As a long time libertarian, when I think of (and support) the "rule of law", I am not considering the merits of the laws on the books; I am supporting the concept that being held to account to laws on the books is preferable to being subject to the whims of individuals making up the laws as they go.
The recent Supreme Court ruling regarding the EPA limiting its powers and pushing them back to the legislature is a good example of the rule of law. The EPA making rules that are enforced as though they were a body empowered to pass legislation was outside the rule of law, specifically outside the law of the Constitution. The EPA wasn't empowered by the Constitution or subsequent legislation to make or enforce rules about the balance of energy production types, but it was doing it anyway, breaking the law that determines how rule making and enforcement is supposed to work.
Now, if the Supreme Court ruling is ignored, that demonstrates that the rule of law is not in effect, that is, government agents will be breaking the rules but others will fail to punish them (Klein's points 2ii and 2iii).
However, if the legislature passes a law saying "We are totally giving the EPA the power to do this" and the EPA starts doing it, that is within the rule of law because the legislature has the power to do that according to the rules. (Well... according to how we interpret the rules now, for the most part. People can and do argue that the administrative state itself is unconstitutional.)
At any rate, the rule of law is most evident when the law is being enforced against the government itself, when we see that that the rules matter both for those who break them and those who make them.
You disagree with Bryan’s main point, saying: “Generally speaking, in a country like the United States, for the ordinary citizen, a government law ought to bring with it a certain authority. The mere fact of legality ought to lead one, when consulting the scales, to add something in obligation, beyond common prudence, to following the law.”
But what is your argument? What, exactly, are the features of the United States that give its laws authority, over and above what they have intrinsically, so that a sub-optimal law, which had better be replaced by an alternative, may still be one that the individual has compelling reason to obey, even if he can get away with violating it? The United States has many illiberal laws: what reason do we have to obey them, other than fear of getting caught and punished? Is it that such disobedience might bring down the government, and plunge us into some even less satisfactory political condition? I am skeptical that this will often be a serious consideration; on the contrary, resistance to illiberal laws might push the government towards confining itself to liberal ones.
As a long time libertarian, when I think of (and support) the "rule of law", I am not considering the merits of the laws on the books; I am supporting the concept that being held to account to laws on the books is preferable to being subject to the whims of individuals making up the laws as they go.
A good post, as usual.
The recent Supreme Court ruling regarding the EPA limiting its powers and pushing them back to the legislature is a good example of the rule of law. The EPA making rules that are enforced as though they were a body empowered to pass legislation was outside the rule of law, specifically outside the law of the Constitution. The EPA wasn't empowered by the Constitution or subsequent legislation to make or enforce rules about the balance of energy production types, but it was doing it anyway, breaking the law that determines how rule making and enforcement is supposed to work.
Now, if the Supreme Court ruling is ignored, that demonstrates that the rule of law is not in effect, that is, government agents will be breaking the rules but others will fail to punish them (Klein's points 2ii and 2iii).
However, if the legislature passes a law saying "We are totally giving the EPA the power to do this" and the EPA starts doing it, that is within the rule of law because the legislature has the power to do that according to the rules. (Well... according to how we interpret the rules now, for the most part. People can and do argue that the administrative state itself is unconstitutional.)
At any rate, the rule of law is most evident when the law is being enforced against the government itself, when we see that that the rules matter both for those who break them and those who make them.
The rule of law is what makes civilization possible. Otherwise we are each part of a tribe or gang using violence to enforce our claims of justice.
You disagree with Bryan’s main point, saying: “Generally speaking, in a country like the United States, for the ordinary citizen, a government law ought to bring with it a certain authority. The mere fact of legality ought to lead one, when consulting the scales, to add something in obligation, beyond common prudence, to following the law.”
But what is your argument? What, exactly, are the features of the United States that give its laws authority, over and above what they have intrinsically, so that a sub-optimal law, which had better be replaced by an alternative, may still be one that the individual has compelling reason to obey, even if he can get away with violating it? The United States has many illiberal laws: what reason do we have to obey them, other than fear of getting caught and punished? Is it that such disobedience might bring down the government, and plunge us into some even less satisfactory political condition? I am skeptical that this will often be a serious consideration; on the contrary, resistance to illiberal laws might push the government towards confining itself to liberal ones.