Governing and the Rule of Law

It is not because a law has been democratically and duly adopted that it necessarily exemplifies the rule of law. It is not because democratically elected politicians govern that governing is good. One current example is given by the US and EU governments siding against Apple and in favor of its developers (outside suppliers) and competitors, under some antitrust “laws” that pretend to determine what consumers want. Another of the myriad of cases that could be cited is the US government siding with the United Steelworkers against US Steel which wants to strike a bargain with Nippon Steel. (On Apple, among other reports, see “Apple Turns to Longtime Steve Jobs Disciple to Defend Its ‘Walled Garden,’” Wall Street Journal, March 27, 2024.) Not to mention discrimination for or against preferred identity groups.

For Anthony de Jasay, the central problem with the state is that it takes sides among its citizens, favors some and harms others, which he sees as the essence of governing. His ideal and unattainable “capitalist state” would not govern: its raison d’être would be only to ensure that a worse state, intent of governing, does not take over. In other words, the problem is that the state discriminates against some citizens in order to favor others.

This idea is not quite as revolutionary as it appears. Less radical liberals believed in a similar theory. Nobel prizewinner Friedrich Hayek argued that, in the classical liberal tradition, a law must be a general and abstract rule that applies to unknown future cases and cannot target any specific individual or group. (See his Law, Legislation, and Liberty, especially Volume 1 and Volume 2.) James Buchanan, another Nobel economist, also believed that a law cannot discriminate against any individual or group. The rule of law defines what we otherwise describe as a government of laws, not of men.

The rule of law in the liberal sense is more demanding than what most people (including many if not most lawyers) believe. The law is not merely a trick that allows a democratic government to do anything it wants provided it respects certain formalities, such as adoption by the two chambers of Congress and the signature by the president. For example, a “law” decreeing that all citizens will have their left arms equally amputated would be no law in the liberal sense.

To be consistent with the rule of law, a law must also have some substantive content. For Hayek, it needs to be essential for the maintenance of an autoregulated order. For Buchanan, a law must respect constitutional rules that presumptively meet the consent of all and every individual in the society. Contrary to what Vladimir Putin claimed, and despite his laughable efforts to give his state the look and feel of democracy, there cannot be a “dictatorship of the law,” for the two terms are antinomic terms. (On Putin’s “dictatorship of the law,” see Geoffrey Hosking, “Dictatorship of the Law,” Index of Censorship, Vol. 34, No. 4 [2005].)

The objection that the state cannot avoid discriminating is weak. Criminals are often proposed as an example. But a liberal state does not “discriminate” against criminals since laws against murder or other major threats to the ethics of reciprocity (Buchanan) or to the autoregulated social order (Hayek) are known in advance and do not identify by name any specific individual, association, or corporation. Nobody who does not want to be treated as a criminal only has not to commit such crimes. This also implies that a liberal state cannot grant a subsidy that is not available to all.

De Jasay, who was both a liberal and an anarchist, did argue that it is impossible for the state to literally treat everybody equally because equal treatment along one dimension always represents discrimination by another criterion. For example, treating everybody equally for Medicare premiums and benefits means discriminating against men, who statistically survive fewer years than women.

One objection to de Jasay’s thesis is that a state that takes sides may be welcome if, for each individual, the net effect of the multiple interventions is favorable or neutral. Many seem to think that way: “I lose this time at the roulette of politics, but I will win next time. Leviathan hates me today but he will love me tomorrow.” In reality, it is as likely that the total economic cost of state interventions is higher than their total economic benefits for some individuals. The purpose of the social contract posited by Buchanan, with its overarching rules strictly limiting redistributive policies, is to ensure that no group of individuals would be continously exploited. De Jasay replied that such a social contract is impossible. At any rate, he would argue, churning (alternatively giving to and taking from the same individual) to the point where most people cannot know whether they are net beneficiaries of the state or not, wastes resources and reduces nearly everybody’s liberties. He envisioned the Plantation State as the end result. (See his book The State.)

The basic question is whether governing (“taking sides”) and the rule of law are compatible.

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PS: My defense of Apple has nothing to do with my personal preferences. My computer fleet counts many Windows machines and only for my smartphone do I currently choose Apple. As a consumer, I would be personally more inconvenienced if Leviathan destroyed Microsoft than if it succeeds in destroying Apple. Yet Apple does provide useful competition—market competition, not competition as politicians and bureaucrats imagine in their legal dreams. I could survive with Linux.

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To illustrate this post, I tried to have ChatGPT and his silicon colleague DALL-E draw a large crowd of individuals without their left arms after a democratic law had forced all citizens to be equally amputated according to the so-called “rule of law.” He refused to do that. After many unsuccessful efforts, I finally gave up and asked “him”: “Generate an image showing DALL-E walking on eggshells after being asked a question that could be seen as politically incorrect. … Eggs must be everywhere in the sensitivity field with only a tiny path of political correctness.” The featured image of this post is the best one I could get, and the bot confirmed: “I’ve created a new image showing DALL-E navigating a tiny path of political correctness through a vast field of eggshells.”

DALL-E walking on eggshells in a sensitivity field with only a narrow path of political correctness