Political wisdom, dearly bought by the bitter experience of generations, is often lost through the gradual change in the meaning of the words which express its maxims. Though the phrases themselves may continue to receive lip service, they are slowly denuded of their original significance until they are dropped as empty and commonplace. Finally, an ideal for which people have passionately fought in the past falls into oblivion because it lacks a generally understood name. If the history of politic-al concepts is in general of interest only to the specialist, in such situations there is often no other way of discovering what is happening in our time than to go back to the source in order to recover the original meaning of the debased verbal coin which we still use. Today this is certainly true of the conception of the Rule of Law which stood for the Englishman’s ideal of liberty, but which seems now to have lost both its meaning and its appeal. FULL ARTICLE
Source link: http://blog.mises.org/10436/decline-of-the-rule-of-law/
Decline of the Rule of Law
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Re: “Equal Laws for All”:
The imperative of economic equality also generates a striking opposition between “social justice” and its liberal rival. The equality of the latter, we’ve noted, is the equality of all individuals in the eyes of the law — the protection of the political rights of each man, irrespective of “class” (or any assigned collective identity, hence the blindfold of Justice personified). However, this political equality, also noted, spawns the difference in “class” between Smith and Jones. All this echoes Nobel laureate F.A. Hayek’s observation that if “we treat them equally [politically], the result must be inequality in their actual [i.e., economic] position.” The irresistible conclusion is that “the only way to place them in an equal [economic] position would be to treat them differently [politically]” — precisely the conclusion that the advocates of “social justice” themselves have always reached. In the nations that had instituted this resolution throughout their legal systems, “different” political treatment came to subsume the extermination or imprisonment of millions because of their “class” origins. In our own American “mixed economy,” which mixes differing systems of justice as much as economics, “social justice” finds expression in such policies and propositions as progressive taxation and income redistribution; affirmative action and even “reparations,” its logical implication; and selective censorship in the name of “substantive equality,” i.e., economic equality disingenuously reconfigured as a Fourteenth Amendment right and touted as the moral superior to “formal equality,” the equality of political freedom actually guaranteed by the amendment. This last is the project of a growing number of leftist legal theorists that includes Cass Sunstein and Catharine MacKinnon, the latter opining that the “law of [substantive] equality and the law of freedom of expression [for all] are on a collision course in this country.” Interestingly, Hayek had continued, “Equality before the law and material equality are, therefore, not only different, but in conflict with each other” — a pronouncement that evidently draws no dissent.
FROM “An Inquiry Concerning ‘Social Justice’ and Its Influence”
“There can be little doubt about the source from which the Englishmen of the late Tudor and early Stuart period derived their new political ideal for which their sons fought in the 17th century; it was the rediscovery of the political philosophy of ancient Greece and Rome…â€
As much as I respect Hayek as an historian, I think this idea comes from the ethnocentrism of the English. Europeans never lost the political philosophies of Greece and Rome. They were taught in all of the universities, but they never sparked any kind of revolution.
The major themes of liberty and the rule of law were developed in the Reformation, especially the idea of the right of people to rebel against tyrannical kings. For example: “Vindiciae contra tyrannos (meaning: “Defences [of liberty] against tyrants”[1]) was an influential Huguenot tract published in Basel in 1579. The work proceeds through four questions concerning the response of the people to their king.†(Wikipedia.) The Dutch used the tract to justify their rebellion against Spain, then went on to refine the concept of the rule of law, which they based on the Biblical principal of the equality of all men before God. Locke absorbed many of his ideas during his stay in the Dutch Republic.
Of course, the Dutch and English traded a great deal and the English helped the Dutch in the early days of the revolt, so England became contaminated with Dutch ideas. Then the capture of England by the Dutch in 1688 turned the island into a virtual Dutch colony.
The idea of crediting the “rediscovery†of Greek and Roman philosophy for the political ideals of the 17th century probably came from the fact that many writers of the period wanted to show that their ideas were new. They didn’t worship novelty as we do. So to demonstrate the ancient pedigry of their ideas, they discovered them in the Greeks and Romans.
I found “Decline of the Rule of Law†insightful on many levels. Hayek, by addressing the sole principle of isonomy (i.e., equality before the law) provides a guide to much of history. Moreover, he presents this as a quintessential precept for economics. Hayek writes “the control of production always means the creation of privilege, of giving permission to Peter to do what Paul is not allowed to do.†This means that *adhering to isonomy suffices to avoid any and all interventions to the economy.* Consequently, ensuring the rule of law suffices for understanding and restraining the whole panoply of government intervention.
Now statists and socialists will counter that we ought not treat unequal culprits equally, so that a poor man who is fined $100 is much worse off than is a rich man. Yet that views criminal justice in terms of the treatment of the perpetrator, rather than of the victim. *The main purpose of prosecution should be restitution*, which is a matter of restoring the victim to his prior situation. So consider that someone breaks into your house, and destroys your door. Should we conclude (as would the socialist) that the poor culprit should only pay half the price for restoring your door, while the rich culprit should pay twice the price? One could only view things in that manner if he disregarded the need to serve justice for the victim and for society.
It is impossible to “rule by divide and conquer” and the creation of inter-group conflict to the profit of those who pretend to impose “fairness”. The “rule of law” IS civilization, the most basic of all rules by which we cooperate for mutual self-interest. The barbarians are not only past the gate, they guard the gate.
Rule of law:
http://www.nazisociopaths.org/modules/article/view.article.php/c1/34
It MAY be hazardous to YOUR health to insist on this. It WILL be hazardous to your health not to.
“…the Rule of Law which stood for the Englishman’s ideal of liberty…”
No, it didn’t.
In the USA there is a common expression about “a government of laws, not men”. This is plumping for one answer to a question that was common in 18th and early 19th century Britain, “measures or men?”, the Whig one as opposed to the Tory one – but in Britain the question was never settled, it merely receded. So, in Britain, that one answer was not the “ideal of liberty”, it was just one view.
Weingarten wrote:
“The main purpose of prosecution should be restitution”
This may be the anarcho-libertarian point of view, but it is certainly not the mainstream one, and for a very good reason. The mainstream view, of course, is that prosecution should serve a punitive or negative reinforcement effect, in addition to a restitutive one. Otherwise, there would be very little disincentive for a very rich man to violate the rights of others. This is basic economics. Even Rothbard believed that the punishment should be twice the price of restitution, else a thief would win if he is not caught, and be out nothing even if he is.
Pray tell, what is the ‘external law’ not provided by the ‘state’? Law, legislation, statute, licit, legal, decree, edict, etc., are all terms that come from the ‘state’. However, just as nation-states don’t automatically deal with ‘third parties’ when a conflict arises why should private landowners? Why should private landowners have to have ‘third parties’ forced upon them to resolve their conflicts? Who polices the ‘third parties’? Where do the third parties get their morality from so that makes their decisions are just? If ‘third parties’ have the power to force private landowner to submit to their decisions how does this not deprive a private landowner of his private sovereignty and not make the ‘third parties’ nothing but a bunch of governments?
The logical conclusion in Anarchtopia is that the private landowners are the full sovereign owners and final arbitrators over their own land and can deal with conflicts with other private sovereign owners however they wish including to go to private war with other private landowners and ignore every ‘third party’ who passes by.
Russ is correct in criticizing my statement that “The main purpose of prosecution should be restitution.†I had focused upon the flaw of placing what happens to the perpetrator as above what happens to the victim or to society. For a fuller treatment, I should have elaborated that the purpose of law is negative, namely the protection of the individual and society. Such protection includes restitution, and also punishment so as to discourage crime (what Russ calls “negative reinforcementâ€). Moreover, the approaches for doing so are derived from natural law, including historic experience and reason.
So I should not have given the impression that the purpose of the law was solely restitution, but should have included prevention, and again that the priority for prosecuting the law places the impact on the victim above how the perpetrator is treated.
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