What Is "Rule Of Law"?

Hilarious news: The Shiv Sena, which runs the Mumbai municipal corporation, closed down 27 Marathi-medium schools last year – because they don’t attract students. The comments from readers appended to the news report are interesting: one advocates “hanging the hypocrites”; another wants force to be used to send the children and grandchildren of pro-Marathi politicians to Marathi-medium schools; and yet another wants State power to be used to push the Marathi language.

I would prefer to liberate education from State control. The Mumbai municipal corporation should clear garbage, not run schools.

The State is but the “social apparatus of compulsion and coercion.” The less this coercion, the better.

Speaking of unbridled coercion, there is news from lawless Chattisgarh - where the lawless police are engaged in a declared civil war - that cops shot dead 8 rebels. No arrests, no trials, no “due process.” Very different from how in British times Sleeman and his men dealt with “thugee”: Over 4000 thugs were arrested and convicted in courts. Apart from “intelligence gathering,” the bulk of the “work” Sleeman and his men did lay in collating evidence for the courts. It was tedious work, but they did it because they believed in the rule of law.

So the question arises: What is the “Rule of Law”?

The idea of a rule of law implies that it is not the “rule of men” – which can be capricious and arbitrary. It implies that those in charge of running the “social apparatus of compulsion and coercion” do not themselves flout laws that the people obey. If the people cannot murder or rob, neither can their rulers.

These ideas first took root in feudal England. They began with the signing of the Magna Carta in 1215 AD, when the errant king, John, was forced to sign on the dotted line that he would follow “due process.” This is how the English fortuitously discovered the idea of “constitutional freedom.” This is how “liberty under law” was born. Not by subjecting the people to laws, rules and regulations. On the contrary, this was achieved by placing rulers under law. This is what we in India must achieve. We are ruled by a lawless bunch of cops, who are themselves under the orders of political goons. Rogues rule us. Not law.

Why has this happened? Hans-Hermann Hoppe explains why in his article contrasting monarchy with democracy that I linked to yesterday:

Only the ruling family – and to a minor extent its friends, employees and business partners – share in the enjoyment of the expropriated resources and can thus lead a parasitic life. Because of these restrictions regarding entrance into government and the exclusive status of the individual ruler and his family, private government ownership stimulates the development of a clear "class-consciousness" on the part of the nongovernmental public and promotes opposition and resistance to any expansion of the government's exploitative power.

A clear-cut distinction between the (few) rulers on the one hand and the (many) ruled on the other exists, and there is little risk or hope of anyone of either class ever falling or rising from one class to the other. Confronted with an almost insurmountable barrier in the way of upward mobility, the solidarity among the ruled – their mutual identification as actual or potential victims of governmental property-rights violations – is strengthened, and the risk to the ruling class of losing its legitimacy as the result of increased exploitation is heightened.

Thus, with the public government of unlimited democracy (as contrasted with limited monarchy), every petty tyrant joins the State and embarks on his own brand of tyranny. The idea of checks and balances becomes a fiction: all these public tyrants support and profit from each other’s tyrannies and corruption. This is why our politicians do not run the administration; rather, they make money from transfers and postings, selling “lucrative posts” to the highest bidders. With regular elections, and regular recruitment to the ranks of the bureaucracy, the public is befooled into thinking that they rule themselves. Their education in Civics only serves to blind them further.

Uneducated Englishmen of the middle ages understood political reality far better. It was then said:

The King is Under God and the Law.

That is, the King was under the law, not above it.

Till today, the monarch of the British people does not make law. The monarch only had a free hand in the “administration of justice.” This clear understanding prevailed right up to Adam Smith’s time. Till then, the English people inhabited a "private law society." In the Wealth of Nations (1776), Smith outlined the “three duties of the sovereign." Note there is no mention of making law, nor any mention of supplying society with money. I have highlighted the portion pertaining to the rule of law:

According to the system of natural liberty, the sovereign has only three duties to attend to; three duties of great importance, indeed, but plain and intelligible to common understandings: first, the duty of protecting the society from violence and invasion of other independent societies; secondly, the duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice; and, thirdly, the duty of erecting and maintaining certain public works and certain public institutions which it can never be for the interest of any individual, or small number of individuals, to erect and maintain; because the profit could never repay the expense to any individual or small number of individuals, though it may frequently do much more than repay it to a great society.

Democracy, public government, public law and public education - especially Civics - have truly befuddled us all. Today, parliament is “sovereign” – and it makes new laws every day, a power that no sovereign of old ever had. This is the tyranny of "public law." Bruno Leoni called this an age of "inflated legislation." Read his Freedom And The Law. I also recommend Friedrich Hayek's Law, Legislation & Liberty, especially the first two volumes.

In feudal times, the uneducated and simple-minded English people had another popular saying:

There is no King where Will rules and not the Law.

So here is another Truth to mull over:

In India, we have the world’s longest constitution, we have regular elections and a constitutionally established “independent” election commission, we have a supreme court and high courts, district courts and magistrates, we have police forces, we have bar councils and innumerable law colleges, and a “constitutional bureaucracy” on top of it all. We even have prisons and hangmen – but we do NOT have the rule of law. We are ruled by goons and baboons.

Q. E. D.