LEGAL RESEARCH Economic Freedom

8/13/2019 LEGAL RESEARCH Economic Freedom

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Economic freedomFrom Wikipedia, the free encyclopedia

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Economic freedomor economic libertyor right to economic libertydenotes the ability of

members of a society to undertake economic direction and actions. This is a term used ineconomic andpolicy debatesas well as a politicoeconomic philosophy. As withfreedom

generally, there are various definitions, but no universally accepted concept of economic

freedom.[1][2]

One major approach to economic freedom comes fromclassical liberaland

libertariantraditions emphasizingfree markets,free tradeandprivate propertyunder freeenterprise, while another extends thewelfare economicsstudy of individual choice, with greater

economic freedom coming from a "larger" (in some technical sense) set of possible choices.[3]

Other conceptions of economic freedom includefreedom from want[1][4]

and the freedom to

engage incollective bargaining.

[5]

Thefree marketviewpoint defines economic liberty as the freedom to produce, trade and

consume any goods and services acquired without the use of force, fraud or theft. This isembodied in the rule of law, property rights and freedom of contract, and characterized by

external and internal openness of the markets, the protection of property rights and freedom of

economic initiative.[3][6][7]

There are severalindices of economic freedomthat attempt to measurefree market economic freedom. Empirical studies based on these rankings have found higher

living standards, economic growth, income equality, less corruption and less political violence to

be correlated with higher scores on the country rankings.[8][9][10][11][12]

Why Does Economic Freedom Matter?

Economic freedom is a crucial component of liberty. It empowers people to work, produce,

consume, own, trade, and invest according to their personal choices.

Why Does Economic Freedom Matter? from The Heritage Foundation's Understanding

Americaseriesexplores the framework America's Founders established for an economically

free nation, and what economic freedom means for the United States and the rest of the world.

Rule of Law

Rule according to law; rule under law; or rule according to a higher law.

The rule of law is an ambiguous term that can mean different things in different contexts. In onecontext the term means rule according to law. No individual can be ordered by the government to

pay civil damages or suffer criminal punishment except in strict accordance with well-
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established and clearly defined laws and procedures. In a second context the term means rule

under law. No branch of government is above the law, and no public official may act arbitrarily

or unilaterally outside the law. In a third context the term means rule according to a higher law.No written law may be enforced by the government unless it conforms with certain unwritten,

universal principles of fairness, morality, and justice that transcend human legal systems.

Rule According to Law

The rule of law requires the government to exercise its power in accordance with well-

established and clearly written rules, regulations, and legal principles. A distinction is sometimesdrawn between power, will, and force, on the one hand, and law, on the other. When a

government official acts pursuant to an express provision of a written law, he acts within the rule

of law. But when a government official acts without the imprimatur of any law, he or she does so

by the sheer force of personal will and power.

Under the rule of law, no person may be prosecuted for an act that is not punishable by law.

When the government seeks to punish someone for an offense that was not deemed criminal atthe time it was committed, the rule of law is violated because the government exceeds its legal

authority to punish. The rule of law requires that government impose liability only insofar as the

law will allow. Government exceeds its authority when a person is held to answer for an act thatwas legally permissible at the outset but was retroactively made illegal. This principle is

reflected by the prohibition againstEx Post Facto Lawsin the U.S. Constitution.

For similar reasons, the rule of law is abridged when the government attempts to punish someone

for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon

government officials who are charged with the responsibility of prosecuting individuals forcriminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a

government official, the less they are based on law.

For example, the DUE PROCESS CLAUSEof the Fifth and Fourteenth Amendments requires that

statutory provisions be sufficiently definite to preventArbitraryor discriminatory enforcement

by a prosecutor. Government officials must not be given unfettered discretion to prosecuteindividuals for violating a law that is so vague or of such broad applicability that evenhanded

administration is not possible. Thus, a Florida law that prohibitedVagrancywas held VOID FOR

VAGUENESSbecause it was so generally worded that it encouraged erratic prosecutions and madepossible the punishment of normally innocuous behavior (Papachristou v. City of Jacksonville,

405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 [1972]).

Well-established and clearly defined laws allow individuals, businesses, and other entities togovern their behavior accordingly (United States v. E.C. Investments, Inc., 77 F. 3d 327 [9th Cir.

1996]). Before the government may impose civil or criminal liability, a law must be written with

sufficient precision and clarity that a person of ordinary intelligence will know that certainconduct is forbidden. When a court is asked to shut down a paint factory that is emitting

pollutants at an illegal rate, for example, the rule of law requires the government to demonstrate

that the factory owner failed to operate the business in accordance with publicly known

environmental standards.
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Rule Under Law

The rule of law also requires the government to exercise its authority under the law. This

requirement is sometimes explained with the phrase "no one is above the law." During theseventeenth century, however, the English monarch was vested with absolute sovereignty,

including the prerogative to disregard laws passed by the House of Commons and ignore rulingsmade by the House of Lords. In the eighteenth century, absolute sovereignty was transferredfrom the British monarchy to Parliament, an event that was not lost on the colonists who

precipitated the American Revolution and created the U.S. Constitution.

Under the Constitution, no single branch of government in the United States is given unlimited

power. The authority granted to one branch of government is limited by the authority granted to

the coordinate branches and by theBill of Rights,federal statutory provisions, and historical

practice. The power of any single branch of government is similarly restrained at the state level.

During his second term, President RICHARD M.NIXONtried to place theExecutive Branchof the

federal government beyond the reach of legal process. When served with a subpoena orderinghim to produce a series of tapes that were anticipated to link him to theWatergateconspiracy

and cover-up, Nixon refused to comply, asserting that the confidentiality of these tapes was

protected from disclosure by an absolute and unqualifiedExecutive Privilege.In UNITED STATESV.NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Supreme Court disagreed,

compelling the president to hand over the tapes because the Constitution forbids any branch of

government from unilaterally thwarting the legitimate ends of a criminal investigation.

Members of the state and federal judiciary face a slightly different problem when it comes to the

rule of law. Each day judges are asked to interpret and apply legal principles that defy clearexposition. Terms like "due process," "reasonable care," and "undue influence" are not self-

defining. Nor do judges always agree about how these terms should be defined, interpreted, orapplied. When judges issue controversial decisions, they are often accused of deciding cases in

accordance with their own personal beliefs, be they political, religious, or philosophical, ratherthan in accordance with the law.

Scholars have spent centuries examining this issue. Some believe that because the law is written

in such indefinite and ambiguous terms, all judicial decisions will inevitably reflect the personal

predilections of the presiding judge. Other scholars assert that most laws can be interpreted in aneutral, objective, and apolitical fashion even though all judges may not agree on the appropriate

interpretation. In either case the rule of law is better served when judges keep an open mind to

alternative readings of constitutional, statutory, and common-law principles. Otherwise, courts

run the risk of prejudging certain cases in light of their own personal philosophy.

Rule According to Higher Law

A conundrum is presented when the government acts in strict accordance with well-establishedand clearly defined legal rules and still produces a result that many observers consider unfair or

unjust. Before the Civil War, for example, African Americans were systematically deprived of
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their freedom by carefully written codes that prescribed the rules and regulations between master

and slave. Even though these slave codes were often detailed, unambiguous, and made known to

the public, government enforcement of them produced negative results.

Do such repugnant laws comport with the rule of law? The answer to this question depends on

when and where it is asked. In some countries the political leaders assert that the rule of law hasno substantive content. These leaders argue that a government may deprive its citizens of

fundamental liberties so long as it does so pursuant to a duly enacted law. At theNuremberg

Trials,some of the political, military, and industrial leaders of Nazi Germany unsuccessfullyadvanced this argument as a defense to Allied charges that they had committed abominable

crimes against European Jews and other minorities duringWorld War II.

In other countries the political leaders assert that all written laws must conform with universal

principles of morality, fairness, and justice. These leaders argue that as a necessary corollary to

the axiom that "no one is above the law," the rule of law requires that the government treat all

persons equally under the law. Yet the right to equal treatment is eviscerated when the

government categorically denies a minimal level of respect, dignity, and autonomy to a singleclass of individuals. These unwritten principles of equality, autonomy, dignity, and respect are

said to transcend ordinary written laws that are enacted by government. Sometimes known asNatural Lawor higher law theory, such unwritten and universal principles were invoked by the

Allied powers during the Nuremberg trials to overcome the defense asserted by the Nazi leaders.

The rule of law is a concept explain in classical time. In GreeceAristotlewrote that "law should

be the final sovereign; and personal rule, whether it be exercised by a single person or a body of

persons, should be sovereign in only those matters which law is unable, owing to the difficulty of

framing general rules for all contingencies." In ancient Rome the Corpus Juris Civilis establisheda complex body of procedural and substantive rules, reflecting a strong commitment to the belief

that law, not the arbitrary will of an emperor, is the appropriate vehicle for dispute resolution. In1215Magna Chartareined in the corrupt and whimsical rule of King John by declaring thatgovernment should not proceed except in accordance with the law of the land.

During the thirteenth century, Thomas Aquinas argued that the rule of law represents the naturalorder of God as ascertained through divine inspiration and human reason. In the seventeenth

century, the English juristSir Edward Cokeasserted that the "king ought to be under no man, but

under God and the law." With regard to the legislative power in England, Coke said that "whenan act of Parliament is against common right and reason, or repugnant, or impossible to be

performed, theCommon Lawwill control it, and adjudge such act to be void." In the United

States,Alexander Hamiltonapplied the rule of law to the judiciary when he argued in The

Federalist, no. 78, that judges "have neither Force nor Will, but merely judgment."

Despite its ancient history, the rule of law was not celebrated in all quarters. The nineteenth-

century English philosopherJeremy Benthamdescribed the rule of law as "nonsense on stilts."The twentieth century saw its share of political leaders who oppressed persons or groups without

warning or reason, governing as if no such thing as the rule of law existed. For many people

around the world, the rule of law is essential to freedom.
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Further readings

Cass, Ronald A. 2001. The Rule of Law in America.Baltimore: Johns Hopkins Univ. Press.

Hamilton, Alexander, James Madison, and John Jay. 178788. The Federalist Papers.Reprint,

edited by Gary Wills, New York: Bantam Books, 1988.

Komesar, Neil K. 2001.Law's Limits: The Rule of Law and the Supply and Demand of Rights.New York: Cambridge Univ. Press.

Michener, Roger, ed. 1995. The Balance of Freedom: Political Economy, Law, and Learning.New York: Paragon House.

Pilon, Roger. 2000. The Rule of Law in the Wake of Clinton.Washington, D.C.: Cato Institute.

Scalia, Antonin. 1989. "The Rule of Law as a Law of Rules." University of Chicago Law Review

56.

Sirica, John. J. 1979. To Set the Record Straight: The Break-In, the Tapes, the Conspirators, the

Pardon.New York: Norton.

Smith, Steven. 1995. "Nonsense and Natural Law." Southern California Interdisciplinary LawJournal4.

Stoner, James. 1992. Common Law and Liberal Theory.Lawrence: Univ. Press of Kansas.

Wood, Diane P. 2003. "The Rule of Law in Times of Stress." University of Chicago Law Review

70.

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LEGAL RESEARCH Economic Freedom