F. A. Hayek,“Decline of The Rule of Law, 2” (pdf) May 4, 1953, The Freeman, pp. 561-563. Here’s the complete text in html:
As the establishment of the Rule of Law in England was the outcome of the slow growth of public opinion, the result was neither systematic nor consistent. The theorizing about it was mainly left to foreigners who, in explaining English institutions to their compatriots, had to try to make explicit and to give the appearance of order to a set of seemingly irrational traditions which yet mysteriously secured to the Englishman a degree of liberty scarcely known on the Continent.
These efforts to embody into a definite program for reform what had been the result of historical growth at the same time could not but show that the English development had remained curiously incomplete. That English law should never have drawn such obvious conclusions from the general principle as formally to recognize the principle nulla poena sine lege, or to give to the citizen an effective remedy against wrongs done him by the state (as distinguished from its individual agents), or that English constitutional development should not have led to the provision of any built-in safeguards against the infringement of the Rule of Law by routine legislation, seemed curious anomalies to the Continental lawyers who wished to imitate the British model.
The demand for the establishment of the Rule of Law in the Continental countries also became to some extent the conscious aim of a political movement, which had never been the case in England. Indeed, for a time in France and for a somewhat longer period in Germany, this demand was the very heart of the liberal program. In France it reached its height during the July monarchy when Louis Philippe himself proclaimed it as a basic principle of his reign: “Liberty consists only in the rule of laws.” But neither the reign of Napoleon III nor the Third Republic provided a favorable atmosphere for the further growth of this traduion. And although France made some important contributions in adapting the English principle to a very different governmental structure, it was in Germany that the theoretical development was carried furthest. In the end it was the German conception of the Rechtsstaat which not only guided the liberal movements on the Continent but became characteristic of the European governmental systems as they exislted until 1914.
This Continental development is very instructive because there the efforts to establish the Rule of Law met from the very beginning conditions which arose in England only much later — the existence of a highly developed central administrative apparatus. This had grown up unfettered by the restrictions which the Rule of Law places on the discretionary use of coercion. Since these countries were not willing to dispense with its machinery, it was clear that the main problem was how to subject the administrative power to judicial control. It is a matter of comparative detail that in fact separate administrative courts were created to enforce the elaborate system evolved to restrain the administrative agencies. The main point is that the relations between these agencies and the citizen were systematically subjected to legal rules ultimately to be applied by a court of law. The German lawyers indeed, and with justice, regarded the creation of administrative courts as the crowning achievement of their efforts toward the Rechtsstaat. There could hardly have been a more grotesque and more harmful misjudgment of the Continental position by an eminent lawyer than A. V. Dicey’s well-known contention that the existence of a distinct administrative law was in conflict with the Rule of Law.
Limits to Coercion
The real flaw of the Continental system, which English observers sensed but did not understand, lay elsewhere. The great misfortune was that the completion of the Continental development turned on a point which to the general public inevitably appeared merely a minor legal technicality. To guide all administrative coercion by rigid rules of law was a task which could have been solved only after long experience. If the existing administrative agencies were to continue their functions, it was evidently necessary to allow them for a time certain limited spheres within which they could employ their coercive powers according to their discretion. With respect to this field the administrative courts were therefore given power to decide, not whether the action taken by an administrative agency was such as was prescribed by the law, but merely whether it had acted within the limits of its discretion. This provision proved to be the loophole through which, in Germany and France, the modern administrative state could grow up and progressively undermine the principle of the Rechtsstaat.
It cannot be maintained that this was an inevitable development. If the Rule of Law had been strictly observed, this might well have caused what David Hume had called “some inconveniences,” and might even substantially have delayed some desirable developments. Although the authorities must undoubtedly be given some discretion for such decisions as to destroy an owner’s cattle in order to stop the spreading of a contagious disease, to tear down houses to prevent the spreading of tire, or to enforce safety regulations for buildings, this need not be a discretion exempt from judicial review. The judge may want expert opinion to decide whether the particular measures were necessary or reasonable. There ought to be the further safeguard that the owners affected by such decision are entitled to full compensation for the sacrifice they are required to make in the interest of the community.
The important point is that the decision is derived from a general rule and not from particular preferences which the policy of the government follows at the moment. The machinery of government, so far as it uses coercion, still serves general and timeless purposes, not particular ends. It makes no distinction between particular people. The discretion conferred is a limited discretion in the sense that the agent is to carry out the sense of a general rule. That this rule cannot be made wholly explicit or precise is the result of human imperfection. That it is in principle, however, still a matter of applying a general rule is shown by the fact that an independent and impartial judge, who in no way represents the policy of the government of the day, will be able to decide whether the action was or was not in accordance with the law.
No Permanent Achievement
The suspicion with which Dicey and other English and American lawyers viewed the Continental position was thus not unjustified, even though they had misunderstood the causes of the state of affairs which existed there. It was not the existence of an administrative law and of administrative courts which was in conflict with the Rule of Law, but the fact that the principle underlying these institutions had not been carried through to its conclusion. Even at the time when, in the later part of the last century, the ideal of the Rechtsstaat had gained its greatest influence, the more deliberate efforts made on the Continent had not really succeeded in putting it into actual practice as fully as had been the case in England. There still remained there, as an American observer (A. B. Lowell) then described it, much of the kind of power which “most Anglo-Saxons feel … is in its nature arbitrary land ought not to be extended further than is absolutely necessary.” And before the principle of the Rechtsstaat was completely realized and the remnants of the police state finally driven out, that old form of government began to reassert itself under the new name of Welfare State.
At the beginning of our century, the establishment of the Rule of Law appeared to most people one of the permanent achievements of Western civilization. Yet the process by which this tradition has been slowly undermined and eventually destroyed had even then been underway for nearly a generation. And today it is doubtful whether there is anywhere in Europe a man who can still boast that he need merely keep within the law to be wholly independent, in earning his livelihood, from the discretionary powers of arbitrary authority.
The attack on the principles of the Rule of Law was part of the general movement away from liberalism which began about 1870. It came almost entirely from the intellectual leaders of the socialist movement. They directed their criticism against practically everyone of the principles which together make up the Rule of Law. But initially it was aimed mainly against the ideal of equality before the law. The socialists understood that if the state was to correct the unequal results which in a free society different gifts and different luck would bring to different people, these had to be treated unequally. As one of the most eminent legal theorists of Continental socialism, Anton Menger, explained lin his Civil Law and the Propertyless Classes (1890):
By treating perfectly equally all citizens, without regard to their personal qualities and economic positions, and admitting unlimited competition between them, it was brought about that the production of goods was increased without limit, but also the poor and weak had only a small share in that increased output. The new economic and social legislation attempts therefore to protect the weak against the strong and to secure for them a moderate share in the good things of life. We know today that there is no greater injustice than to treat as equal what is in fact unequal.
A few years later, Anatole France was to give wide circulation to the similar ideas of his French socialist friends in the much quoted gibe about “the majestic equality of the laws, which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, to steal bread.” Little did the countless well-meaning persons who have since repeated this phrase realize that they were giving currency to one of the cleverest attacks on the fundamental principles of liberal society.
The systematic campaign which during the last sixty years has been conducted against all the constituent parts of the tradition of the Rule of Law mostly took the form of alleging that the particular principle in question had never really been in force, that it was impossible or impracticable to
achieve it, that it had no definite meaning, and, in the end, that it was not even desirable. It may well be true, of course, that none of these ideals can ever be completely realized. But, if it is generally held that the law ought to be certain, that legislation and jurisdiction ought to be separate functions, that the exercise of discretion in the use of coercive powers should be strictly limited and always subject to judicial control, etc., these ideals will be achieved to a high degree. Once they are represented as illusions and people cease to strive for their realization, their practieal influence is bound to vanish rapidly. And this is precisely what has happened.
The attacks against those features of the Rule of Law were directly determined by the recognition that to obseve them would prevent an effective control of economic life by the state. The economic planning which was to be the socialist means to economic justice would be impossible unless the state was able to direct people and their possessions to whatever task the exigencies of the moment seemed to require. This, of course, is the very opposite of the Rule of Law.
Concept of Justice Abandoned
At the same time, another and perhaps even more fundamental process helped to speed up that development. Jurisprudence abandoned all concern with those metalegal criteria by which the justice of a given law can alone be determined. For legal positivism the concrete will of the majority on a particular issue became the only criterion of justice applicable in a democracy. On this basis it became impossible even to argue about – or to persuade anybody of – the justice or injustice of a law. To the lawyer who regards himself as a mere technician intent upon implementing the popular
will, there can be no problem beyond what is in fact the law. To him the question whether a law conforms to general principles of justice is simply meaningless. The concept of the Rechtsstaat, which originally had implied certain requirements about the character of the laws, thus came to mean no more than that everything the government did must be authorized by a law-even if only in the sense that the law said that the government could do as it pleased.
Years before Hitler came to power German legal scholars had pointed out that this complete emptying of the concept of the Rechtsstaat had reached a point where what remained no longer formed an obstacle to the creation of a totalitarian regime. Today it is widely recognized in Germany that this is exactly where that development led. But if there is now a healthy reaction under way in German legal thinking, the state of British discussion on this crucial problem seems to be very much where it was in pre-Hitler Germany. The Rule of Law is generally represented as either meaningless or requiring no more than legality of all government action. According to Sir Ivor Jennings, the Rule of Law in its original sense, “is a rule of action for Whigs and may be ignored by others.” In its modern sense, he believes, it “is either common to all nations or does not exist.” In Professor W. A. Robson’s opinion it is possible to “distinguish ‘policy’ from ‘law’ only in theory” and
“it is a misuse of language to say that an issue is ‘nonjusticiable’ merely because the adjudicating authority is free to determine the matter by the light of an unfettered discretion; and equally incorrect to say that an issue is ‘justiciable’ when there happens to be a clear rule of law available to be applied to it.” Professor W. Friedmann informs us that in Britain “the Rule of Law is whatever Parliament, as the supreme lawgiver, makes it” and that therefore, “the incompatibility of planning with the Rule of Law is a myth sustainable only by prejudice or ignorance.” Yet another member of the same group even went so far as to assert that the Rule of Law would still be in operation if the majority voted a dictator, say Hitler, into power: “the majortity might be unwise, and it might be wicked, but the Rule of Law would prevail. For in a democracy right is what the majority make it to be.”
In one of the most recent treatises on English jurisprudence it is contended that in the sense in which the Rule of Law has been represented in the present discussion, it “would strictly require the reversal of legislative measures which all democratic legislatures have found essential in the last half century.” That may well be. But would those legislatures have regarded it as essential to pass those measures in this particular form if they had understood that it meant the destruction of what for centuries, at home and abroad, had been regarded as the essence of British liberty? Was it really essential for social improvement that law after law should have given ministers powers for “prescribing what under this Act has to be prescribed”? About one thing there can be no doubt: this is essential to the progress of socialism.