Samuel Gregg and the Rule of Law

I have never been an avid reader of Public Discourse, perhaps because of its manifest classical liberal leanings. Also, it looks like another forum for the Acton Institute.

Last week I discussed briefly Dylan Pahman’s article on religious liberty begetting economic liberty. This time I want to take a look at Samuel Gregg’s latest, “Poverty, the Rule of Law, and Human Flourishing.” Gregg, as many of you may know, is the Acton Institute’s Research Director and the author of Tea Party Catholic. (I have mentioned Gregg before in an earlier post, “The Crony Capitalism Claim.”) Like many of his fellow Actonites, Gregg promotes the marriage of Catholic Social Thought and economic liberalism while, more generally, maintaining that the principles of political liberalism are not only defensible in the light of reason, but essential for what he calls “human flourishing.” In fact, Acton has an entire “wing” dedicated to this idea, PovertyCure. One of the core components of Gregg’s article, and the PovertyCure, project is the idea of the “rule of law.” But what does that mean? And, more importantly, is Gregg (and other Actonites) concerned with the “rule of law” in the abstract or a particular type of law in the concrete? The “rule of law,” when put into practice, isn’t neutral, and it is not intrinsically libertarian.

You wouldn’t know this from reading Gregg’s piece, however. When discussing the foundations of the rule of law, Gregg asserts that it is “rooted in the liberty it provides each person through the substantive equality it accords everyone before the law” (emphasis in original). This is vague. For while the rule of law, rather than the rule of arbitrary decisionmaking or fiat (sometimes called “the rule of men”), should provide clarity, consistency, and certainty with respect to the acceptability (or not) of certain acts, it does not have to provide “liberty” if, by that term, one means the freedom to do as one pleases consistent with the freedom of everyone else to do the same. A stable society with a deep appreciation for the rule of law may ban all sorts of acts and objects which it deems morally noxious: pornography, prostitution, narcotics, usury, etc. Indeed, this same society could establish very onerous rules for, say, new entrants in the air transportation market or pollution standards for energy providers and not violate the idea of the rule of law. So long as the rules governing both economic sectors are clearly stated and consistently applied, there is no violation of the rule of law; there is only a “violation” of the liberal rule of law where the market ought to reign supreme.

Now, some might object here and argue that top-down economic and environmental regulation is often unstable, and that history has provided innumerable examples of “regulatory capture” or what Gregg and Acton might call “crony capitalism” when lawmakers/regulators are beholden to the industries they purportedly regulate. That type of incentive-driven approach to law is in not unique to regulatory agencies, however. Judges, for instance, may tread lightly or harshly in certain cases if career advancement is a concern. This is not to say that most judges are corrupt, only that they, too, are mindful of their judicial records and what they may mean when it comes time for reelection or when government officials are making high-ranking appointments. Such behavior certainly threatens the rule of law in some circumstances, but addressing those problems is a separate issue from taking an ideologically driven position that all regulation is fraught with cronyism and should thus be avoided altogether. Too much regulation or, one might say, too much law is probably never a good thing, though there is a lot of room for detailed reflection on what “too much” means from society to society, economic sector to economic sector, and so forth.

In the end, Gregg doesn’t put all of his cards out on the table. While he pays positive notice to the rule of law, he only focuses in on a certain type of law, which is liberal. No mention is made in his article, or even at the PovertyCure website, that decidedly non-liberal (or, if you prefer, pre-liberal) societies in human history have had a great deal of respect for the rule of law. The Romans, and their Byzantine heirs, had a sophisticated legal system which, though imperfect, upheld the rule of law while also retaining rules governing property that contemporary liberals like Gregg find abhorrent. A modern society stepping out of the darkness of tyranny or civil war can, on the one hand, embrace the idea of the rule of law while, on the other, rejecting the unchecked market-driven mentality that Gregg and his associates stand by. This doesn’t mean paving the way for mass expropriation of industries or burdensome taxation schemes. However, what it does mean is that when the common good is put at risk by unfettered capitalism or liberties which corrode the moral order, the state can intervene in accordance with established, preexisting laws. That same state could, consistent with its legal code, also choose to keep its hands off any number of issues, including abortion, euthanasia, and blasphemy. That is, it could provide, through its particular iteration of the rule of law, the sort of freedoms that the triumph of liberalism inevitably sets loose in the world.