“Rule of law” is the slogan of the day. Back in 2004, a legal academic named Brian Tamanaha observed that the phrase was on the lips of everyone from George W. Bush to an Afghan warlord named Abdul Rashid Dostum. Since then it has only gotten worse. By the early 1990s, the term was cropping up in the New York Times an average of eighty times a year, while, by the late 90s, it was appearing 300 times or more. By 2007-10, the rate was up to 400. It hit 599 in 2016, 547 in 2017, and 413 so far in 2018, with half the year still to go.
Yet no one even knows what it even means. To be sure, rule of law (henceforth RoL) seems to imply something about consistency, transparency, and the importance of avoiding anything suggestive of arbitrary one-man rule. But beyond that, it’s anybody’s guess, which is why Tamanaha describes it as “exceedingly elusive.”
But it’s worst than that — not just elusive but downright meaningless. The reason is clear. Despite nearly endless liberal evasion and pettifoggery, law is best understood in simple, straight-forward terms as an instrument of the sovereign, something that he, she, or it employs to structure society in a way that is conducive to its rule. If “we the people” want to remain in charge, in other words, then they must continually democratize society in order to deepen and extend their rule. Otherwise, popular sovereignty will collapse, giving way to chaos and dictatorship.
But the important thing about an instrument is that it’s lifeless and inert without a real-live human being to put it to use. Hence, rule of law is no more logical than rule of hammers, shovels, or pitchforks. This was a point made by Thomas Hobbes, the great seventeenth-century theoretician of sovereignty who, thankfully, lies outside the Anglo-American liberal tradition. As one of his modern interpreter puts it:
A rule is inherently powerless; it only takes on life it is interpreted, applied, and enforced by individuals. That set of human beings that has final say over what the rules are, how they should be applied, and how they should be enforced has ultimate control over what these rules actually are. So human beings control the rules, and not vice versa.
Rather than RoL, the only thing that makes sense is rule by whoever is behind the law, whether it’s an absolute monarch, a sovereign people, or the international proletariat (which is the only thing a demos can mean in modern context). RoL has thus become a kind of meaningless incantation, a phrase that otherwise ruthless politicians utter to make themselves seem respectable.
But why now? Why is the term so popular? What is the meaning of such meaninglessness?
Here’s a quick stab at an answer. RoL is fundamentally an anti-democratic concept. Friedrich Hayek, who popularized the term in The Road to Serfdom, used it to describe a type of bourgeois state that limits itself “to fixing rules determining the conditions under which the available resources may be used, leaving to the individuals the decision for what ends they are to be used.” As with baseball or football, the idea is to lay down the rules once and for all and then get out of the way so that others can play.
But since no one would want to play baseball if the rules are constantly in flux, the point according to Hayek’s schema is to tamper with them as little as possible so that the game can continue uninterrupted. People may pivot and change on a personal level. But on a collective level, they must avoid any such temptation. The result is a conservative utopia in which consistency is a virtue and change a vice. The people may still rule in some attenuated sense. But their duty is to keep their hands off society so that self-regulating markets can flourish.
Thus, RoL can be seen as part of the great anti-democratic counterrevolution that began in the mid-1970s when Margaret Thatcher supposedly interrupted a milquetoast centrist at a Tory Party conference by fishing a volume of Hayek out of her handbag and slamming it on the table. “This is what we believe,” she proclaimed. The sacred market was now in control.
Except that it’s more complicated than that. Like other revolutions, the Hayekian version has wound up consuming its own children. Where de-regulation was all the rage in the mid-70s, what we’ve seen since, ironically, is a kind of regulatory mania in which great international structures like NAFTA, the World Trade Organization, and the eurozone have arisen in order to superintend free trade. Somehow, more regulation is needed so that de-regulation can work its miracles. When you toss in some of the other international regulatory structures that have taken shape since the 1970s, e.g. the war on drugs and the war on terrorism, then it’s clear that while the international arena is more law-bound than ever, it’s also more irrational, inconsistent, and opaque. No one knows who’s a terrorist and who isn’t, why a bomb carried by hand onto a crowded bus is worse than a missile fired by a remote-controlled drone, or why certain mind-altering substances are forbidden and others are not. All that we know is that there’s no point protesting because it’s all beyond democratic control. Entire continents are in ruins. Yet all citizens can do is keep their heads down in the hope that they don’t wind up among the 65 million people now classified as stateless refugees.
Instead of a system in which the people are sovereign, the upshot is one in which no one is truly sovereign and irrationality are thus given free rein. But the goal is still unchanged, i.e. to reduce democracy to the vanishing point and neutralize the working class. Not only is the legal structure exempt from democratic control, but democratic control has become all but unthinkable.
It’s fascinating that five years prior to The Road to Serfdom, Hayek sketched out the basic outlines of the European Union in a little-known article in the New Commonwealth Quarterly in September 1939. Entitled “The Economic Conditions of Interstate Federalism,” it said that the goal was to limit the nation-state by encasing it in a larger free-trade zone whose governing board would be limited as well. Thanks to the transfer of economic power from the nation-state to some sort of supra-national union, Hayek declared, “trade unions, cartels, or professional associations will lose their monopolistic position,” while “much of the interference with economic life to which we have become accustomed will be altogether impracticable.” Socialism would become impracticable as well since neither the federation nor the individual nation-states would have sufficient power to put it into effect.
Hence, the answer to workers’ revolution was not firing squads and concentration camps, but a supra-national federal order that would nip it in the bud. Hitler was not too ruthless, it seems, but not ruthless enough. “[T]he abrogation of national sovereignties and the creation of an effective international order of law,” Hayek concluded, “is a necessary complement and the logical consummation of the liberal program … if the price we have to pay for an international democratic government is the restriction of the power and scope of government, it is surely not too high a price, and all those who genuinely believe in democracy ought to be prepared to pay it.”
Radical shrinkage was the key to democracy’s survival. It was the prewar version of destroying a village in order to save. It’s fascinating how the broad outlines of the postwar order began taking shape just as the tanks were beginning to roll – and how, with the EU crumbling and the US in an advanced constitutional crisis, the Hayekian concept of the Rule of Law is now being trotted out in support of a post-Hayekian order that is rapidly breaking down.
Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory(Cambridge: Cambridge Univ. Press, 2004), 3.
Jean Hampton, ibid., 48.
F.A. Hayek, The Road to Serfdom(Chicago: Univ. of Chicago Press, 2007), 113.