Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

03/23/2010 (6:12 pm)

Bureaucratic Privilege and the Rule of Law

Charles Kessler makes an interesting distinction between law and privilege in his March 10 editorial at RealClearPolitics.com entitled The Tea Party Spirit. Invoking Locke’s definition of law, he observes that the health care reform act is not really a law at all, but the empowerment of bureaucrats to make arbitrary decisions. According to Kessler, this utterly defeats the rule of law, and constitutes the very definition of despotism.


When our founders thought about law, they often thought along the lines of John Locke, who described law as a community’s “settled standing rules, indifferent, and the same to all parties,” emphasizing that to be legitimate a statute must be “received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies” between citizens.

This phonebook-sized law that would control a sixth of the U.S. economy cannot be a law by that definition. If you rummage through the text of, say, the House of Representatives’ version of the bill, you find scores of places where power is delegated to administrative agencies and special boards, which are charged to fill the gaps in the written legislation by promulgating thousands, if not tens of thousands, of new pages of regulations that will then be applied to individual cases. Voters sometimes complain that legislators don’t read the laws they enact. Why would they, in this case? You could read this leviathan until your eyeballs popped out and still not find any “settled, standing rules” or a meaning that is “indifferent, and the same to all parties.”

In fact, that’s the point of such promiscuous laws. They operate not by setting up fences to protect each man’s liberty. They start not from equal rights but from equal (and often unequal) privileges, the favors or benefits that government may bestow on or withhold from its clients. The whole point is to empower government officials, usually unelected and unaccountable bureaucrats, to bless or curse your petitions as they see fit, guided, of course, by their expertness in a law so vast, so intricate, and so capricious that it could justify a hundred different outcomes in the same case. Faster than one might think, a government of equal laws turns into a regime of arbitrary privileges.

A “privilege” is literally a private law. When law ceases to be a common “standard of right and wrong” and a “common measure to decide all controversies,” then the rule of law ceases to be republican and becomes despotic.

That’s the core of it, but he also makes a nifty comparison between the proximate cause of the original Tea Party in Boston and the modern movement that goes by the same name. It’s worth a look.

Hat tip goes to PowerLineBlog.

« « Repeal Health Care Reform, Day 1 | Main | A Nation of Philistines » »


March 24, 2010 @ 6:54 am #

In his 3-volume treatise, Law, Legislation, and Liberty, F.A. Hayek wrote the same:

Laws versus Directions

To the founders of constitutionalism the term “Law” had had a very precise narrow meaning. Only from limiting government by law in this sense was the protection of individual liberty expected. The philosophers of law in the nineteenth century finally defined it as rules regulating the conduct of persons towards others, applicable to an unknown number of future instances and containing prohibitions delimiting (but of course not specifying) the boundaries of the protected domain of all persons and organized groups…

Law was meant to prevent unjust conduct. Justice referred to principles equally applicable to all and was contrasted to all specific commands or privileges referring to particular individuals and groups. But who believes today as James Madison could two hundred years ago, that the House of Representatives would be unable to make “law which will not have its full operation on themselves and their friends, as well as the great mass of society.”

What happened with the apparent victory of the democratic ideal was that the power of laying down laws and the governmental power of issuing directions were placed into the hands of the same assemblies. The effect of this was necessarily that the supreme governmental authority became free to give itself currently whatever laws helped it best to achieve the particular purpose of the moment. But that necessarily meant the end of the principle of government under the law…unlimited government.

It also invalidated the original belief that a democracy, because it had to obey the majority, could only do what was in the general interest… Such a body, which does not owe its authority to demonstrating its belief in the justice of its decisions by committing itself to general rules, is constantly under the necessity of rewarding the support by the different groups by conceding special advantages. The “political necessities” of contemporary democracy are far from all being demanded by the majority!

The result of this development was not merely that government was no longer under the law. It also brought it about that the concept of law itself lost its meaning. The so-called legislature was no longer (as John Locke had thought is should be) confined to giving laws in the sense of general rules. *Everything* the “legislature” resolved came to be called “law”, and it was no longer called legislature because it gave laws, but “laws” became the name for everything which emanated from the “legislature”. The hallowed term “law” thus lost all its old meaning, and it became the name for the commands of what the fathers of constitutionalism would have called arbitrary government. Government became the main business of the “legislature” and legislation subsidiary to it.

The term “arbitrary” no less lost its classical meaning. The word had meant “rule-less” or determined by particular will rather than according to recognized rules…

An omnipotent sovereign parliament, not confined to laying down general rules, means that we have an arbitrary government. What is worse, a government which cannot, even if it wished, obey any principles, but must maintain itself by handing out favours to particular groups. It must buy its authority by discrimination…

March 24, 2010 @ 9:55 am #


Can we take it that your entire comment, aside from the introductory line, was in the words of F.A. Hayek?

March 24, 2010 @ 2:56 pm #

Yet another miserable layer to this miserable legislation.

The more complex the law, and the less comprehensible, the greater the power of the government who enforces the law. They are the ones who interpret it, who decide how flexible it is and in which circumstances, and who decide which parties shall be bestowed with harsh or favorable treatment under their interpretation of the law.

Is everyone comfortable with Obama or Nancy Pelosi’s take (or more likely, some 27 year old Democrat apparatchik who owes his livelihood to them and still has a “Buck Fush” bumper sticker on his car) on how the legislation should be applied? On who gets what benefits and munificence from their royal majesties and highnesses?

April 6, 2010 @ 12:31 pm #

[...] objected that the Obama health care regime constitutes tyranny, and is not legitimate law. I wrote earlier that by John Locke’s definition of law, health care reform (”HCR” in this [...]

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