Understanding the Rule of Law Beyond Obedience to Government

The traditional understanding of the rule of law doesn't merely equate to "obey the government". The concept of the rule of law is not simply a moral obligation to abide by legislation. There are numerous historical instances of oppressive legislation that make this notion untenable. If the rule of law doesn't mean obeying whatever laws are enacted, then what does it truly mean? Murray Rothbard proposed that this question can only be answered through ethical guidelines, which he built around the concepts of self-ownership and property rights. Rothbard viewed property rights as absolute and inalienable natural rights. From this perspective, eminent domain legislation is considered unethical and unjust. The situation in New York provides a clear example of this, as explained by the Institute for Justice.

The Eminent Domain Legislation in New York

In New York, eminent domain allows the government to seize your property, even if you are unwilling to sell. Traditionally, the Fifth Amendment stipulates that eminent domain must be for a 'public use', which would typically include projects like roads or bridges. The government is also required to pay the owners 'just compensation' for their property. However, in 2005, the U.S. Supreme Court significantly expanded the definition of 'public use' to include private economic development in its decision in Kelo v. New London. This means that local governments can condemn homes and businesses and transfer them to new owners if they believe that the new owners will generate more taxes or jobs with the land. Justice Sandra Day O'Connor warned in her dissent that this decision puts all property at risk of condemnation.

South Africa's Expropriation Laws

South Africa has taken its expropriation laws a step further by including anti-racism, equity, and protection of "vulnerable groups" as a "public purpose" in its constitution. The constitution also states that the state may take legislative steps and other measures to redress the results of past racial discrimination. Proposed amendments for expropriation without compensation would allow for nil compensation, meaning that no compensation would be explicitly permitted under the constitutional provisions requiring payment of compensation. The argument is that in some cases, an amount of nil would be just and equitable, and therefore "expropriation without compensation" is implicitly allowed.

Implications for the Rule of Law

Any legal system that claims to protect property rights but empowers the state to extinguish property rights in the "public interest" cannot claim to uphold the rule of law. The traditional understanding of the rule of law not only meant "obey the government" but also encapsulated the ideal of individual liberty and the notion that the law should provide all individuals with equal protection for their rights to liberty and property. The rule of law commands wide respect because it transcends political and ideological divisions, reflecting the ideal that all citizens enjoy the equal protection of the law against the violation of their rights. If the rule of law requires the equal protection of citizens' property rights, then any laws which extinguish property rights instead of protecting them are not "the rule of law" but its very antithesis.

The Rule of Law and Justice

In "The Constitution of Liberty", Friedrich Hayek distinguishes between what is legal, in the sense that it is permitted by the law, and the rule of law as a constitutional principle that limits the powers of the state, including its power to enact legislation that undermines liberty and justice. Many terrible things can therefore be legal — slavery was legal for many centuries, and racial segregation was legal in many jurisdictions. Abortion and euthanasia, which many people also hold to be abhorrent, are also legal in many jurisdictions. Current race-based laws, described as "equity," are also legal in that they are permitted by various equality, human rights and civil rights laws. But as Hayek observed, the fact that what the state permits is completely legal does not mean it conforms to the rule of law. Hayek saw the rule of law as “a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal … a common ideal shared and unquestioningly accepted by the majority.”

The Sanctity of Property Rights

Statutory interventions that undermine property rights reveal a painful truth — Hayek’s notion of a “political ideal” shared by the majority is breaking down. Many in the West no longer uphold the sanctity of property rights reflected in the English or early American common law. Instead, they embrace utilitarian precepts that accord significant weight to egalitarian ideals. In a cost-benefit analysis of seizing people’s homes to house immigrants, they would give significant weight to diversity, inclusion and equity as a benefit of such expropriation. Yet even in the face of these pressures — indeed, especially when faced with these challenges — it is important to uphold the rule of law in its traditional sense of an ideal requiring the protection of life, liberty and property.

Bottom Line

The rule of law is a complex concept that extends beyond mere obedience to government. It is a principle that requires the protection of individual liberties and property rights. As we navigate through changing societal norms and values, it is crucial to remember the foundational principles that underpin the rule of law. What are your thoughts on this matter? Do you believe the rule of law is being upheld in its traditional sense? Share this article with your friends and engage in this important discussion. Don't forget to sign up for the Daily Briefing, which is delivered every day at 6pm.