Why Hold Laws As Binding On the Rulers

The fundamental economic rationale for subjecting political authority—what we commonly refer to as “government”—to overarching laws it must adhere to is straightforward: it serves to mitigate the temptations of rulers to devolve into despotism or tyranny against segments of the populace. After all, a ruler can’t oppress everyone; they require allies and enforcers from various factions. Only those who believe they will be among the oppressors, rather than the oppressed, might contest the advantages of such legal constraints. To illustrate this, let’s consider two quotes, each from distinct eras and political contexts.

The first quote comes from economist Mancur Olson, as articulated in his work Power and Prosperity: Outgrowing Communist and Capitalist Dictatorships [Basic Books, 2000, pp. 39-40]:

In certain historical instances, prominent families or merchants would establish a government for their city, ensuring a degree of power-sharing through voting while simultaneously minimizing the likelihood of autocratic leadership. For example, in Genoa, it was mandated that the chief administrator be an outsider—someone not linked to any of the city’s influential families. Furthermore, this figure was restricted to a specific term and was compelled to leave the city upon its conclusion, prohibited from marrying into local families. In Venice, after a doge attempted to seize autocratic power and was subsequently executed for it, later doges were paraded in official processions accompanied by a sword-wielding executioner as a grim reminder of the fate awaiting any leader who dared to overstep their bounds. As one might expect, these city-states also boasted more sophisticated judicial systems, contracts, and property rights than many of their contemporaneous European kingdoms, ultimately fostering the most advanced economies in Europe, alongside the flourishing culture of the Renaissance.

As a historical footnote, the doge in question was Marino Faliero (1274-1355). Instead of his portrait, a black cloth now hangs in the Hall of the Great Council, inscribed with:

Hic est locus Marini Faletro decapitati pro criminibus

This is the space for Marino Faliero, beheaded for his crimes.

The second quote is more contemporary and comes from a recent ruling. While we might consider our current era as one in which individual liberties and the rule of law are ostensibly better safeguarded, the question remains: what are the implications if the government feels free to disregard the Constitution? A recent, pointed decision from three judges of the Fourth Circuit Court of Appeals, authored by Judge J. Harvie Wilkinson, sheds light on this issue. The court criticized the administration for failing to rectify its severe “administrative error” of sending Albrego Garcia to a harsh prison in El Salvador, bypassing due process and ignoring a prior court directive. The Wall Street Journal reported on April 18, 2025, (“Court Scolds Trump Administration for ‘Shocking’ Response to Deportation Error”):

“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 asserted.

“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 quoted from the Constitution, “would lose its meaning.”

The only method by which the law can effectively bind rulers—if such binding is possible—is through judicial interpretation (with a structured appeal process up to a final court). It is essential that government agents and elected officials, from the most modest to the most ostentatious, remain cognizant of their duty to uphold the Constitution and adhere to court orders. Genuine judges (as opposed to mere “administrative judges”) act independently and are not merely extensions of the government. Their role is inherently reactive: they step in only when a party feels wronged and seeks legal recourse. For further insights, Friedrich Hayek’s Law, Legislation, and Liberty, particularly the first volume, is an essential read about the judiciary’s role.

We find ourselves in a time that is exhilarating, enlightening, and perilous—all at once.

******************************