6 Planning and the Rule of Law

The Rule of Law is that the government is bound in all its actions by rules fixed and announced beforehand- rules which make it possible to foresee how the authority will use its coercive power in given circumstances and to plan one’s individual affairs on the basis of this knowledge.  

The essential point is that the ways in which the government can yield its coercive power is reduced as much as possible, so that individuals can pursue their ends and desires certain that the powers of government won’t be used deliberately to frustrate his desires.

The direction of economic activity by the central government will necessarily do away with the rule of law, since laws will need to be made on the fly to suit the needs of a particular situation as it arises.

The planning authority can’t confine itself to providing opportunities for unknown people to act as they like. It must provide for the actual needs of people as they arise and then choose deliberately between the needs of differing groups. There is always a balancing act between the wants of various groups, and central planning requires that someone decide whose interests are more important.

The general principle is easy enough; the difference is between posting signs on the side of the highway that tell people generally how to behave, and ordering individual motorists which road to take.

Formal rules/laws are expected to be useful for yet unknown people, for purposes which those people will decide. They aren’t expected to produce a particular end for a particular people.

But in our passion for conscious control, it seems to us that leaving the ends undefined is no virtue. Yet this consideration is the rationale of the liberal principle of the rule of law. The argument is twofold.

The first is economic.

The state should confine itself to establishing general rules and allow freedom to individuals because only those individuals will know the particular circumstances of the time and place and adapt themselves to them.

If the State were to attempt to direct the individual’s actions in order to achieve a particular end, its action would have to be decided on the basis of the full circumstances of the moment, and thus be unpredictable. It could only be produced at the moment.  

The second argument is moral.

If the state is to precisely foresee the incidence of its actions, it can leave those affected no choice. They would have to utterly control everything in order to be sure to arrive at a place where they could act on the circumstances they planned for. But if we want to create opportunities for all, particular circumstances and results can’t be foreseen.

General rules, as distinguished from specific orders, must be intended to operate in circumstances that can’t be foreseen in detail, and therefore, their effect on particular people can’t be foreseen. This is antithetical to planning as we are speaking of planning.

A result of the rule of law is that formal equality before the law is incompatible with any activity of the government deliberately aiming at material or substantive equality of different people, and any policy aiming at an ideal of distributive justice must lead to the destruction of the rule of law.

The Rule of Law produces economic inequality, that’s true. But the only claim is that this inequality is not designed to affect particular people in a particular way.

The conflict between formal equality before the law and attempts to realize substantive justice and equality, accounts for the abuse of the concept of privilege. If, for example, as happened in the past, that landed property were reserved only to members of the nobility, or, as in our time, rights to sell particular things to people are designated by authority, then that is privilege. But to call private property as such, which all can acquire under the same rules, privilege, because some succeed in acquiring it while others don’t, deprives the word privilege of its meaning.

Inaction of the state

This is another belief that those who are against the liberal system charge. The unpredictability of particular effects is the distinguishing characteristics of the formal laws of a liberal system. The question of whether the state should act or not is a false distinction. Of course every state must act and every action of the state interferes with something or other. That’s not the point. The important question is whether the individual can foresee the action of the state and make use of this knowledge as a datum of forming a plan.

The state controlling weights and measures in an action.

The state standing by and permitting violence by one group against another is inaction. Yet it is the first case that observes liberal principles and the second that doesn’t.

The Rule of Law is one of the greatest achievements of the liberal age, both as a safeguard and a legal embodiment of freedom.

But there is another way the rule of law is misunderstood. Obtaining power through constitutional measures doesn’t guarantee the rule of law. Hitler came to power through legal means, but that doesn’t mean the rule of law is in place in Germany today. Because someone has full legal authority to act on laws arbitrarily passed doesn’t rise to the rule of law.

The rule of law’s recognized limitations to the powers of legislation imply the recognition of the inalienable right of the individual, inviolable rights of man.

Central economic planning cannot work within the rule of law. The rule of law implies limits to the scope of legislation, and central planning demands the need to pass particular legislation meant to privilege one group over another.

This is why most socialists have attacked the metaphysical idea of individual rights and insisted that in a rationally ordered world, there would be no individual rights, only individual duties.