The Rule of Law Is Gasping for Breath

By Kimberly Ells

May 5, 2020

Primary Publisher: Townhall

In the new and troubling COVID-19 culture, the world is bursting with little spies waiting to catch their neighbors committing new crimes.

But the spies themselves are not entirely to blame. New “crimes” are being invented every day by government officials, and zealous citizens are taking it as their duty to make sure everyone is caught red-handed playing at the park, taking Sunday drives, or committing other such atrocities. This arbitrary creation of edicts directly conflicts with the rule of law.

In The Road to Serfdom, F.A. Hayek says, “Nothing distinguishes more clearly conditions in a free country…than the observance of…the rule of law.” In simple terms, being governed by the rule of law means that a government “is bound by rules fixed and announced beforehand—rules which make it possible…to plan one’s individual affairs on the basis of this knowledge.” 

In a society governed by the rule of law, laws are decided by the voice of the people and their representatives. The rule of law makes the actions of the government predictable. This tends to promote personal peace and public order. This is the very kind of freedom citizens of communist countries do not enjoy. Their leaders can decide from moment to moment what is acceptable behavior and people can be disciplined for not obeying rules (or imaginary rules) they did not know existed and never agreed to. This makes life chaotic, unpredictable, and charged with fear. 

At present, the actions of government at many levels in our country are unpredictable. We all huddle around our screens every morning to see what we will be allowed to do today. Hayek says the erosion of the rule of law comes about when people in power introduce “vague formulas and increasing arbitrariness” into society. This inevitably leads to resentment for officials, their edicts, and those who attempt to enforce them. This spirit of rebellion will grow the more the rule of law is upended in the name of saving the world. 

While virtually everyone agrees that precautions should be taken when there is a pandemic afoot, no one person or small group of people—not even elected officials—should take it upon themselves to manage the daily interactions, movements, and purchases of others, especially on a prolonged basis. To do so would be an impossible task and would end in economic and social disaster. Doing this is called “central planning” and it is a staple of socialism.  We are seeing in real-time why it doesn’t work and learning for ourselves how much we resent it. 

To varying degrees, governors and other officials have been given powers through their state statutes to declare emergencies and issue orders during emergencies that carry the force of law which — on rare occasions—may be a key part of their duties. However, it is clear that citizens need to act decisively to modify their state statutes in order to accomplish at least three things: 1) Define and limit the elements of society a governor or health official can issue rules about during an emergency, 2) Ensure that constitutional protections are guaranteed to citizens, even in states of emergency, and 3) Limit the range of behaviors that can carry criminal consequences during emergencies. 

The power of free people lies in the choices of the people themselves. Uprooting freewill in order to theoretically save people is not and cannot be an ultimate or long-lasting solution to any problem. Those who eagerly overrule individual freedoms for what seems to them like a good cause reveal what Milton Friedman calls a “lack of belief in freedom itself.” When the time comes to vote, we must ensure that those who have displayed a lack of belief in freedom do not remain in office.

We must never again find ourselves in a situation where earning a living has been outlawed for many people, arbitrary edicts carrying criminal consequences are raining down upon us, and our basic freedoms are curtailed indefinitely, all in the name of our health.

Generally speaking, people don’t want to die, and they don’t want their loved ones or neighbors to die either. People will act in a self-preserving manner most of the time. This being the case, perhaps there is a wiser path than the one we have taken. 

When a nasty virus is going around, those at highest risk should be advised—and will probably choose—to take significant measures to avoid possible infection. In areas where risk is low and the population is not dense (and perhaps elsewhere) instead of officials forbidding play at public parks, why not explain the risks, post a “play at your own risk” sign and let people decide for themselves? Instead of decreeing that groups of more than 10 people (as if that precise number is magically protective) will be broken up by police, why not explain the risks and recommend that people refrain from getting together in large groups and let them decide for themselves? Instead of forcing businesses to close under threat of police action, provide facts and let people decide if their businesses will remain open and let people decide for themselves whether they will frequent those businesses. 

Many people would rather risk death than stop living. In fact, we all do this—or used to do this—all the time. We get in cars that could wreck, we get on planes that could crash, we board boats that could sink, we play hard and work hard even though we might break a bone doing so. We visit the sick even though we could get sick—and even die—ourselves. Because we used to know, just a few weeks ago, that there is something worse than death.

Hayek warned us decades ago, “Nothing is more fatal than the present fashion among intellectual leaders of extolling security at the expense of freedom.” Hayek used a word that is worth noting: “fatal.” I’m afraid, over the last few weeks, we have begun to fear the wrong kind of death. Death is tragic. But killing freedom in the name of security is the very worst way to live.

Copyright © 2020 Kimberly Ells, Townhall

Kimberly Ells is a policy advisor for Family Watch International. Her book, The Invincible Family: Why the Global Campaign to Crush Motherhood and Fatherhood Can’t Win, launches with Regnery Publishing this summer.

Family Watch International
Stop Comprehensive Sex Education