Creating the Statutory State: The Implications of a Rule of Law Standard in American Politics

The rise of the modern state has been accompanied by a decline in the importance of statutory law to the operation of Western democratic governments. Two of the strongest critiques of the modern state and of this decline in statutory law have come from Friedrich Hayek and Theodore Lowi. Each has argued that only the restoration of a rule of law can ensure the continued survival of democratic societies. Their indictments of the modern state suggest a standard by which legislative policy alternatives might be evaluated. This article develops such a standard, adapted specifically for use in American politics, and uses it to analyze legislative behavior in the House of Representatives under four different presidential administrations. The development and application of the rule of law standard provides a critique of American government from the Hayek-Lowi perspective and reveals a basic incompatibility between the imposition of a rule of law and the establishment of a responsible-party government system.