The following is an edited address I delivered to the European Center for Austrian Economics Foundation at the Princely Wine Cellars in Vaduz, Liechtenstein, on 19 February, having been awarded first place (ex aequo) in the Foundation’s Sixteenth International Vernon Smith Prize by HSH Prince Philipp of Liechtenstein for my paper, ‘Rule of Law: The Universal Unwritten Constitution’.

 
Your Highnesses, Chair, and other esteemed guests,
 
Thank you, not only for deeming my essay worthy of the recognition of the European Center for Austrian Economics Foundation, but for making the time to celebrate this occasion with me and my fellow prize-winners.
 
To many scholars, another presentation about the Rule of Law might feel worn in this day and age. Dare I say, especially after the lockdowns of 2020 through 2022, I think many free-thinking people view the Rule of Law as a guise for authoritarianism to cloak itself in the language of justice at best.
 
But as liberals, libertarians, freedom-fighters, and independent individuals, we must take ownership of a jurisprudence of liberty. All our opponents have developed intricate philosophies of law. I fear we might be lagging behind.
 
It is in this spirit that I have dedicated much of my own work in South Africa to advocacy around the Rule of Law.
 
Where do we start?
 
Legal scholarship has always gone above and beyond to emphasise diversity in law rather than sameness. Without meaning to be entirely vapid in my remarks, it is worth pointing out that to speak of ‘law’ in Liechtenstein, Bangladesh, South Africa, or Argentina is to speak of exactly the same phenomenon: rules that are binding, and for which violence will be used to secure compliance.
 
Law has always existed, and people have always instinctively understood law.
 
But there is an elephant in the room, and this elephant will always be there: the state. The state, in whatever form, be it an ancient tribal chief, a global government, or a technocratic cyberpunk totalitarian regime, has a tense relationship with the applicability of law. For the longest period of human history, the state has seen itself as though it is the source of legitimacy of law, and if not, simply above the law.
 
It was the classical liberal rejection of absolutism that brought about what we today know as constitutionalism, which is the idea that even the state – and perhaps especially the state – must be bound and limited by law, just like everyone else is. If the state is truly subject to law, then it is the law that rules. Where the state rules, or even where the so-called ‘people’ rule, the law does not.
 
What is the Rule of Law?
 
What, then, is the Rule of Law? This is an old question that thinkers have struggled with. But most thinkers on the Rule of Law do, I believe, agree on its ultimate character.
 
The following accurately encapsulates the essence of the Rule of Law: it is the legal institution that regulates or attempts to eliminate state arbitrariness. If you unbundle ‘state arbitrariness’ in this context, one might say ‘arbitrariness in the making, content, and application of public (that is, state) law.’
 
How does this legal institution, the Rule of Law, do this? Well, it sets requirements, but it is by no means self-enforcing, as I think all good libertarians understand. These requirements, very briefly, are that:

- The law, or official, legally recognised conduct, must be knowable. In other words, the rule that people are expected to comply with must be published, and it must be publicised. And the rule, of course, cannot be retroactive.

- The law must also be accessible. A layperson must be able easily to find, to read, and to understand the rule for themselves.

- The law must be unambiguous. It must only have one reasonably ascribable meaning.

- The law must be certain, in that it cannot be constantly changing, and it must be explicit, in that the rule may not be assumed or unstated.

- The law must be reasonable. Here things get difficult. The opposite of reasonableness is arbitrariness. So, the law must have a reason – a good reason – and justification based on something other than mere preference: evidence. And the average person – who has to comply with the law – must ultimately agree that the law is reasonable. For the law to be reasonable, it must also be proportional, meaning it should do no more, and especially no more harm, than is strictly necessary, to achieve its legitimate purpose. 

Now, I submit that without all of these requirements of the Rule of Law being met, the whole enterprise of law, of law-making, of having public law, is either partly or fully defeated, because for it to make sense, people must know the law, the law must be accessible, the law must be unambiguous, it must be certain, and it must be reasonable, otherwise we are fundamentally dealing with something other than binding law.
 
But I did say things get difficult in the realm of reasonableness, or its opposite, arbitrariness.
 
Indeed, one of Cass Sunstein’s criticisms of FA von Hayek is that Hayek had no good criterion for what ‘arbitrary’ means. When is something arbitrary, and when is it not? That is to say, what is arbitrary to me, as a liberal or libertarian, might not be arbitrary to a socialist.
 
Basic Justice
 
This is where, in my view, the notion of what I think is appropriately called ‘basic justice’ comes into the picture.
 
The requirement against arbitrariness sits at the very heart of the Rule of Law, and I do not think we can get rid of that requirement without getting rid of the Rule of Law itself. But the problem Sunstein points out is correct – deciding what truly is arbitrary is a very difficult task. Postmodernism would go so far as to tell us everything is ultimately arbitrary.
 
And that is why it comes down to agreement or consent.
 
Basic justice, then, is those things that we can reasonably say everyone – at least every lucid person of sound mind – agrees are not arbitrary and are indeed within the purview of law.
 
Very few people find themselves in agreement on everything that should be within the purview of law. For that reason, basic justice in my view encompasses a very, very short list of things. These would include, at the very least, the mala in se, being the law against murder, rape, trespass, and so forth, which I think capitalists and communists, Christians and atheists, introverts and extroverts, could agree on.
 
This is not a hard science, ladies and gentlemen, but the general rule of thumb is that when we move into more debatable areas of law, where people can have reasoned disagreements, and where each party to the disagreement has at least some good arguments on its side, we venture into the realm of the legally arbitrary. Why? Because this is where we will need to defer to the discretion of the appliers of law rather than the law itself, to come to a clear conclusion on disputes.
 
The law, then, is almost necessarily arbitrary when it attempts to give effect to the notion of substantive justice of any individual or group. Each of us requires a conception of substantive justice, but the law – public law, I must say – should steer clear of it. Because enforcing my conception of substantive justice, or that of my group, must be legally arbitrary in nature, as it is not shared.
 
Binding an atheist to Islamic law makes no sense, even if a public order or public morality argument is made. This also applies when the law forces some to not work on a Sunday. This is crucially important to many, but to make it a matter of law, and impose it on those who do not agree, is completely arbitrary and unjust.
 
If society opts to observe the strict requirements of the Rule of Law as I have spelt them out, that society would be left with a framework of basic justice. This is how the Rule of Law indirectly, but unavoidably, serves liberty.
 
Thank you.

Martin van Staden is the Head of Policy at the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.

This article was first published by DailyFriend on 22 February 2024