Democracy and the Rule of Law: Reflections on Gerald Frug

Listening to Gerald Frug talk about the concept of rule of law in relation to cities reminded me just how manipulative elites can be. Frug, a distinguished Harvard law professor, is concerned with the deconstruction of the idea of the rule of law as it is popularly understood and disseminated by politicians, businesspeople, and "think" tanks. As Frug points out, this usually is a particular model of market regulation focusing on improving the ability for individuals and groups to engage in capital accumulation. Hernando de Soto has argued in The Mystery of Capital that this, more than any other reason, is why the "third world" is still mired in poverty. In contrast to this notion of rule of law, Frug argues that its importance is in "restraining the excercise of arbitrary power".


This concept seems quite fair, but what exactly might we constitute as "arbitrary"? Fundamentally, Frug points out that arbitrary power is any decision-making authority that is not democratically excercised. This too warrants a definition: for Frug, "democracy is a lived experience" empowering people with greater control over their lives, rather than a simple electoral formula or representativeness in a legislature. Thus, Frug's ideal-type 'rule of law' is one that ensures that everyone's voice is involved in decision-making processes. As potential sources of arbitrary power, Frug cites governments, elite experts and professionals, and relevant to his city theme, neighborhood groups.

Beyond a dichotomous assertion of individuality implicit in Frug's understanding of rule of law, he hints at an essential point: if the legal system is founded, as in any representative democracy, on the arbitrary decisions of an elite minority (via the legislature and judiciary), then just how "legal" is it? Frug looks to the communal norms, customs, and checks on power in shantytowns around the world - in short the 'informal' segments of society - and determines that these arrangements are legal in their own right. The imposition of a formal legal system, especially when it is imported from afar via the WB and other development agencies, is clearly an excercise of arbitrary power that infringes on the legal structures of these state-autonomous regions. Now, the legal system of these informal shantytowns may be highly corrupt, immensely hierarchical, patriarchal, and brutally repressive - but then again, looking back on its historical development, so is our own.

Frug instead insists upon a notion of the rule of law that is flexible, situational and context dependent - one that is dynamic, not relatively static, and one that protects the "weak" from the "strong" instead of institutionalizing the power of the latter. Though he discusses this concept with reference to urban localities, he emphasizes that these local structures must not simply form an addition to the formal [national + subnational] legal structure, but radically transform it.

Elites who have a considerable stake in the particular idea of rule of law that is currently being disseminated (read: the formal liberal-capitalist legal structure) seek only to totalize its presence over society. This expansion, while often cloaked in the language of freedom and democracy, is clearly anti-democratic in the sense that it only empowers a small minority. But it is also opposed to the Frugian spirit of the "rule of law", in the sense that it seeks to bolster the hegemony of arbitrary power. This oligarchical format runs the risk of degenerating to blatant totalitarianism, as even if the content of the laws remain fairly liberal in nature, the structure of the legal system will not. Even Friedrich von Hayek warned us against this in The Road to Serfdom!

The rule of law is a welcome ideal that we must always strive for, if it is employed in the Frugian sense. But we should be intensely critical of this concept at all turns. If the bourgeois, questioning absolutism, asked "Whose rule should we submit to?", deciding among themselves on themselves via nascent "democracy", we the masses should ask the same question. Whose laws do we follow, even if we agree with many of them? Who determines which laws are right and just and which are not? Thinking about these questions for only a little while should reveal a radical disconnect between our "rule of law" and democracy.

The Road to Serfdom is a Good Book

There, I said it. Likely all who stop reading this post at the title, and who have done the same with Hayek's book will be appalled, and will proceed to lambast me somewhere (oh wait, I'm not that important!). But it's something that needs to be said, though perhaps not for the reasons that one usually praises a book for. Many on the left know the frustration of having certain author's taken out of context by their ideological opponents, whether it be Marx or Chomsky, two very common candidates. Hayek is an equal candidate, and like Marx, he is misunderstood and misinterpreted by both the left and the right. And especially since it is those who have championed the actual implementation of neoliberalism and claim Hayek as their ideological founder that obscure his - at least as stated - positions, and thus wrap themselves in yet another shawl of false legitimacy, it is especially frustrating. But I digress. Why then is The Road to Serfdom a good book?
Mainly, or at least from my uninformed position, because it actually presents serious challenges to the positions of socialists of varying stripes. In short, it forces one, unless they choose not to read the book or uncritically shrug Hayek's arguments off, to actually ponder and critically analyze the positions that they hold. The basic argument, that certain aspects of state planning produce the propensity towards greater power concentrations ('totalitarianism', as he puts it), though not a truism, is certainly borne out in historical practice. Thus, for proponents of national state socialism, Hayek provides the perfect springboard for critically approaching the practical dilemmas of coordination, decision-making, power distribution and adjudication. Indeed, those radical democrats who decry technocratic rulership that, at least currently, goes hand in hand with national centralization will share at least one common point with Hayek. For the growing number that views the national state with the same distrust as capital, be they liberal anarchists, social libertarians, left communitarians or any of the myriad political distinctions out there, Hayek's book is largely dated. Almost all of Hayek's arguments assume the national state, which is increasingly being contested in the scholarly community - but there is still value in reading this book as a way of further contextualizing their positions within a long strand of intellectual history.
But of course, The Road to Serfdom is not without its flaws. Hayek's use of rhetoric is conniving and distracts from his actual message, which he explicitly states is his intention. As an example, Hayek crudley equates "fascism" (which is almost never used in the book) with "socialism". This is clearly an attempt to reframe the word to include the negativity of Britain's Nazi enemies without regard to the qualitative differences between the two terms. It would be like claiming that 'anarchism', in the pejorative sense, is liberalism, in the Hayekian sense. Chapter 12 seeks to trace "The Socialist Roots of Naziism", an endeavor with about as much validity as tracing the roots of British slavery to the rediscovery of Aristotle during the Renaissance. These two factors are clearly correlated, and indeed, many proponents of slavery did rely on the classic texts, but they are clearly not causally linked in any rigorous way. Hayek's spuriousness and imprecision in making this argument leaves him open to ridicule, such as that German democracy sprang from Naziism - after all, Hayek says himself that the Nazi's viewed themselves as practicing the 'true democracy'.
But for me at least, these flaws are balanced by the intellectual honesty that Hayek displays in the first paragraph of the preface to his original book. He states, "This is a political book.[...] But, whatever the name, the essential point remains that all I shall have to say is derived from certain ultimate values. I hope I have adequately discharged in the book itself a second and no less important duty: to make it clear beyond doubt what these ultimate values are and on which the whole argument depends" (xlv, 1994 ed.). We may, and should, criticize those "ultimate" values for being utopian, selfish, insufficient, inefficient and irrational, almost all of which Hayek has a counter-argument for that will spark important debates, but we must also commend him for not hiding behind "scientific fact" or determinism, and (not entirely) relying on reductive and static conceptions of human nature, unlike his future 'disciples'.
For me, the most fundamental fallacy Hayek makes is to equate the decentralization of power in society with the automatic propensity for competition (214). We have the historical 'advantage' of living through what Peck and Tickell call 'roll-out neoliberalism', where Schumpeterian creative destruction reigns free (ironically still carefully regulated of course), and can see that competition is only a classificatory means of changing who will hold power, rather than a progressive end, or even a sustainable process. Those who have subverted Hayek's proscriptions in chapter 14, those unlucky recipients of neoliberal policy, have only redecorated for a new era of monopoly capitalism.
Avoiding The Road to Serfdom is an easy thing to do, if we choose to hole away in hospitable intellectual enclaves, but we do so at our peril, while those who manipulate Hayek's ideas work to advance the interests of those whom he condemns (namely monopoloy capitalists, or just about all of them!). And for those who think that reading this book is unnecessary due to its antiquated publication date, it's not, at least not to the uninitiated like myself. Just as Karl Polanyi's The Great Transformation has garnered so much attention in recent years (an absolutely perfect complement and critique to Hayek, written in the same year by yet another Austrian - perhaps the subject of another post), The Road to Serfdom is still highly relevant for those engaged in the critique of contemporary North American society. I encourage everyone who is interested in the values underpinning socialism, and critical thought, to actually read this book - it will make criticizing Thatcher and Reagan a little easier!