Democracy Versus the Rule of Law

Politicians and media commentators generally assume that “democracy” is an intrinsic good, i.e. something that is always to be desired, and valuable for its own sake. So, they say things like, “wouldn’t it be great if the protestors prevail and Egypt becomes a democracy.” Well, no. If Egypt becomes a representative democracy this will be great for political Islam and very bad for independent-minded women, gays, Christians and any other group that does not completely conform to the dictates of traditional Islam.  

   Clearly, democracies can be benign or oppressive, depending on the will of the majority. Russia and Venezuela are examples of the latter, as was the Jim Crow south.  Some pundits realize this, and substitute the “rule of law” for “democracy” when attempting to describe a stable, just polity.  Specifically, it is used as a synonym for societies that have enacted such constitutional safeguards as “due process,” “equal protection,” the separation of powers, etc.  

   But, history shows that constitutions are often ignored or suspended, and their lofty proclamations of rights have frequently proven useless against budding tyrants. This realization prompted the great political economist and theorist F.A. Hayek to elucidate a more penetrating understanding of the “rule of law.” In his view, the rule of law cannot refer to what is written in constitutions, but to those overarching societal values that ensure that such safeguards are respected in practice. 

   For Hayek, the rule of law exists only in those communities where there is an enduring political consensus that ensures that the law functions solely as a neutral framework enabling citizens to plan and conduct their affairs. It protects honest citizens against force and fraud, and otherwise leaves them alone. A classic example is our traffic code, which lays out “rules of the road” that permit us to get to our desired destinations, without dictating to us where we should travel. At the same time, it punishes drunk and reckless drivers, improving safety for all responsible motorists. 

   When the law ceases to be an indispensable “roadmap” that benefits all citizens, and instead becomes a tool for social engineering, it can then be used as a weapon by the most politically powerful elements in society. All too often it is turned against political dissidents and disfavored minorities.  Obviously, some paternalistic and redistributive government programs are very popular, particularly those that dispense benefits far out of proportion to actual contributions made by the recipients. But, those who support them implicitly accept that coercion may justly be employed against unwilling citizens in order to realize political objectives, and thereby surrender any moral basis for objecting to programs that harm them. Societal acquiescence in political coercion for economic purposes is antithetical to the political ideal that maintains the rule of law generally, and is thus inherently dangerous.  

   Hayek identifies respect for private property rights as the lynchpin of the rule of law. When the state is able to manipulate the levers of economic power, it can maintain its corrupt political control by rewarding its friends and punishing its enemies. Secure property rights prevent this, as financial winners and losers are determined in free markets and not by politicians. The exiled Russian revolutionary, Leon Trotsky, observed that Stalin was using food as a political weapon, and then (belatedly) wrote, “In a country where the sole employer is the state, this means death by slow starvation. The old principle: who does not work shall not eat, has been replaced with a new one: who does not obey shall not eat.”  

   The primacy of free markets as the means of determining economic outcomes also promotes the evolution of social attitudes, such as individual initiative and self-reliance, which underpin the rule of law. People who take responsibility for supporting themselves and their families are more likely to back private sector solutions rather than the “Great Society/War on Poverty” approach to social problems. On the other hand, the beneficiaries of government programs tend to support the activist state; few people are willing to bite the hand that feeds them. 

   The framers of our constitution were, I daresay, as well-educated and politically sophisticated a group as has ever sat together under one roof. Their desire to limit the powers of government was shaped by their familiarity with history of our mother country, and particularly the governmental abuses that led to the Glorious Revolution of 1688. Before then, the Crown tried to hold onto absolute power by abusive taxation, and by granting commercial monopolies and adopting trade policies designed to reward its political allies in exchange for a share of the spoils.  

   The founders thoroughly understood the distinction between democracy and the rule of law, and in drafting the constitution employed every stratagem and device available to them to thwart any constituency from gaining undue influence. Thus, the federal government was limited to its specifically delegated powers, with the remainder left in the individual states and with the people themselves. At the federal level, power was distributed between three branches, and a series of “checks and balances” established. 

   Nevertheless, nothing written on paper, however ingenious, can replace the social attitudes necessary for Hayek’s rule of law to endure. Sadly, over many generations now the electorate has come to depend ever more on the state to provide for its every need, including retirement benefits, healthcare, welfare, food- stamps, housing assistance, student loans, crop subsidies, bail-outs, and so on. Not surprisingly, this dependency has diminished respect for private property and free markets, and I fear we are far down Hayek’s “road to serfdom.”   

   Of course, our politicians love such spending as they see it as a means of winning elections, and voters love the illusion of getting something for nothing. But as a result of this vicious circle, what was once the world’s most productive and dynamic economy is hurtling at break-neck speed towards the disastrous tipping point when our national debt exceeds 90% of our GDP. We will in all probability get there in 2-3 years, at which point, there is a real and present danger of a debt death spiral similar to that experienced by Greece. 

   Not only have we spent what we don’t have, but we are making promises to participants in our entitlement programs and public pension plans that we can’t possibly keep. Those crazy libertarian radicals at USA Today calculated  that as of June, 2011 our leaders have promised current workers and retirees $62 trillion in benefits for which no current funding source exists, This appalling number actually gets worse each year as new employees join the workforce and qualify for benefits. 

   When it becomes apparent that we are in a debt and entitlement crisis in which bitter austerity or unacceptably high levels of inflation are the only “solutions,” there will be hell to pay. I fear that demagogues will attempt to turn one constituency against another, and even further mischief may ensue. The founders were brilliant and inventive men, but their dead hands cannot rescue us from our own cupidity.  In our case as in many others, democracy may prove to be the means by which the rule of law is destroyed. 


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