Psychoanalysis and the Rule of Law

There are two basic principles regulating social relations: status and contract. The family is a typical status relationship; the economic bond between buyer and seller is a typical contract relationship. Status relations are characteristically hierarchical, as between father and son; the inferior member of such a pair has little or no power (physical or legal) to restrain his more powerful partner. In contrast, contractual relations tend to be equalitarian, as in the relation between two businessmen: each commands a measure of power to compel the other to fulfill his promises. These principles apply not only to relations among individuals, but also to those between the state and the citizen, the court and the individual. In the judicial and political context, relations based on status constitute the principle known as the Rule of Man; those based on contract, the Rule of Law. There is a basic difference between these two principles: in the former system one man's activity is regulated directly by the will of another; in the latter, individual conduct is regulated by abstract rules applicable equally to all. The first arrangement maximizes the coercion of some by others; the latter minimizes it.

According to F. A. Hayek,

Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principle known as the Rule