosecutor comments after the guilty verdict
But I care deeply about the kind of country America has turned into — one in which there is no firm rule of law and anyone can be prosecuted at any time for any kind of offense that the government wants to invent ... So here we are in modern America — a place where anyone can be charged with anything. And if there's no law against what you've done, the prosecutor can call it "conspiracy," "obstruction of justice," or "lying to investigators" because you claimed to be innocent ... But those rules aren't rules of law; they're rules of men, and they can be changed at a moment's notice.
Why No Indictment for Bernard Kerik?
, by Jacob Hornberger
, 15 Dec 2004
Comments on the lack of indictment for Kerik who withdrew himself from consideration as head of DHS for having employed an illegal immigrant, while executives from Tyson Foods and Walmart were charged or possibly being indicted for the same reason
One of the legal principles of a free society is ... "equal application" of the law ... if [a] representative body ... makes a certain activity a criminal offense, then the law should be enforced on everyone across the board, ... whether the offender is rich or poor, politically powerful or ... weak, and regardless of the consequences. A related political principle is ... the "rule of law" ... that ... entails everyone's having to answer only to a law that has been duly enacted ... as compared with ... "rule of men," where people are expected to respond to the arbitrary and capricious dictates of government officials.