Respect for the rule of law cannot simply mean a moral obligation to obey legislation. History is replete with too many examples of tyrannical legislation for that notion to pass muster. But if the rule of law does not mean obeying whatever legislators enact, what does it mean?
Murray Rothbard argued that this question must be answered by reference to ethical guidelines, which he constructed around the concepts of self-ownership and property rights. Rothbard conceptualized property rights as inalienable and absolute natural rights. Seen in that light, eminent domain legislation is unethical and unjust. The example of New York illustrates the significance of this point, as explained by the Institute for Justice:
“In New York, eminent domain gives the government the power to take your property, even if you don’t want to sell. But under the Fifth Amendment, eminent domain must be for a ‘public use,’ which traditionally meant projects like roads or bridges. Meanwhile, the government must pay the owners ‘just compensation’ for their property.
“Unfortunately, the U.S. Supreme Court gutted federal protection against unconstitutional eminent domain when it handed down its decision in Kelo v. New London in 2005. By a vote of 5-4, the Supreme Court dramatically expanded the definition of ‘public use’ to include private economic development. In other words, local governments can condemn homes and businesses and transfer them to new owners if government officials think that the new owners will produce more taxes or jobs with the land.
“As Justice Sandra Day O’Connor warned in her dissent: ‘The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.’”
South Africa has gone even further with its expropriation laws, by providing in its constitution that “public purpose” can include anti-racism, equity and protection of “vulnerable groups.”
“In terms of section 25(4)(a) of the Constitution ‘public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.’ Section 25 (8) further states that the state may take ‘legislative steps and other measures ... in order to redress the results of past racial discrimination.’”
Under proposed amendments for expropriation without compensation, just compensation would include nil compensation, meaning that nil compensation would be explicitly permitted under the constitutional provisions requiring payment of compensation. After all, the constitution does not specify any amount of payment but states simply that the amount paid must be just and equitable. The argument is that an amount of nil would in some cases be just and equitable and that “expropriation without compensation” is therefore already implicitly permitted:
“The Committee, reporting in November, concluded in favour of amendment ‘to make explicit that which is implicit’, namely that EWC is permissible (CRC, 2018: 34). EWC, it affirmed, is a justifiable objective, which is already provided for, but amendment should nonetheless be pursued.”
Any legal system which purports to protect property rights but empowers the state to extinguish property rights in the “public interest” cannot purport to uphold the rule of law, unless the rule of law is to become a meaningless idea which means “do whatever the state commands.”
In its traditional sense, the concept of the rule of law did not mean simply “obey the government.” It also reflected the ideal of individual liberty and the idea that the law should grant all individuals equal protection for their rights to liberty and property. As David Gordon has observed, “The rule of law is an ideal commanding wide respect, by no means confined to those of classical-liberal or libertarian inclinations.” It commands wide respect precisely because it transcends political and ideological divisions, reflecting the ideal that all citizens enjoy the equal protection of the law against the violation of their rights. If the rule of law requires the equal protection of citizens’ property rights, then any laws which extinguish property rights instead of protecting them is not “the rule of law” but its very antithesis.
In “The Constitution of Liberty” Friedrich Hayek draws a distinction between what is legal, in the sense that it is permitted by the law, and the rule of law as a constitutional principle which limits the powers of the state, including its power to enact legislation that undermines liberty and justice:
“[The rule of law] is a doctrine concerning what the law ought to be, concerning the general attributes that particular laws should possess. This is important because today the conception of the rule of law is sometimes confused with the requirement of mere legality in all government action. The rule of law, of course, presupposes complete legality, but this is not enough: if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law. The rule of law, therefore, is also more than constitutionalism: it requires that all laws conform to certain principles.”
Many terrible things can therefore be legal — slavery was legal for many centuries, and racial segregation was legal in many jurisdictions. Abortion and euthanasia, which many people also hold to be abhorrent, are also legal in many jurisdictions. Current race-based laws, described as “equity,” are also legal in that they are permitted by various equality, human rights and civil rights laws. But as Hayek observed, the fact that what the state permits is completely legal does not mean it conforms to the rule of law. Hayek saw the rule of law as “a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal ... a common ideal shared and unquestioningly accepted by the majority.”
Statutory interventions that undermine property rights reveal a painful truth — Hayek’s notion of a “political ideal” shared by the majority is breaking down. Many in the West no longer uphold the sanctity of property rights reflected in the English or early American common law. Instead, they embrace utilitarian precepts that accord significant weight to egalitarian ideals. In a cost-benefit analysis of seizing people’s homes to house immigrants, they would give significant weight to diversity, inclusion and equity as a benefit of such expropriation. Yet even in the face of these pressures — indeed, especially when faced with these challenges — it is important to uphold the rule of law in its traditional sense of an ideal requiring the protection of life, liberty and property.
