Three Arguments for a Stable Rule of Law

In his essay Invasive Government and the Destruction of Certainty, written in 1988, Ridgway K. Foley Jr. writes the following:

“In the first place, mankind encounters less difficulty in dealing with the vicissitudes of the natural order than it does with the amorphous mass created by unpredictable human beings. Man must plan and attempt to predict; since he lives in a regular, not random, world, and since he possesses the equipment and acuity to grasp relationships, he enjoys the ability to adapt and adjust to the natural order, albeit imperfectly. By virtue of the complex matrix created when fallible men attempt to order human life and action, the world becomes more random and human endeavor becomes less predictable.

In the second place, economic success depends upon accurate prediction. Since all value is subjective, the successful producer creates and distributes the goods, services, and ideas most desired in the marketplace. Satisfaction of consumer demand requires the supplier to assess those desires, an assessment which requires certainty and regularity in order to avoid mere fortuity. Thus, to the extent that the law renders the legal or permissible results of human activity uncertain, economic efficiency declines into misapplication of scarce resources to satisfy nonexistent or less pressing human wants.

In the third place, unnecessary interference with human activity and needless uncertainty creates significant human unhappiness and anxiety. Creative, innovative, and adventurous actions spice life and lift the individual from the doldrums, at the same time occasioning the material and mental wealth of the world. Useless dampers on such creative action not only impede personal and societal growth but also cause that mold of frustration which breeds in unnatural cultures. Litigiousness, instability, incivility, shoddiness, sharp practice, dishonesty, and their unpleasant companions become natural sojourners in the mandate state.”

Read the entire brilliant essay here,


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