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, http://www.thefreemanonline.org/columns/invasive-government-and-the-destruction-of-certainty/.

Equality or Equality Under the Law?

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

“A commonplace tautology equates justice with fairness, without any feint at content or elucidation. Nonetheless, “fairness” in the common law tradition gives birth to the beguiling beauty of equality_ Equality, in the guise of Cain, cultivates a leveling egalitarianism, quite apart from sound tradition or good sense. Equality, in the garb of Abel. calls for like treatment in similar situations: it is “fair” or “just” if commoner and king each must keep their uncoerced promises, avoid trespassing upon the next-door neighbor’s land, and restore gains secured by deception and malevolence. The grand phrase, “equality under the law,” properly conveys no more than this notion.

Certainty represents an essential component of this sort of fair or just behavior. Occupants of all stations in life start legally equal if each individual understands that similar responses will follow like acts or omissions. The common law participated in a sentiment that every man should know the law and govern his actions accordingly. This presumption—less a fiction in the fifteenth century than in the twentieth—obviated any defense of the unintended consequence; one could not avoid an unpleasant outcome by the subjective assertion that he did not understand his act to be unlawful, or that he did not contemplate a specific binding result. Derided by some modernists as unduly formalistic, the certainty of the common law allowed men to organize their activities and to accommodate their behavior to regular, common, known rules of order, similar in concept to the natural rules of order of the physical and praxeological universe.”

Read the entire essay here, http://www.thefreemanonline.org/columns/invasive-government-and-the-destruction-of-certainty/.