The Online Library of Liberty

A project of Liberty Fund, Inc.

• Associate Editors
• Editorial
• Bibliographical Essay: Ellen Frankel Paul, Laissez Faire In Nineteenth-century Britain: Fact Or Myth?
• I: Legal Philosophy
• The Minos: What Is Law?
• Obedience to Law
• Moral and Legal Justification
• Early First Amendment Theory
• The First Amendment & Freedom of Expression
• The First Amendment and Religion
• The First Amendment Vs. the Cpi
• The Economics of Strict Liability
• The Rule of Law In American Politics
• II: Political Analysis
• Society, State, and Right In Proudhon
• Human Rights and Political Change
• Carter's Human Rights Policy
• Locke's Tolerance: Prudence Or Right?
• Political Intolerance
• Hayek: Reason, Relativism, and Liberty
• Hayek On Coercion and Freedom
• “advanced Liberalism” As Managed Capitalism
• Common Good & Public Interest
• Uncrowding the “commons”
• Milgram: Obedience, Authority, & Legitimacy
• Syndicalism & “the Servile State”
• The Parisian League
• Conservatism In Spain
• Soviet Intellectual Orthodoxy
• The Clergy & the American Revolution
• Russian & American Defenses of Servitude
• Croce's Hegemony: How to Win Minds
• III: War and the State
• Just War and Rights
• Just Wars Vs. No Wars
• Walzer & Just War
• Wartime Propaganda Tactics
• Iran, Oil, and the Cold War
• The State and Oil Policy
• San Francisco & the Military Complex
• Protectionist Assaults On Developing Countries
• Government Military Behavior
• IV: Political Economy and Theory
• Three Kinds of “capitalism”
• Adam Smith: Economic Utilitarian
• Roepke: Laissez Faire and Social Order
• Government-induced Boom & Bust
• Austrian Vs. Neoclassical Methodology
• Professor Friedman's Instrumentalism
• Milton Friedman's Critics
• Entrepreneurship and Justice
• Externalities & Government Intervention

The Rule of Law in American Politics

Richard Bensel

• Texas A & M University

“Creating The Statutory State: The Implications of a Rule of Law Standard in American Politics.” The American Political Science Reviewer 74(September 1980):734–744.

Bensel defines the practical criteria for examining the implications of a rule of law standard in American politics. Using House of Representative voting records, he explores the major contemporary sources of support for and opposition to the concept.

Two of the stronger indictments of the modern state are those of Friedrich Hayek and Theodore Lowi. Each has argued that only the restoration of a rule of law can ensure the continued survival of democratic societies. For Hayek, the rise of the administrative state is accompanied by the decline of legislative law. He argues that state activity should be restricted to general statutory rules which can, because of their relative predictability and objective application, minimize the loss of individual freedom and economic efficiency threatened by arbitrary, lawless state intervention.

Lowi's discussion, somewhat less concerned with individual freedom and move statist in comparison with Hayek's advocacy of a minimal state, also advocates restoration of the rule of law. His interestgroup liberalism critique warns against the increasing reliance on bureaucratic discretion and the decreasing importance of statutory law. He advocates that a desirable juridicial standard is the rule implied in Schechter Poultry Co. v. U.S. (1936) which, if followed, would limit the amount of legislative authority that a statute could delegate to an agency.

Bensel measures conformity to the rule of law by voting records on amendments to bills in terms of whether the bill was “more articulate with the amendment than without it” (operationally defined as “relative conformity to a rule of law”). Bensel interpreted his results as suggesting that a parliamentary-type system in which the president and Congress closely cooperate within a relatively strong party organization may be incompatible with the rule of law. Reforms which strengthen such cooperation may ultimately weaken popular support for the “democratic” state. Therefore, supporters of the rule of law position appear to be at odds with advocates of a strong, heavy-handed, two party system. The development and application of the rule of law standard may indicate a basic incompatibility between the imposition of a rule of law and the establishment of a heavy-handed party government system.

II

Political Analysis

The following group of summaries cover a diverse but interrelated set of issues involving political analysis. The topics dealt with include (in order) human rights, toleration, coercion, the apparent conflict between the individual and the common good, obedience, and a survey of various historical theories or regimes that raise the problems of political power and hegemony.

Particularly important for the dialectical commentary they offer on each other are the initial three summaries concerned with human rights (Reichert, Machan, and Schlesinger) and the concluding group of eight summaries (beginning with Helm's and Morelli's study of obedience, authority, and legitimacy in regard to Stanley Milgram's classic obedience experiments) which deal with various ways to analyze or manipulate political and cultural oppression.