Beyond Hobbes: A Reaction to Andy Craig’s Observations on David Boaz and the Rule of Law

   

The rise of governments where officials have constitutionally limited powers is one of the greatest successes in the long human history of fighting against oppressive reigns and regimes. David Boaz recognizes and highlights this in the preface to the 2025 Edition of The Libertarian Mind.

It is what John Adams spoke of when he described a republic as a nation of laws, not men. We are flawed, every one of us, which necessitates rules of engagement which both allow us inherent personal freedoms, and some form of protection from violations thereof. David understood this, admonishing his readers not to forget how much of their lives are lived in freedom. There are no planning boards dictating where one may work or permits needed to buy a new computer. Many of the decisions we make in our everyday lives are free from the coercion and interference of others, which is the foundational concept of rule of law.

However, as Andy has noted, laws are how the state imposes its will through its legal monopoly on force. How then, can the rule of law be equated with freedom? As I remarked earlier, the protection of our individual liberties against the claims and violations thereof of others requires some sort of larger, mediating force to protect everyone’s freedom. While many within the libertarian movement chafe at such a concept, as David would point out, it’s how we preserve such things as cosmopolitan tolerance, equal protections and freedom from legalized bigotry. Imperfect, sure, and it might be a different case if we all lived far apart in extended family units of hunter-gatherers who depend on one another for survival (although the story of Adam and Eve, the original hunter-gatherers, might suggest otherwise). But we do not, nor would we likely want to. That life was often, as Hobbes indicated, “solitary, poor, nasty, brutish and short.” However, so would living in large civil societies such as ours without the rule of law.

Before moving on to some of Andy’s other points, it might be instructive to define what rule of law actually is, beyond philosophical generalities. To Samuel Adams, it meant “one rule of justice for rich and poor, for the favorite in court, and the countryman at the plough,” while today, the Administrative Office of the United States Courts defines it as holding all people, institutions and entities accountable to laws that are publicly known, equally enforced, adjudicated by unbiased parties, and consistent with the international principles of human rights. This is where a constitutionally limited government with defined separation of powers comes in.  Elected officials, bluntly speaking, have to win elections. This creates a moral hazard to cater to the will of the electorate, and interest groups that can aid in appealing to large segments of the electorate. This opens the door to not only a tyranny of the majority, but also, because interest groups can exert a disproportionate amount of influence on both legislators and the Executive branch, a tyranny of the minority. This makes an independent judiciary not subject to political whims a critical necessity, and such independent judiciaries only exist in systems with constitutional orders which respect rule of law.

Of course, we live among men and not angels, and even constitutional limits rely upon the goodwill of men and women to enforce them. To paraphrase David’s own words, whatever its proper role, the government is just people using force against other people, and people are imperfect, corruptible, and sometimes evil. When we deal with this reality, as Andy astutely notes, it can lead to the willingness to compromise with someone who promises to slash the evils of the state as a benevolent dictator. There are a number of issues with this compromise, the least of which is the fact that process matters. The road from shuttering alphabet agencies while ignoring constitutionally prescribed legal processes to kidnapping legalized immigrants for shipping off to El Salvadoran penal gulags is a short one.

This is because, and this is the second issue, the concept of the benevolent dictator is an illusion. Even the Caesars - Hadrian, Nerva, Trajan, Antoninus Pius and Marcus Aurelius – that history hold as the “Five Good Emperors” most responsible for the Pax Romana would stand out as terribly autocratic in today’s liberal, cosmopolitan societies. For this reason, David took a dim view of the January 6th insurrection – and it was an insurrection – as well as the attempts to game the judicial system to hold on to power. He would have been rightfully appalled by such apparatuses such as DOGE and the consolidation of ostensibly independent agencies under the sole purview of the Executive branch. Benito Mussolini did not, after all, make the trains run on time. He simply built ornate stations with dedicated lines to serve the elite and left the working-class dependent on trains for transportation to their own devices.

Even were the centralization of power into the hands of one, or few, not prone to corrupt even the best among us, there would be a knowledge problem. Elon Musk, or Donald Trump, or the fictional Jed Bartlett of The West Wing would need to utilize dispersed knowledge, often held privately, to achieve social goals and make rational decisions. This is hardly possible when power is held by many, and even less so when held by few. The end result would be the same as a system run with despotic intent. It is adherence to the rule of law that protects us from charlatans who would rule as kings or tyrants.