“NOTHING distinguishes more clearly a free country from a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand.” – Frederich Hayek
To simply research the subject title, “Rule of Law,” is somewhat impossible. Delving into the myriad discussions of what this term actually means gives way to greater confusion rather than clarity. The most common definitions lend themselves to determining what it is NOT rather than what it is. For this start page, we will simply review the issue lightly, as it relates to republican governance, and leave you with links for further study. The basic concept is that we are a Nation of Laws, not of Rulers. One of the most useful sites we have found regarding the various concepts underlying our form of government is the home site for the National Center for Constitutional Studies.
In the conservative/American mindset, trained mostly by the words of some of our founders in our Constitution and Declaration of Independence, we perceive the Law as an expression mainly of the Hayek quote above. While the sentiment that our laws are “the laws which keep us free” speaks to the libertarian nature of our founding documents (in that the law is designed to keep government in check, rather than the people,) this sentiment has slowly given way to “the laws which keep some of us free and others in check.” Lost through this transition is the purpose of our laws, which give way to arbitrary definitions by even the highest court justices and a subsequent abuse of the law by those who would turn laws to their favor. This is the antithesis of what “Rule of Law” is designed to protect.
A fair look at the republican form of government is found at The Founder’s Constitution. For the best study of Constitutional Law and the models upon which our country was built, we recommend Skousen’s The Making of America . It is a very comprehensive (and readable!) study of our form of government.
Most confusion on the topic of law, as related to a discussion of conservatism/liberalism, surrounds what sort of law you are talking about. In America, there is a distinct difference between the purposes and execution of federal law (Constitution), common law, state law, etc. The discussion is vague. We hear that “most laws are to be made at the community level” but we don’t really discuss why, or which subjects, like personal values, are best kept at home. For conservatives, the purpose of common law and decentralized decision making are rooted in maintaining the authority, diversity, and defense of the family and community. This contrasts with a homogenization of society under national/federal rulemaking. The classical liberals are usually best at describing the scientific analysis of why this sort of government works so well without the attendant moral implications. Combining the classical liberal (libertarian) study of the purpose of federalism along with some reading of the moral and idealistic reasons for such governance is the best way to gain a ‘big picture’ view of why true Constitutional law with its inherant limitations on the power of Federal government works for free and prosperous peoples, and why it is such a distinctly American ideal. The video on this site, “Overview of America” describes many of these concepts beautifully and simply.
Reading on this topic is quite heavy and it is fairly easy to devolve into philosophical meanderings rather than fixing on the topic of what is the republican ideal, how does it work, and why does it work. For the best, common language and impeccably researched guide to republicanism, our laws, and our history, we also recommend the study guides offered by The National Center for Constitutional Studies, including the Making of America workbook and The 5000 Year Leap. The Center also has an AMAZING array of audio lessons – so you can listen while doing something else. Handy!
*A note for the secular set: There is much discussion of religion and morality in the conservative view, and perhaps the libertarian analysis would be more comfortable for some. There is much to be gained from discussing the ideal of morality – certainly the ideal of libertarian freedom and justice is a moral one as well as scientific, as is often illustrated by Murray Rothbard. We encourage even those who reject or abstain from religious studies to at least consider the implications of religious matters in the formation of our governing ideals, if for no other reason than to understand religion’s role in history and in the formation of our political systems. (The type of government ours most closely resembles is the biblical “wards and families” model.) Certainly, we should all be concerned that civics is not taught sufficiently or accurately in public schools – and part of the reason for this is that our founders talked about God a lot, which is a big no-no these days. Whether a believer or not, the role of religion in our history is fact and should at least be studied, if not appreciated.
For More Information on the Role of Law in Republican Governments:
Murray Rothbard – With his usual cheer, Murray breaks down some concepts in libertarian thought on law.
Anthony Gregory – Tony tries to get a grip on the misunderstanding of libertarians as anarchists, and defines some libertarian thought on law in the process.
Heritage Foundation - Plenty of resources on modern conservative thought and action are found here.
Human Events - Features such notables as Phyllis Schlafly, Walter Williams and John Stossel.
More: Have a favorite link on the Law or the Constitution? Share it!
