Hayek Quote of the Week - Rule of Law

[Robert Hettinga <rah@shipwright.com>]

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Date:         Mon, 21 Dec 1998 12:17:05 EST
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Subject:      Hayek Quote of the Week - Rule of Law
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                 Hayek Quote of the Week


"It is often not recognized that general and equal laws
provide the most effective protection against infringement
of individual liberty, this is due mainly to the habit of
tacitly exempting the state and its agents from them and
of assuming that the government has the power to
grant exemptions to individuals.  The ideal of the rule of
law requires that the state either enforce the law upon
others -- and that this be its only monopoly -- or act under
the same law and therefore be limited in the same manner
as the private person.  It is this fact that all rules apply
equally to all, including those who govern, which makes
it improbable that any oppressive rules will be adopted.

It would be humanly impossible to separate effectively the
laying-down of new general rules and their application
to particular cases unless these functions were performed
by different persons or bodies.  This part of the doctrine
of the separation of powers23 [fn23.  See W. S. Holdsworth's
review of the 9th edition of A. V. Dicey, _Constitution_, in
the _Law Quarterly Review_, Vol. LV (1939), which contains
one of the latest authoritative statements in England of the
tradition conception of the rule of law.  It deserves quotation
at length, but we will reproduce only one paragraph here:
'The rule of law is as valuable a principle today as it has ever
been.  For it means that the Courts can see to it that the
powers of officials, and official bodies of persons entrusted
with government, are not exceeded and are not abused,
and the rights of citizens are determined in accordance with
the law enacted and unenacted.  Insofar as the jurisdiction
of the Courts is ousted, and officials or official bodies of
persons are given a purely administrative discrection, the
rule of law is abrogated.  It is not abrogated if these officials
or official bodies are given a judicial or quasi-judicial
discretion, although the machinery through which the rule
is applied is not that of the Courts.'] must therefore be
regarded as an intergral part of the rule of law.  Rules must
not be made with particular cases in mind, nor must
particular cases be decided in light of anything but the
general rule -- though this rule may not yet have been
explicityly formulated and therefore have to be discovered.
This requires independent judges who are not concerned
with the temporary ends of government ,,, "


Friedrich Hayek, _The Constitution of Liberty_, Chicago:
U. of Chicago.  1960.  pp. 21-211.




Hayek Quote of the Week is a regular feature of the Hayek-L list.

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-----------------
Robert A. Hettinga <mailto: rah@philodox.com>
Philodox Financial Technology Evangelism <http://www.philodox.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'