What all this amounts to, then, is that the Rule of Law requires that administrative discretion in coercive action (i.e., in interfering with the person and property of the private citizen) must always be subject to review by an independent court which is not an instrument of, or even privy to, the aims of current governmental policy; that its review must in all such instances extend to the substance of the administrative act and not merely to the question whether it was infra or ultra vires; and that, if such a court finds that the rights of private citizens have been infringed, it will assess damages just as if the right of this person had been violated by another private citizen. This, in addition to the familiar requirements of generality, equality, and certainty of the law is really the crux of the matter, the decisive point on which it depends whether the Rule of Law prevails or not.
Friedrich HayekRelated topics
act action certainty court crux discretion generality interfering law matter person point privy property question review right ruleRelated quotes
It is frequently charged that this tribunal is tyrannical. If the Constitution of the United States be tyranny; if the rule that no one shall be convicted of a crime save by a jury of his peers; that no orders of nobility shall be granted; that slavery shall not be permitted to exist in any state or territory; that no one shall be deprived of life, liberty or property without due process of law; if these and many other provisions made by the people be tyranny, then the Supreme Court when it makes decisions in accordance with these principles of our fundamental law is tyrannical. Otherwise it is exercising the power of government for the preservation of liberty. The fact is that the Constitution is the source of our freedom. Maintaining it, interpreting it, and declaring it, are the only methods by which the Constitution can be preserved and our liberties guaranteed.
Calvin Coolidge
Predictably, under democratic conditions the tendency of every monopoly - to increase prices and decrease quality - will be only more pronounced. Instead of a prince who regards the country as his private property, a temporary caretaker is put in charge of the country. He does not own the country, but as long as he is in office he is permitted to use it to his and his proteges' advantage. He owns its current use - usufruct - but not its capital stock. This will not eliminate exploitation. To the contrary, it will make exploitation less calculating and carried out with little or no regard to the capital stock, i. e., short-sighted. Moreover, the perversion of justice will proceed even faster now. Instead of protecting pre-existing private property rights, democratic government becomes a machine for the redistribution of existing property rights in the name of illusory `social security.
Hans-Hermann Hoppe
As historical and social beings we find ourselves always already in a linguistically structured lifeworld. In the forms of communication through which we reach an understanding with one another about something in the world and about ourselves, we encounter a transcending power. Language is not a kind of private property. No one possesses exclusive rights over the common medium of the communicative practices we must intersubjectively share. No single participant can control the structure, or even the course, of processes of reaching understanding and self-understanding. How speakers and hearers make use of their communicative freedom to take yes- or no-positions is not a matter of their subjective discretion. For they are free only in virtue of the binding force of the justifiable claims they raise towards one another. The logos of language embodies the power of the intersubjective, which precedes and grounds the subjectivity of speakers.
Jürgen Habermas
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.
Louis Brandeis
But someone is bound to question ... by what right I regard as Ideological State Apparatuses, institutions which for the most part do not possess public status, but are quite simply private institutions. As a conscious Marxist, Gramsci already forestalled this objection in one sentence. The distinction between the public and the private is a distinction internal to bourgeois law, and valid in the (subordinate) domains in which bourgeois law exercises its ‘authority'. The domain of the State escapes it because the latter is ‘above the law': the State, which is the State of the ruling class, is neither public nor private; on the contrary, it is the precondition for any distinction between public and private. The same thing can be said from the starting-point of our State Ideological Apparatuses. It is unimportant whether the institutions in which they are realized are ‘public' or ‘private'. What matters is how they function.
Louis Althusser