--- begin forwarded text Date: Mon, 21 Dec 1998 12:17:05 EST Reply-To: Hayek Related Research <HAYEK-L@MAELSTROM.STJOHNS.EDU> Sender: Hayek Related Research <HAYEK-L@MAELSTROM.STJOHNS.EDU> From: Hayek-L List Host <HayekList@AOL.COM> Subject: Hayek Quote of the Week - Rule of Law To: HAYEK-L@MAELSTROM.STJOHNS.EDU 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. --- end forwarded text ----------------- 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'