The Myth of the Rule of Law

Michael Malice’s excellent anthology, The Anarchist’s Handbook, includes an essay by John Hasnas, a professor of law and business at Georgetown. He opens his essay with a simple quiz:
On the basis of your personal understanding of the meaning of this sentence (not your knowledge of Constitutional law), please indicate whether you believe the following sentences to be true or false.

  1. In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.
  2. The President can issue an executive order prohibiting public criticism of his administration.
  3. Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.
  4. A federal statute can be passed prohibiting a citizen from falsely shouting “fire” in a crowded theater.
  5. Congress may pass a law prohibiting dancing to rock and roll music
  6. The Internal Revenue Service may issue a regulation prohibiting the publication of a book explaining how to cheat on your taxes and get away with it.
  7. Congress may pass a statute prohibiting flag burning.

Since I did such a poor job of jettisoning my prejudices about constitutional law, I performed rather poorly on this quiz. The correct answers are (no peeking),

  1. False
  2. True
  3. True
  4. False
  5. True
  6. True
  7. True

If you doubt these answers are correct, read his essay (linked above) and you’ll be left with no doubts.

Hasnas successfully argues that human law (versus the laws of nature) are necessarily ambiguous and subject to interpretation, which interpretations will not only be biased by the values and prejudices of the interpreter but almost wholly determined by them.

The useful fiction the rule of law serves to make citizens submissive and obedient to state authority, whether that submission and obedience is morally justified or not. What’s more, he argues that it encourages citizens and, especially, law enforcement to do awful things because they are following the rule of law. Quoting Hasnas:

…it also turns them into the state’s accomplices in the exercise of its power. For people who would ordinarily consider it a great evil to deprive individuals of their rights or oppress politically powerless minority groups will respond with patriotic fervor when these same actions are described as upholding the rule of law.

Bringing this 1995 essay up to date, we see in the Covid response the submissive and obedient behavior of a majority of the public with regard to government mandates, no matter how irrational or ill-founded. One may argue that some of these were extra-legal but for the most part they’ve been upheld by courts (rule of law!). Even when they weren’t, most people went along because they were promulgated under the color of law. Almost all law enforcement entities enthusiastically enforced these rules, often resorting to extreme measures. This brings to mind Hannah Arendt’s banality of evil.

Ever since I can remember, the fuzziness of legal statutes and reasoning has bothered me but I didn’t understand its full implications before reading this. The Constitution, like any other piece of paper, says whatever the regime wants it to say. As Hasnas’s quiz demonstrates, there is no such thing as “clear language of the statute.” Furthermore, Hasnas argues that there shouldn’t be. His complaint is aimed at the doublethink that simultaneously understands the inherently political nature of the law while pronouncing the supremacy of the rule of law (not men).


On my first pass through this quiz whilst reading the book, I got a perfect 0/7, although while reading the questions, I reserved the caveat that they may have been posed in “academic anarchist” jargon. For example:

Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.

Well, of course, Congress may pass any whacko bill whatsoever, and Presidementia may sign it into law, but that doesn’t mean it is constitutional or legitimate under natural law. In fact, most laws, especially after 1932, are not constitutional (if you believe that matters, which I, and the Great Lysander, do not) nor legitimate.

Anarchy can be counter-intuitive. Many early anarchists, including Kropotkin, considered anarchy the end state of communism: see his “Anarchist Communism” and “Anarchist Morality” on my site. The latter presents the natural law argument against the legitimacy of top-down authoritarian law in a clear manner. (As it happens, Kropotkin came by his anarchist beliefs while living with Swiss watchmakers not far from Fourmilab.)


I think Hasnas meant that construction (may or can) to be taken to mean that those actions were consistent with the plain text of the First Amendment. By your more literal interpretation, that the action could be taken regardless of its relationship to the text, all seven statements are true. They can do what they want, Constitution be damned. Arguably, that’s what they’ve been doing from the beginning — certainly since the passage of the Alien and Sedition Acts.

Lysander Spooner nailed it, though I think he went off the rails in his critique of the secret ballot. Nevertheless, that doesn’t undermine his argument in the least. Social contract theory is a load of rubbish.


Generally, In the USA, the more rural of a region you live in, the more rule of law is observed.

Perhaps in 2022 a proper call to action regarding liberty is

Run to the hills!

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This is not responsive to the arguments made by Hasnas. If you take a few minutes to read his piece you’ll find that the examples he cites have nothing to do with the location within the US, though it may be true that some regions may be more friendly to your ideology than others. If anything, this underscores his point: the rule of law is a sham that you can use to your advantage by venue shopping. Every lawyer understands that.

By the way, how did you do on the quiz?

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I got the IRS one correct, but it might have been luck. I was thinking this may have applied to Peter Schifff’s father. My memory may be incorrect, but I think he wrote a book about taxation. Since he did not believe taxation was constitutional, he did not pay taxes and I think he won in court. I believe the book was banned.


He sees, too, that other men practice this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave

This sums up my argument for peaceful separation. Why would you want to be part of an organization where this is exactly the situation. If you “win”, you did not convince the others to agree with you. You simply hope to force your policy on them. I don’t want to force my policy on anyone. I want to live with like minded people and let those of opposite views live with their kind. I do have a character flaw. I would enjoy watching how it turned out for them.


I scored 5/7, reasoning as John said: “Well, of course, Congress may pass any whacko bill whatsoever, and Presidementia may sign it into law, but that doesn’t mean it is constitutional or legitimate under natural law.”


Welcome, jaj. What was your R> name?

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Which R? lol It’s me, JJ. I had to use three characters here.