Being the oldest and the toughest, my sister Fiona was queen of the kids in our neighbourhood. Among her reginal prerogatives was deciding the rules of the games we played.

She was not very good at it. For, besides being tough, she was fair — at least, in the “social justice” sense of the word. She wanted victory to be shared out equally among us children. If Robbie Stone had won several games in a row — which, being a fast runner, he often did — Fiona would change the rules so that speed conferred less advantage.

Of course, under the new rules, some of us would still win more than others. So Fiona not only changed the rules frequently but also designed them to give the referee (herself) great discretion in deciding which actions were allowed. The athletic Robbie often fell foul of her vague injunction against competing “too aggressively”.

Long before I read Friedrich von Hayek, my sister taught me that

you cannot administer social justice while preserving the rule of law. She also taught me the price of undermining it.

When the players (citizens) cannot know in advance what they are permitted to do, they divert their efforts from playing the game to lobbying the referee for favourable decisions. And some stop playing altogether. Robbie's frustrations first led him to slack off and eventually caused him to migrate from our gang. Fiona's just distribution of victory came at the cost of tyranny, corruption and a poor standard of play. It is fortunate our games did not produce our livelihoods.

Fifty years after Hayek wrote The Road to Serfdom, the Labour Party gave up on running the economy according to my sister's model. They agreed that resources should be allocated not at the discretion of the authorities but by voluntary transactions between individuals acting in accordance with a set of clear and stable laws. In other words, they rejected the command

economy in favour of the market economy.

Apart from commerce, however, Labour politicians have not learnt Hayek's lesson. On the issues that interest them most — no longer the ownership of the means of production or the distribution of wealth, but what we might call the ethos of the population — they are busily undermining the rule of law.

They are doing this in two ways. One is to pass laws so vague that you cannot know, prior to the decision of the relevant authority, whether your actions are lawful. Suppose a Baptist preacher tells his congregation that God sends atheists to Hell. Does this violate the new law against inciting religious hatred? The preacher cannot know before

his sermon. He must wait to see how the authorities feel about it afterwards.

The same goes for the other hatreds we must not incite and for much anti-discrimination law. When the boss stands up at the Christmas party and tells the one about the bishop and the actress, is he breaking the law? Is he creating a “hostile environment” for his female employees? He will know only when the employment court makes its ruling.

This erosion of the rule of law is not the avoidable consequence of poorly drafted legislation. It is impossible to state clearly what constitutes a hateful remark, a hostile environment or neglectful parenting. If the Government wishes to rule out such things, it can only pass vague laws and delegate the power to interpret them to its agents.

It must replace the rule of law with “the rule of men”. Knowing whether your actions make you liable for punishment is not a matter of reading the legislation but of predicting the sensibilities of the authorities.

And not just towards your actions but towards you. Despite their risky assertions, polemical atheists and evangelical preachers have little to fear from the religious hatred law because the authorities who wield it at their discretion have different targets in mind, such as BNP politicians and Islamic radicals. Justice may be blind but the Home Secretary is not.

The second erosion of the rule of law comes from the Government's open contempt for the idea that the law defines the scope of the Government's interest in you, that you can be on the wrong side of the Government only by being on the wrong side of the law. For example, it is not illegal to have fat children. Yet we know that the Government disapproves of parents who do, since it sends them letters pointing out their children's obesity. “We've got our eye on you,” they insinuate. To which a free man should respond: “If I have committed a crime, arrest me; otherwise, leave me alone.”

But this generation of Labour politicians cannot leave us alone. For they are convinced that they have attained a new level of moral insight and feel duty-bound to improve us. There is no topic on which the Government does not have some recommendation for how we should behave: from what we say about homosexuals, to what we eat, to how we raise our children. They admonish and cajole and “educate” and hint at impending penalties for those who do not fall into line.

The trend is unlikely to reverse. The idea that all of the Government's demands on us should be stated in law has lost support, even from its most likely sources. In a recent editorial defending Gordon Brown's Britishness campaign, The Spectator claimed that “immigrants must do more than simply pay taxes and obey the law”. We must also do what Gordon Brown tells us is British! Britain may no longer be a command economy but it is becoming a command society.

Jamie Whyte is the author of Bad Thoughts: A Guide to Clear Thinking

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