tonysc

I was reading Hayek's The Constitution of Liberty, and he makes the distinction between 'legislation' and what was called 'law' or, putting it into the bigger framework, the 'Rule of Law.'

When you really read what he's saying, the problem we have today and what the quote above talks about, is that what the Rule of Law refers to is not the regime of arbitrary and capricious 'legislation', legislation that some group of people pass to do or force you to do something but that has little to do with the concept of the concept called 'Law'.

In fact, he makes the point that what we have today is nothing like the old meanings of what the Rule of Law is. In other words, it looks like we may need to go back to first principles and get some better understand and agreement around what Law and the Rule of Law is or... we're just talking past each other.

aramandai

A simple example would be whether speed limits are being used for our protection or as a voluntary tax to finance the state. Since my vehicle does not have a limiter preventing it from going over 100 mph then I would present that speed limits are to generate taxes. The way the law is enforced also makes it obvious.

tonysc

IIRC, he and the original discussions around the Rule of Law, viewed Law as the limiting of freedom and, according to what the Rule of Law meant. His argument would have been more around the general principles around even setting the speed limit and limiting our freedoms in the first place, what the car could or couldn't do was irrelevant.

The Rule of Law was about the balancing of the inherent freedom man has with the needs of society. The making of arbitrary rules of law that ignore the need to maintain freedoms he considers legislation and it has no relation to the Rule of Law.

A few years ago the State of Michigan's legislature got tired of municipalities using the setting of arbitrary speed limits so they could not just raise revenue but generally control people. So, they passed a state law that mandated that all of the rules making around WHAT the speed limit should be MUST be preceded by a traffic study. A lot of municipalities didn't like that and, as a result, when a citizen decided to fight the tickets, the courts were throwing out the speeding tickets because the cities didn't follow state law.

Hayek would have argued that a speed limit based on a general rule like "We must somehow slow the upper 2% of the speeds that we see" was real Law but the setting of the speed limit to 25, in violation of the general rule, in open desert on a straight-away with 4 lanes because someone wanted to raise revenue... this does not conform to the Rule of Law but to the Rule of Legislative Acts.

We conservatives really need to not let the left convince us that the latter is the former and then enlist the tendency of the right to be law abiding, especially when it's being used as a tool to restrict our freedoms.