Freedom from arbitrary rule

Many of us, as children, have experienced the arbitrary rule of the school playground.  Everywhere, school playgrounds have been, are, and always will be, the personal fiefs of the school bullies who, away from the watchful eyes of teachers, and not yet having internalised the Golden Rule^[1] of social behaviour, indulge their base instinct^[2] to dominate and humiliate others at will. 

In years gone by, the feudal lord's "right" to claim the first night with any newly-wed bride of his fancy was an example of arbitrary rule and abuse of power that, thankfully, many of us today do not have to endure.  Yet there remain many societies world-wide, as well as sub-cultures within virtually every society, where arbitrary rule and the systematic abuse of power are the norm rather than the exception. 

The distinguishing characteristic of civilised society is generalised freedom from arbitrary rule, whether it be arbitrary rule by a feudal lord, a military despot, a pimp, an overbearing partner, an employer, a ruling social elite (even where it ostensibly acts impersonally through the free market^[3]), the State, an international crime syndicate, or a trans-national media corporation. 

The distinguishing characteristic of civilised adult behaviour is not indulging in the arbitrary exercise of power when the opportunity arises; of having internalised the Golden Rule. 

In adult life the successful internalisation of the Golden Rule by ourselves and our peers, and its ongoing containment within our psyches by social pressure and the force of law, help to protect us from arbitrary rule and abuse by others. 

Freedom from arbitrary rule requires predictability of action by those in power.  In John Locke's phrase [English philosopher; 1632-1704], this requires that people shall be governed by `promulgated establish'd laws, not to be varied in particular cases'.  Explicit and formalised rules governing the behaviour of those in power are necessary, so that each person is aware, so far as possible, of the demands that drive and the constraints that channel the behaviour of those with power, thereby allowing their behaviour to be predicted. 

It is not possible or desirable to establish and promulgate an exhaustive set of laws to constrain those who govern or otherwise exercise power; an unmanageable volume of statutes and regulations would result - society would become hidebound in red tape.  Rather, the demand for predictability of ruler-action inevitably leads to the creation of a hierarchical system of rules, in which the legality of detailed regulations and actions may be formally tested, when necessary, against successively higher and broader laws, principles, and values.  The detailed, when detail cannot be avoided, is thereby validated against the general and holistic. 

The apex of such a hierarchy of rules may be comprised of a Constitution that, in a democratic society, would be ultimately subject to popular control.  In such a context no single individual or group rules society - the law rules.  The rule of law rests on a hierarchy of rules that can ultimately be tested by any aggrieved citizen against a final constitutional authority.

There is of course no guarantee that `the rule of law' will not, in time, be subverted and manipulated^[4] by those in power to serve sections of society rather than society as a whole.  To the contrary, experience tells us that there is every likelihood that the hierarchical system of rules will eventually, and perhaps even quite rapidly, be captured.  But is there a better alternative^[5]?