Property Rights and the Rule of Law: Classical Liberalism Confronts the Modern Administrative State

The rule of law sets out a set of general prescriptions of generality, neutrality, consistency, prospectivity and simplicity that are thought to be appropriate for all sound legal systems. Formally, there is no necessary connection between the belief in the rule of law and a system of limited government with strong rights of property and contract. It is often claimed therefore that the modern administrative states can introduce extensive forms of social control and redistribution in ways that do not offend rule of law principles. This essay takes issue with that content and argues that the high levels of discretion that are routinely involved in the administrative state force it to abandon these rule of law constraints. The modern synthesis thus leads to lower levels of both freedom and prosperity than the classical liberal synthesis in which the rule of law and private property work together in a harmonious fashion.

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