“What all this amounts to, then, is that the Rule of Law requires that administrative discretion in coercive action (i. e., in interfering with the person and property of the private citizen) must always be subject to review by an independent court which is not an instrument of, or even privy to, the aims of current governmental policy; that its review must in all such instances extend to the substance of the administrative act and not merely to the question whether it was infra or ultra vires; and that, if such a court finds that the rights of private citizens have been infringed, it will assess damages just as if the right of this person had been violated by another private citizen. This, in addition to the familiar requirements of generality, equality, and certainty of the law is really the crux of the matter, the decisive point on which it depends whether the Rule of Law prevails or not.”

— Friedrich Hayek

Lecture III. The Safeguards of Individual Liberty - 19. Fundamental Rights and the Protected Private Sphere
1940s–1950s, The Political Ideal of the Rule of Law (1955)

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Friedrich Hayek 79

Austrian and British economist and Nobel Prize for Economic… 1899–1992

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“In 1977 the black-out was lifted. It was done by R. S. C., Ord. 53. The curtains were drawn back. The light was let in. Our administrative law became well-organised and comprehensive. It enabled the High Court to review the decisions of all inferior courts and tribunals and to quash them when they went wrong. And what is more, it enabled the High Court to award damages and grant declarations. No longer is it necessary to bring an ordinary action to obtain damages or declarations. It can all be done by judicial review. This new remedy (by judicial review) has made the old remedy (by action at law) superfluous.”

Alfred Denning, Baron Denning (1899–1999) British judge

O'Reilly v. Mackman, [1983] 2 A.C. 238.
Judgments

“In the administration of justice, whether by a recognised legal Court or by persons who, although not a legal public Court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biassed.”

William Brett, 1st Viscount Esher (1815–1899) British lawyer, judge and politician

Allinson v. General Council of Medical Education and Registration (1894), L. R. [1894], 1 Q. B. p. 758.

“They operate by administrative discretion and authority, not the rule of law: There is no legislature, no group lawmaking body.”

Charles A. Reich (1928–2019) American lawyer

The Liberals' Mistake (1987)
Context: Liberals placed an unreasonable amount of faith in large institutions: unions, foundations, big government, large corporations, and universities. These institutions are based on principles that are antithetical to democracy. They are not democratic, they are hierarchical: Someone is at the top and everybody else is at the bottom. Their policies are not made democratically, they are made at the top. These institutions are also not egalitarian. They operate by administrative discretion and authority, not the rule of law: There is no legislature, no group lawmaking body.
The individual in the large organization does not have the kind of constitutional rights that an individual in the society at large has. There are no protections of autonomy and free speech. Employees can be fired for many reasons. We need to constitutionalize large organizations to protect the people within them, to ensure that they can be politically outspoken.

“The Court must not depart from those rules which have been considered necessary for the due administration of justice.”

Henry Bickersteth, 1st Baron Langdale (1783–1851) British lawyer

Symonds v. The Gas Light and Coke Co. (1848), 11 Beav. 285.
Quote

“Since the management of industry by individuals necessarily implies private property, and since competition is in reality merely the manner and form in which the control of industry by private property owners expresses itself, it follows that private property cannot be separated from competition and the individual management of industry. Private property must, therefore, be abolished and in its place must come the common utilization of all instruments of production and the distribution of all products according to common agreement – in a word, what is called the communal ownership of goods.”

Friedrich Engels book Principles of Communism

Principles of Communism (1847)

“Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exericised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.”

John Marshall (1755–1835) fourth Chief Justice of the United States

Osborn v. Bank of the United States, 22 U.S. (9 Wheaton) 738, 866 (1824)

“In no administration can there be perfect equality of action and uniform satisfaction rendered by all. But this government must be preserved in spite of the acts of any man or set of men.”

Abraham Lincoln (1809–1865) 16th President of the United States

1860s, Speeches to Ohio Regiments (1864), Speech to One Hundred Forty-eighth Ohio Regiment (1864)
Context: It is vain and foolish to arraign this man or that for the part he has taken, or has not taken, and to hold the government responsible for his acts. In no administration can there be perfect equality of action and uniform satisfaction rendered by all. But this government must be preserved in spite of the acts of any man or set of men. It is worthy your every effort. Nowhere in the world is presented a government of so much liberty and equality. To the humblest and poorest amongst us are held out the highest privileges and positions. The present moment finds me at the White House, yet there is as good a chance for your children as there was for my father's.

“And the court did not, at all, make any distinction between whether or not a person is Shi’ite or Sunni. They are reviewing a crime, and a procedure, and a trial, and a sentence, and carrying out the sentence.”

Mohammad bin Salman (1985) Saudi crown prince and minister of defense

2016-01-06, on the execution of Nimr Baqir al-Nimr. Interview with Muhammad bin Salman, The Economist

“I have always thought it highly injurious to the public that different rules should prevail in the different Courts on the same mercantile case. My opinion has been uniform on that subject. It sometimes indeed happens that in questions of real property Courts of law find themselves fettered with rules, from which they cannot depart, because they are fixed and established rules1; though equity may interpose, not to contradict, but to correct, the strict and rigid rules of law. But in mercantile questions no distinction ought to prevail. The mercantile law of this country is founded on principles of equity; and when once a rule is established in that Court as a rule of property, it ought to be adopted in a Court of law. For this reason Courts of law of late years have said that, even where the action is founded on a tort, they would discover some mode of defeating the plaintiff, unless his action were also founded on equity; and that though the property might on legal grounds be with the plaintiff, if there were any claim or charge by the defendant, they would not consider the retaining of the goods as a conversion.”

Sir Francis Buller, 1st Baronet (1746–1800) British judge

Tooke v. Hollingworth (1793), 5 T. R. 229.

“I believe that the early success and reputation of Carlyle's French Revolution, were considerably accelerated by what I wrote about it in the Review. Immediately on its publication, and before the commonplace critics, all whose rules and modes of judgment it set at defiance, had time to preoccupy the public with their disapproval of it, I wrote and published a review of the book, hailing it as one of those productions of genius which are above all rules, and are a law to themselves.”

John Stuart Mill book Autobiography

Source: Autobiography (1873)
Source: https://archive.org/details/autobiography01mill/page/217/mode/1up p. 217

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Friedrich Hayek 79

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