What Rule of Law?

So –called “Rule of Law” is theoretically impossible in the presence of a central government. Let us begin with definitions.

Rule of Law means that no one is above the law. It means a body of law that has two properties:

1. The law applies equally to everyone
2. The law constrains the rulers, as well as the ruled.

John Adams, in drafting the Constitution for the Commonwealth of Massachusetts, envisioned “ . . .a government of laws, not of men”. Can a government actually embody Rule of Law? Consider the definition of a government:

Government is a territorial monopolist of jurisdiction and taxation.

19th century economist John C. Calhoun was the first to point out a fundamental fact about taxation: Imposing any sort of tax automatically creates two distinct classes of citizens – net tax payers, and net tax consumers. No matter what sort of tax it is – income tax, sales tax, property tax, death tax, or any other – there will be one group of people who, on balance, pay the tax, and another group who, on balance, consume the benefit of the tax.

All government workers, for example, derive their subsistence solely from taxes. Any tax paid by these people is a complete statistical fiction. Government salaries come out of the general fund. Earning a government salary of $100,000 while paying $25,000 in tax is exactly the same as earning $75,000 and paying no tax. Government officials, bureaucrats, government contractors, military personnel, many “non-profit” organizations and others qualify as net tax consumers. All are in a fundamentally antagonistic position against the taxpayers.

We could imagine a system in which taxes and government spending were somehow “fair”, that is everyone received benefits in exact proportion to the tax they paid. But then what a colossal waste of effort the whole process would be! Collecting taxes and creating government spending programs, just so that everyone could end up right where they were to begin with?! Absurd. No, the entire point of taxation is to forcibly take wealth away from some and give it to others.

Taxing and spending cannot possibly apply equally to everyone. Taxes must be collected. The United States Constitution authorizes Congress to “lay and collect” taxes. There must be a special class of citizens called “tax collectors” who are empowered to take money from others, using force if need be. How then can the law apply equally to the tax collector as to the taxpayer? It cannot.

Now consider the government’s monopoly of jurisdiction. This means that whenever two parties have a dispute, the government is the final decision-maker about who wins and who loses. Most importantly, this includes disputes involving the government itself. Obviously the government will tend to find in its own favor. It’s hardly possible that any body of law could be applied equally to all people, when one group of people (the government) can be both litigant and judge.

Hans-Hermann Hoppe, in his lecture “Prospects for a 2nd American Revolution”, warns:

“Rather than a protector and a judge, a monopolist will increasingly become a protection racketeer, a destroyer and invader of the people and property he was supposed to protect, as well as a war-monger and an imperialist". 

                                -Hans-Hermann Hoppe

What about “Checks and Balances”? Only a competitive free market can provide real checks and balances. Customers reward good service and punish bad with their purchasing decisions. What mechanism exists to check and balance the government monopoly? None that I can see.

The famous “Separation of Powers” is a non-starter. On paper, government power is divided into three branches, “Executive”, “Legislative” and “Judicial”. So what? This is simply division of labor. Legislators write laws, courts interpret them, and executives enforce them. These people and these agencies typically share a set a mutual self-interest.

Suppose the issue is whether or not to raise taxes. All of the people in all three branches of government derive all of their income from taxation. We could predict that legislators would pass laws raising taxes, executives would sign such laws, and judges would interpret such laws as being Constitutional. In practice, this is what has happened. Government revenue in the U.S. is at an all time high after more than two centuries of “checks and balances”.

The same goes for expansion of government power in general. All three branches of government are in favor of it. Operating under a Constitution that allegedly places limits on power, the U.S. government has involved itself in virtually every aspect of private affairs, virtually every industry, and established permanent military bases in almost every corner of the globe.

Minarchist libertarians are fond of advocating a return to strict Constitutional limits on power. What limits? I’ve just had a fresh read of the U.S. Constitution. I’m inclined to agree with Robert LeFevre, that it was designed as an instrument of limit-less power. Lay and collect taxes? Promote general welfare? Provide for common defense? Ensure domestic tranquility? Regulate interstate commerce? Go into debt? Declare war? Where on Earth is any limitation? I see none, but the point is moot. Either the framers intended an all powerful government in the first place, or they didn’t. If they didn’t, then their Constitution was an epic failure at keeping the government reigned in.

Would a different Constitution be better? I think not, and this is my point. It is fundamentally impossible to devise a single set of laws that constrain government officials as well as the general citizenry. Government officials always play by a different set of rules. Always. They must, otherwise there is no taxation, no judicial monopoly, no government, as currently understood.

And so, for centuries, we have seen the predictable results play out:

• Government passes laws against theft, then exempts itself and calls it “taxation”.

• Government passes laws against mass murder, then exempts itself and calls it “foreign policy”.

• Government passes laws against counterfeiting, then exempts itself and calls it “monetary policy”.

• Government passes laws against slavery, then exempts itself and calls it “conscription”.

• Government passes laws against eavesdropping, then exempts itself and calls it “counter-terrorism”.

Etc. Etc. Etc.

Rule of Law can only exist in a free market, in the absence of a central government. Competing agencies will deliver a much better quality of justice and defense services, for the same economic reasons that competition provides better quality of everything. Customers buy only what they choose. Producers who provide good products and services at a good price are rewarded with profit. Producers who do a bad job, suffer losses. 

Read “Man, Economy and State” by Murray Rothbard, available for free on the web. Building upon Ludwig von Mises’ “Human Action”, Rothbard not only gives a complete theory of the unhampered free market, but goes on to deliver a complete economic theory of the State. Rothbard and the rest of the Austrian school of economics have given a rich literature proving the viability of the free market to deliver all goods and services, including protection, defense, and dispute resolution.

Abolish your government. According to the Declaration of Independence, it is not only your right, it is your duty to abolish your government when it has become destructive of your rights. Abolishing government begins between your ears. Stop believing in it. Start understanding it for what it is: An institutionalized criminal gang.

Read “No Treason – The Constitution of No Authority” by Lysander Spooner. In the mid-19th century, Spooner advanced an iron-clad argument. The Constitution appears to be a contract. It simply does not apply to anyone who did not sign it. Did you sign it? Neither did I. The “founders” of the United States had no more right to declare you a “citizen” and oblige you to pay tribute and fight wars than does your next door neighbor.

While there is broad disagreement about what the size and scope of government should be, statists unanimously agree that at minimum, society requires a government to provide a system of justice and protection. But government cannot do this, even in theory. Justice and protection require Rule of Law, and Rule of Law is impossible under government.

A second American revolution is due. What form it should take is a great question. I suggest contemplating mass secession into independent towns, neighborhoods, and individuals. This does not mean abandoning society, quite the opposite. Your government is not your society, it is a parasite upon your society. Throwing off tyrannical government will allow civil society to flourish and prosper as never before.