One requirement of the rule of law

There is something that, I think, Libertarians have learned or have to learn, from the current US government about the rule of law. One illustration among many was provided on March 13, when Ursula von der Leyen announced the reaction of the European Union to Trump’s 25% rates on steel and aluminum imports. (To see “EU and Canada take revenge after Donald Trump’s rates are in force” Financial timesMarch 12, 2025, including a short video of the announcement of Von der Leyen.) As president of the European Commission, the deep state arm of the EU government, she spoke with a calm voice, emphasized that the European retribution rates were equal for Trump, and that the trade war started by the latter was “bad for the consumer.” The European rates had to be approved within the EU and would enter into force on 13 April. Although the real solution for consumers would be one -sided free trade, this reaction contrasts with the excited, irregular, one -man, paving announcement on the American side. But there is more to it than a small example.

I take the rule of law as the ideal that is defended by the classic liberal tradition and in particular by Friedrich Hayek. It is made from “rules that regulate the behavior of persons to others, apply to an unknown number of future copies and the contain of prohibitions that contain the boundaries of the protected domain of all persons and organized groups”, including even agents (see Being Law, legislation and freedomP. 457 and passion). It is the ideal of a government of laws, not for men.

We learn again that the rule of law offers essential protection for individual freedom and therefore prosperity to a liberal or capitalist anarchy is achieved if this moment comes. The downfall of the rule of law is much more likely to lead to random power, which was the definition of tyranny in the classical liberal tradition.

This lesson is probably more important for Americans than for Europeans because the American revolution was unusually successful and can suggest that the rule of law can easily be re -designed if it breaks. With a few exceptions in Europe, it has repeatedly broke down recently: in the last three -quarters of a century, many countries have been ruled by autocracies, without counting the Cataclysm of the French Revolution from 1789. Every time the rule of law was recovered with great difficulties and demonstrably only partially. The establishment of the European Union was partly intended to strengthen the rule of law, notwithstanding that it is often overbeaked and over-bureaucratized. However, it can be argued that the EU has been protecting the inhabitants of its Member States for several decades against open forms of tyranny.

It was generally assumed that the rule of law in America was much stronger than in other countries. Nowadays it is demonstrable in America that the rule of law is the most threatened. Many Americans do not see this or do not imagine that the path to tyranny closes when a strong man of their own taste is in power. Despotism can happen here.

Even imperfect (but not just a smoke curtain of the law) is still preferable to open randomly with two qualifications. Firstly, the rule of law must tolerate a certain degree of fundamental civil disobedience, But of the ruled, not from the rulers. Secondly, a revolution is justified to the extent that it is necessary to abolish a tyrannical government and replace it with the rule of law, not to replace any regime with another.

How can the rule of law be stored? One necessary condition is universally recognized by the classic liberal tradition and the economic analysis of institutions: the independence and the irminatability of judges. A judicial decision or order can be appealed to a Supreme Court, but until then, An Judge can stop the wheels of the armed and powerful condition. (See Bertrand de Jouvenel’s At power.)

This is a crucial requirement, despite one Deputy Secretary of the White House that proclaims That “rogue judges undermine the will of the American people.” It is a reasonable gamble that she has never read Jean-Jacques Rosseau And don’t know what she’s talking about, but she gives us an idea of ​​the atmosphere she breathes. If or when the ‘Will of the People’, who have also invoked some higher ups in the administration against independent courts, turns against one of them, An Judge could stand between him and ‘the people’. Historical examples are Legion. If there had been independent courts, Maximilien Robespierre, a rather popular revolutionary leader against whom the crowd is now screaming, could have appealed to a judge before he was guillotinated in Paris on July 28, 1794.

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