More flawed arguments against the rule of law

Friederich Hayek’s book The Road to Serfdom renewed the interest in the notion of the rule of law. However, not many of those who follow Hayek’s ideas seem to realize that Joseph Raz, a renowned law philosopher teaching at Oxford, published in 1977 a critique of what in his view was the exaggerated value that Hayek saw in the rule of law. He called it a fallacy.

In academic circles and in philosophical reviews Raz’s objections to Hayek are the starting point of most studies that deal with the concept of the rule of law. On his part, it seems that Hayek was never aware of the criticism, and the same applies to those who follow his ideas. Today, each group writes for its public.

I have tried to examine Raz’s objections to Hayek. This is the third article on the issue.

Raz concludes his criticism of Hayek’s ideas by saying that we should not sacrifice social goals on the altar of the rule of law (The Rule of Law and its Virtue p. 229). However, he never tells us what are the social goals he has in mind and why the rule of law might be an obstacle to them. Andrei Marmor, also a law philosopher, agrees with Raz and reminds us that, as with delicious jam, we may have too much of a good thing (The Rule of Law and its Limits).

I think that we all agree that deviations from the rule of law are not to be lightly considered. Especially so if we bear in mind that the very idea that the law rules, and not men, requires that we do not adhere to it only when we find it convenient.

Moreover, Raz compares the rule of law with a sharp knife. In his view, it is a tool that may be useful for different purposes. But then, why is that he argues against that multi-purpose tool saying that we should not sacrifice “social goals” to it? What is in the goals Raz has in mind that make the tool unsuitable?

One would have expected Raz and those who follows his tracks would have been more explicit about the goals they want to see pursued by means of deviations from the rule of law. What deviations, decided by whom, in what areas, for what goals?

We may have an inkling of the kind of goals that Raz does not like to see injured by too much respect for the rule of law by noticing that he refers to “social” goals. We may get another clue if we consider what are the goals that require that governments do not tie themselves to rules and instead decide each issue “on the merits”, according to circumstances that cannot be evaluated beforehand.

Of course Hayek has explained in detail what these goals are, and why they require that we abandon the ideal of the rule of law. I have summed up Hayek’s explanation in the first article of this series. Economic planning cannot be even attempted if one is not prepared to leave fundamental decisions to bureaucrats that will evaluate them –as Hayek put it- “on the merits”. That means, according to the situation as it looks to them, but not according to any rule. Unless, of course, we play with words and call the statutes that command them to pursue some goals, “rules”. Hayek has explained why stating a goal, say “economic inequality must be reduced”, is different from ruling that “contracts should be signed by the parties”.

The problem is not solved by putting judges instead of bureaucrats in charge of making decisions “on the merit”. That changes only the man who rules, but does not comply with the rule of law.

The social goals that require deviations from the rule of law and prompted Raz to criticize Hayek’s “fallacy” must have been economic improvements sought through planning, income equalization, and the like. We must remember that Raz wrote in 1977, at a time when many people still took central planning very seriously.

If Raz had tried a direct attack, he should have argued that these other social goals that clash with the rule of law are indeed at our reach and not a mirage, and that they are of such value that they compensate us for what we would lose by deviating from the rule of law. He did neither of that.

In his article, Raz follows an indirect path. He does not dwell much on what we might gain by pursuing his “social goals”; instead, he tries to show that we may lose little; that what we put in the balance is not as valuable as Hayek makes us believe.

As we have seen, Raz asserts that the value of the rule of law is merely negative (see first article), and so he implies –without asserting it or proving it- that the loss might not be so big. We may lose some of the sharpness of the knife, but that concerns only a tool.

The use of imaginary situations

Modern philosophy of morals is based to a large extent on counterfactuals, that is imaginary situations that we know are different from what is actually true. Paradoxically, the most useful of these counterfactuals seem to be those that are not merely false, but impossible. John Rawls ask us to imagine people who know nothing about their property, their achievements, and their faults but must decide who owns what; Ronald Dworkin ask us to imagine people who contract insurance against the risks of life before they are born; and I have heard of other thinkers who imagine legislators that are separated form their voters by a wall that prevents any communication.

The key trick in using that method is this: one does not store our well meditated conclusions for the time when these situations present themselves (if that ever happens). No, we say that our conclusions apply to the real world, where people know what belongs to them, where ghosts cannot insure themselves before acquiring human features, and where legislators can –if they want- talk with voters.

To convince us that Hayek has overvalued the rule of law, Raz writes: “A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law” (p. 211).

Certainly, in principle all that is possible. But “in principle” means here: if we set aside all that we know about dictatorial regimes, and if we refrain from searching for real examples, then we can say that we have shown that there is a fallacy in Hayek’s praise of the rule of law. For at least in principle things could be as they are not.

Raz's argument has been repeated in many books. Back on this world of ours, we know that disrespect for the rule of law is the first fault of tyrannies, and the one that leads to all their other calamities. But apart from that, we must remember that Hayek’s book was not dedicated to the problems of backward, non-Western, tyrannies. He was concerned with the pressing fact that many Western democracies were abandoning the ideal of the rule of law.

Neither was Raz writing about the pros and cons of the rule of law for non-Western tyrannies. He was teaching and writing in England, he was answering to a book that touched almost only Western experiences, a book that was first meant –as Hayek said in its prolog-  to an English audience, and the “social” goals that demanded departures from the rule of law, were goals recommended by many English political thinkers, and of course –at that time- by the Labour party. So to argue by referring to an unidentified non-Western regimen is rather circuitous.

But even if we accept for a moment that unjustified change of context, we must realize that –for instance- women suffer in backward countries because they are in a way outside the law, they are ruled by the whim of their husbands, their parents, and even their brothers. Slaves were in a similar situation. None of them can sue their masters. Of course we can say that the law of the land is that women must be ruled by men, or slaves by their owners. But then they are not ruled by laws in the way we understand the rule of law. They are ruled by men authorized by laws to do so.

Moreover, in what way would the situation of persecuted minorities improve if those who oppress them refuse to follow certain and established rules? First of all, oppressors do exactly that, they rarely limit themselves by rules; and much of their power comes from the fact that their victims cannot know in advance where the next blow will come from. It is true that discretionary powers may sometimes allow victims to buy some relief from corrupt officials. But legal restrictions also offer loopholes that may be used to palliate their oppression. However, all that refers to relief and palliation, not to firm rights.

The surest way of improving the situation of oppressed women and persecuted minorities is to subject them to the same rules that are applied to all others. The tried method involves, among other things, allowing them to sue their oppressors in the same independent courts that are open to everyone else; allowing them to acquire property by their work, as any other person.

As to “extensive poverty”, Hayek has given detailed reasons that show why failure to uphold the rule of law is an obstacle to progress. Experience has confirmed him. Raz examined neither reasons nor experience.

The case of the Apartheid

In an attempt to descend to reality, Andrei Marmor mentions the Apartheid regime in South Africa and says that it was “quite legalistic”. After Hayek, it should not be necessary to say that respect for the rule of law and “legalistic” are not the same.

The Apartheid was a policy, and its goals demanded many deviations from the laws that had ruled South Africa before the elections of 1948. That change was pursued by politicians with the aim (the “moral” purpose, see first article) of favoring the white minority because it constituted the majority of voters. As it is shown in a detailed study of the beginning and the evolution of the Apartheid (W.H. Hutt: The Economics of the Color Bar), the resulting regime presented the typical features of those where a majority of voters use law to oppress a minority (with the difference that in South Africa the majority of voters was a minority among the whole population).

To use Hayek’s image, the statutes enacted after 1948 were not signposts on the road indifferent as to where drivers wanted to go: they had a definite direction. Only the goal of favoring whites was stable, not the rules. Black workers were excluded from certain areas, from certain jobs, and sometimes from certain companies, according to the needs and preferences of public officials. People of Indian origin were removed from the shops they had owned -again, so that they did not compete with white shopkeepers.

Unless we are prepared to say –as did many distinguished law scholars- that Hitler respected the rule of law because all his exactions and murders were authorized by laws, we cannot say the same of the Apartheid.

To argue against the value of the rule of law by referring to the fate of persecuted people under tyrannical regimes is like lecturing about the dangers of drinking too much water and presenting as illustration the case of those who die from lack of it. Surely, those who suffer from thirst or from injustice will not be among those who dispute the value of water, or of the rule of law.