The economic case for submitting political power (“government”) to general laws that it must itself obey is, at bottom, simple: to blunt the incentives of rulers to become despotic or tyrannical toward a portion of the ruled. (They can’t tyrannize all the ruled because they need supporters and praetorians of different sorts.) Only those confident that they will be among the exploiters rather than the exploited could disagree with this benefit of the law. Two quotations from two different epochs and political systems can illustrate the point.
The first comes from economist Mancur Olson (in his book Power and Prosperity: Outgrowing Communist and Capitalist Dictatorships [Basic Books, 2000], pp. 39-40):
Sometimes, when leading families or merchants organized a government for their city, they not only provided for some power sharing through voting but took pains to reduce the probability that the government’s chief executive could assume autocratic power. For a time in Genoa, for example, the chief administrator of the government had to be an outsider—and thus someone with no membership in any of the powerful families in the city. Moreover, he was constrained to a fixed term of office, forced to leave the city after the end of his term, and forbidden from marrying into any of the local families. In Venice, after a doge who attempted to make himself autocrat was beheaded for his offense, subsequent doges were followed in official processions by a sword-bearing symbolic executioner as a reminder of the punishment intended for any leader who attempted to assume dictatorial power. As the theory predicts, the same city-states also tended to have more elaborate courts, contracts, and property rights than most of the European kingdoms of the time. As is well known, these city-states also created the most advanced economies in Europe, not to mention the culture of the Renaissance.
As an aside, the executed doge was Marino Faliero (1274-1355). In the Hall of the Great Council where his portrait should have stood among the other doges, a black cloth stands bearing the inscription:
Hic est locus Marini Faletro decapitati pro criminibus
This is the space for Marino Faliero, beheaded for his crimes
The second announced quotation is far from the 14th and 15th centuries and much closer to us. Ours is a time when individual liberty and the rule of law are supposedly better established, but what could happen if the government is permitted to disobey the Constitution? The April 17 scathing decision of three judges of the Fourth Circuit Court of Appeals, signed by Judge J. Harvie Wilkinson, provides an answer. The Court blames the administration for doing nothing to correct its egregious “administrative error” of sending Albrego Garcia to a barbaric prison in El Salvador, without due process and in defiance of a previous court order. The Wall Street Journal reports (“Court Scolds Trump Administration for ‘Shocking’ Response to Deportation Error,” April 18, 2025):
“This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” Wilkinson wrote.
“If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to ‘take Care that the Laws be faithfully executed’,” he wrote, quoting the Constitution, “would lose its meaning.”
The only way the law can bind the rulers, if there is any way, is that it be interpreted by judges (with an appeal process up to a final court) and that government agents and elected officials, in the executive and the legislative, from the most humble one to the most pretentious, be conscious of their duty to uphold the Constitution and thus obey court orders. Real judges (as opposed to “administrative judges”) are independent and not properly government agents. Their role is purely reactive—they only intervene when a party feels aggrieved and calls on them to apply the law. (Friedrich Hayek’s Law, Legislation, and Liberty, especially Volume 1, is essential reading about judges.)
We live in exciting, educational, and dangerous times.
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A doge in Venice followed by his symbolic executioner c. 1400, according to ChatGPT
READER COMMENTS
Thomas L Hutcheson
Apr 19 2025 at 11:40am
Hopefully, Sic Semper Tyrannis.
Peter
Apr 19 2025 at 11:43am
“Real judges” … don’t exist. They are funded by the legislature and serve at the whim, including appointment, trapping, and retirement by the other two superior branches. There is no position in the government more political than a judge and they exist solely to provide the public masses a veneer of legitimacy to masters (King, President, Council, etc ) whim or to solve disputes between the masters first line backers.
You can quote Italian city states all day but I’d bet every penny I have the doges knew who buttered their bread in a dispute between a member of a prominent merchant family vs an illegal immigrant, an outsider, or a chimney sweep.
Prisons are full of innocent people whom judges have denied due process and with no recourse. Due process is full of holes which create travesties of justice intentionally made by judges, not law, for “administrative efficiency” hence I find it amusing when judges pretend they care about the rule of law, or liberty. What they care about above all else us the rule of Law in the Judge Dredd sense, where the confound THEMSELVES as “the law”, just like they confound themselves as “the court” rather then just another bureaucrat filing a position no more important than a meter maid.
“And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies?” Is especially amusing, that is what Executive discretion actually is AND is abused each and every day millions of times by those empowered with it. As public choice theory says each little executive employee is a mini tyrant unto himself acting in his personal interest and that means only using their discretion against those that benefit their career. Cops arrest people because if they want to succeed on their position, politic demand they arrest that particular person hence why they don’t arrest the Chief’s son nor their supervisors wife.
Judges are a joke in the common law system, they deserve nothing but scorn and contempt and should be afforded no more deference than necessary. We attempted to create a land without kings and nobility, judges forget their place as they have attempted quite successfully at all but the highest halls of power, to turn themselves into nobility. As the saying goes in jest, but sadly true, “there is no power in America which can exceed even God but a trial judge”.
The rule of law has never existed in America as Americans understand it, the RULE of Law does. If it takes Trump to pull off that veneer, I laud him for it. Judges don’t have absolutely immunity* from criminal charges, I hope nothing more than DOJ turn it’s gaze on them as we all commit multiple crimes a day, including felonies, and I’d bet, given their arrogance, judges commit them at a higher rate. His going after the New York prosecutor is a start and welcoming sign, now just needs to go after the bench including sitting SCOTUS justices. Hard for Roberts to made a decision in chains while on the receiving end of that “rule of law” he promulgates defending himself from the hundreds of charges felonies over his lifetime.
* The very fact judges have immunity at all shows just how much contempt they have for the rule of law. You can’t have the rule of law when it’s good for me, not thee.
Pierre Lemieux
Apr 19 2025 at 12:24pm
Peter: Some of your points are good, some less so. (The latter remind me of Murray Rothbard, of whom I was once a fan.) For example, your sentence “serve at the whim, including appointment, trapping, and retirement by the other two superior branches” is factually false. A large margin of judicial independence still exists; the proof is that you and I can express our opinions, and that the US government may (hopefully) have to return Abrego Garcia to the US instead of firing the judges or cut their salaries.
For the theory of the common law, read the Hayek book I recommended above. His The Constitution of Liberty is more historical and may be easier to read.
As I mentioned in my post, “the only way the law can bind the rulers, if there is any way, is that it be interpreted by judges…” (emphasis added). You could buttress what can be supported your own argument by reading Anthony de Jasay, who argues that there is no way to limit the state; see notably his Against Politics, which I reviewed on Econlib.
Craig
Apr 20 2025 at 10:18am
“A large margin of judicial independence still exists”
Municipal courts are a joke. State courts are a bit better but judges are incompetent buffoons who can’t hack it in life. Federal judiciary is better and for mundane day to day cases, they’re ok, once there’s a political bent to the case though? No, they’re all political hacks, legal determinism abounds.
steve
Apr 19 2025 at 2:00pm
I am not especially thrilled with a lot of the judiciary, but there really isn’t any other check on executive power in our system. If Congress is supine there is nothing left. While you can always make the case that the law and its enforcement is not perfect the lack of such is much worse. It’s notable that through history the establishment of law and courts is associated with advancement. In modern times, note that the reason that the people in Afghanistan were willing to accept the Taliban. It was largely because the Taliban provided reliable courts and judges. Absent the courts disputes were resolved with violence.
As an aside, I think we treat the entire political class, including judges, with too much immunity. A lot more of them should be facing more leal action. We got rid of kings but seem to want to bring back royalty.
Steve
Thomas L Hutcheson
Apr 19 2025 at 6:08pm
What happened to the DOGE who promised to eliminate trillions of Ducat in waste fraud and abuse and reduced much less, not all of which was waste fraud or abuse?
nobody.really
Apr 19 2025 at 10:54pm
* snort! *
Craig
Apr 20 2025 at 10:14am
Well maybe they can expedite his return and since he’s a suspected member of an FTO drone him like Aulaqi, an actual US citizen, and bring his body back in a body bag?
CNN paints him like a saint, Fox News makes him out to be dirtbag. I have no idea, indeed that is why we have hearings, but with respect to Albrego the former better be true because if there is some merit to what Fox News is saying coming back is one thing, but he shouldn’t necessarily labor under the opinion that means he will get to live happily ever after, trust me, they very well may charge him with actual federal crimes and he’ll win the booby prize, a length stay at Club Fed. Be careful what you wish for.
nobody.really
Apr 20 2025 at 12:05pm
I largely share this view, but not this attitute.
THAT IS THE WHOLE POINT. Albrego did not have a hearing, so the Trump Administration was no position to judge him, in no position to imprison him, and certainly in no position to imprison him in a foreign country contrary to a judge’s orders.
THEY’D BETTER CHARGE HIM. Otherwise, the Trump Administration would be admitting that they not only denied him due process before sentencing him, they never had a charge to lay against him in the first place.
That said, ponder some hypotheticals: Joe, who lacks US citizenship, conducted zillions of terrible crimes on behalf of some criminal/terrorist organization–but then secretly cooperated with US officals against the organization in exchange for immunity from prosecution/extradition and authorization to remain in the US. Or, a variant, US officials tortured Joe to extract information about criminal/terrorist organizations to which he belonged, and then the officials entered into a settlement to keep Joe from suing. These hypotheticals reconcile the idea that Joe may have committed crimes and the US may be unable to bring charges against him.
This scenario reconciles the idea that Joe may have done bad things with the idea that officials are unable to bring charges against him.
Craig
Apr 20 2025 at 2:41pm
The issue is really whether or not he can be designated an ‘enemy’ and subjected to the ‘war’ power and therein is an important element of what Trump is trying to do because here’s the thing, if we presume that Congress declares war on Germany, the lowliest private (make no mistake about it a member of the Executive Branch) can target, subject to the law of war and the UCMJ, an individual he reasonably believes to be the ‘enemy’ and shoot him dead, no hearing, all instances of military force are extrajudicial. That’s why its dangerous, that’s why the Constitution uses Congress to let loose the dogs of war. But we’re not in a situation where substantial amounts of legislative authority has been delegated to the Executive Branch. So this is why Awlaki becomes important here because notwithstanding his status as a US citizen the Obama administration deemed him to be a member of Al-Qaida, they found him in Yemen and killed him. There was no hearing. Indeed enemy aliens can actually be summarily detained just like any other POW. Indeed the only distinction is that being at war with a nation state like Germany is a bit different from labelling a non-state actor like MS-13 as a FTO, right? But it has been done before with respect to Al-Qaida. Also of note is a WW2 instance where German saboteurs were caught after having landed on Long Island, they were then subjected to a military tribunal, six ultimately executed, two handed lengthy prison sentences. Not unusual for the treatment of un-uniformed ‘spies’ back in WW2.
Pierre Lemieux
Apr 20 2025 at 3:30pm
Craig: It is not because there have previously been acts of arbitrary power (that is, tyranny) that more tyranny today is justified. It is not because Japanese Americans were interned during WWII, that… whatever (indeed, the Supreme Court finally admitted that the internment was illegal).
nobody.really
Apr 20 2025 at 9:37pm
Admittedly, sometimes it can be hard to say when battlefield norms apply and when they don’t; see Bertolt Brecht’s Mother Courage and her Children (1939). But I think one point of distinction is custody.
Perhaps so—if that lowliest private met the enemy on the field of battle. But if that lowliest private elected to gratuitously gun down the enemy while they were in custody in a prisoner-of-war camp, this would be called a WAR CRIME.
I have doubts about the justice of killing Anwar al-Awlaki. But as far as I know, the US never had Al-Awlaki in custody. If the US had managed to get Al-Awlaki into its custody, then I suspect killing him gratuitously would have qualified as wrongful homicide.
Yup: Caught, held in US custody, and subjected to various punishments after having received due process of law.
Thus, for me the chief point of distinction in all these cases is whether the target was in US custody. The various Venezuelans under discussion were all, unambiguously, in US custody. Thus SCOTUS found that they were all, unambiguously, entitled to due process before being extradited.
Craig
Apr 21 2025 at 7:16am
Just a minor comment on the German saboteurs, if the German saboteurs had been wearing uniforms their belligerency would have been ‘lawful’ and they would have been captured and detained as POWs, subject to ‘nonpunitive’ detention for the duration of the conflict without any tribunal. Since they weren’t wearing uniforms their belligerency becomes ‘unlawful’ (we typcially don’t view spies as ‘war criminals’) but to subject them to ‘punishment’ then required a military tribunal.
William Connolley
Apr 23 2025 at 5:52am
Why do you prioritise “The economic case”, other than because you’re an economist? The primary case is political. That it also makes economic sense is secondary. Or would you aregue instead that a less free and more despotic society would be acceptable, if it made that society overall richer?
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