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Rule of law can be understood first by taking apart the linguistic construction, and then by examining the political conditions under which it emerged. Society

Rule of law can be understood first by taking apart the linguistic construction, and then by examining the political conditions under which it emerged. Society is to be ruled by laws, not people. This is not trivial to accomplish. As they say, freedom isn't free, and neither is rule of law. I could not take this article seriously because it tries to understand rule of law by actually examining law, rather than by examining law's place in society. Rule of law is an appellation given by historians to describe a society, not a specific legal concept. Whatever ideological construct we want to order society by, a part of that society has to be dedicated to actually enforcing that construct. Medieval England had an innovative institution dedicated towards adjudicating disputes that came to be known as common law. Local magistrates collaborated to create a body of judicial decisions and understandings that other magistrates would respect. This freed law from the vagaries of local and national politics. The norm in the rest of the world was that both judges and the law were the sole domain of the monarch. The monarch picked the judges and the laws and that was that. What allowed English crowdsourced jurisprudence to flourish was that it was protected by England's other major innovation, Parliament. Parliament held the purse strings of the national budget, and the king had to ask Parliament for money whenever it needed to do things like raise an army. Without Parliament's approval, the king was limited to using his own land holdings to finance his affairs. In most of continental Europe, the king was free to tax the citizenry directly using the army to enforce collection. What allowed England to do this was its relative isolation from the rest of Europe, this allowed England enough safety and security to not need a standing, national army. Instead England was free to iterate on this body of law and produce a diverse array of commercial contracts that allowed people to collaborate on business ventures on a scale the world had never seen before. It also allowed England to, eventually, displace the monarchy as the ultimate seat of power in their society, replacing that role with the Prime Minister, who had to rise through the political ranks to his office. Continental Europe needed their monarchs to pursue national defense, as every European nation was at constant risk of invasion. Failure to do so resulted in getting conquered, as Spain was throughout much of the Middle Ages. Civic institutions never achieved the democratic buy-in that they did in England. I have written before that rule of law, as we consider it, is a uniquely Anglo institution, the British exported their legal innovations everywhere they went. Not having to worry too hard at appeasing their kings gave British citizens unprecedented ability to contribute to local government. Government itself was viewed as just another type of legal organization, when establishing a colony, there was a well-trodden map to governance that was established by Parliament and slowly perfected over the course of the colonial period. It is this series of innovations in the role of government in society over the course of history that provide Anglo nations with rule of law. The term was never intended to carry the connotations I often see people ascribe to it. It is not a property of law, but a property of the society using law. I see it as having been baked into the very fabric of Anglo society. I do not take seriously falling-sky pronouncements that the rule of law is under attack by whatever nefarious political actor. Certainly, we are running hard into the limitations of our legal institutions, but that's a product of their continued success. It's a resource allocation problem, not one of defense from attacks without or within. Eventually the institutions will evolve to meet those needs.

TeMPOraL 11y ago
I'm not sure I agree with you about not treating seriously the issues of rule of law being under attack. As you said, it's not a piece of legislation, it's a feature of a society. But like most things in a society, it works because people trust in it. Living under the rule of law makes me inclined to follow the rules because I know everyone else will play ball too, and those who try to gain an unfair advantage will be punished. That the system is not always efficient - hence some amount of crime and corruption - is something people generally understand and can live with. But when one sees that law gets applied unevenly, that people "dedicated to actually enforcing that construct" can't handle the issue or are themselves corrupt, when some get rich by having companies that blatantly break the law and get praised for it, one starts to wonder why they're following the rules in the first place. I see the rule of law as something that can very well break down fast when the public loses its trust in it. -- An interesting theme in your comment is how geography led to the creation of the rule of law and moving away from absolute monarchy. England could develop those because it was relatively safe, while the rest of Europe was constantly fighting fires. It's a lesson about the importance of stability - when you don't have to keep fighting for what you have, you can focus on doing something else. This is one of the reasons I don't buy the libertarian dream - having to constantly fight for your interests is a tax on attention. We progress by abstracting things away, even if imperfectly.
- vinceguidry 11y ago
  > But like most things in a society, it works because people trust in it. Living under the rule of law makes me inclined to follow the rules because I know everyone else will play ball too, and those who try to gain an unfair advantage will be punished. I can't emphasize enough that rule of law isn't just having laws or having people respect the law. It's specifically about powerful people and what they can and can't do. Every battle we can point to fought over what we traditionally call rule of law has been about the relatively less powerful clawing freedom and opportunity away from the rich. If you look at it in this regard, it's easy to see that rule of law has only evolved and grown since the 1700s. There are ever more opportunities to climb the social ladder in ever more places. We've given women the vote, we've made good strides against racism. The Magna Carta mostly only protected rich landowners from the predations of the monarchy. Britain's battles concerned the ability to enter into contracts, freedom from arbitrary, executive-driven faux-judicial action. The kinds of shenanigans that kings pulled to keep people in line and fund its operation. The poor weren't concerned because they didn't have anything to take, no way to alienate the king. When I look at the battles these days, I see nothing but steady, constant progress in attempting to allow every person the opportunity to thrive. Much of what we think of as evil now was quite common in colonial times. Only the steady march of rule-of-law improvements eradicated such abuses. Another thing that a lot of people don't realize is that the Bill of Rights had very little judicial impact until civil rights movements forced the judiciary to actually consider that just having a democratically elected republican government is not enough to safeguard minority rights. The idea of minorities having inalienable rights would have been utterly strange in colonial Britain. One had exactly as much protection from the powerful as they could afford. Rule of law was progressive in implementation. First from the king to the nobility, then from the king and nobility to the merchant class, then finally to everyone through civil rights.

TeMPOraL 11y ago

I'm not sure I agree with you about not treating seriously the issues of rule of law being under attack. As you said, it's not a piece of legislation, it's a feature of a society. But like most things in a society, it works because people trust in it. Living under the rule of law makes me inclined to follow the rules because I know everyone else will play ball too, and those who try to gain an unfair advantage will be punished. That the system is not always efficient - hence some amount of crime and corruption - is something people generally understand and can live with. But when one sees that law gets applied unevenly, that people "dedicated to actually enforcing that construct" can't handle the issue or are themselves corrupt, when some get rich by having companies that blatantly break the law and get praised for it, one starts to wonder why they're following the rules in the first place. I see the rule of law as something that can very well break down fast when the public loses its trust in it. -- An interesting theme in your comment is how geography led to the creation of the rule of law and moving away from absolute monarchy. England could develop those because it was relatively safe, while the rest of Europe was constantly fighting fires. It's a lesson about the importance of stability - when you don't have to keep fighting for what you have, you can focus on doing something else. This is one of the reasons I don't buy the libertarian dream - having to constantly fight for your interests is a tax on attention. We progress by abstracting things away, even if imperfectly.

vinceguidry 11y ago
> But like most things in a society, it works because people trust in it. Living under the rule of law makes me inclined to follow the rules because I know everyone else will play ball too, and those who try to gain an unfair advantage will be punished. I can't emphasize enough that rule of law isn't just having laws or having people respect the law. It's specifically about powerful people and what they can and can't do. Every battle we can point to fought over what we traditionally call rule of law has been about the relatively less powerful clawing freedom and opportunity away from the rich. If you look at it in this regard, it's easy to see that rule of law has only evolved and grown since the 1700s. There are ever more opportunities to climb the social ladder in ever more places. We've given women the vote, we've made good strides against racism. The Magna Carta mostly only protected rich landowners from the predations of the monarchy. Britain's battles concerned the ability to enter into contracts, freedom from arbitrary, executive-driven faux-judicial action. The kinds of shenanigans that kings pulled to keep people in line and fund its operation. The poor weren't concerned because they didn't have anything to take, no way to alienate the king. When I look at the battles these days, I see nothing but steady, constant progress in attempting to allow every person the opportunity to thrive. Much of what we think of as evil now was quite common in colonial times. Only the steady march of rule-of-law improvements eradicated such abuses. Another thing that a lot of people don't realize is that the Bill of Rights had very little judicial impact until civil rights movements forced the judiciary to actually consider that just having a democratically elected republican government is not enough to safeguard minority rights. The idea of minorities having inalienable rights would have been utterly strange in colonial Britain. One had exactly as much protection from the powerful as they could afford. Rule of law was progressive in implementation. First from the king to the nobility, then from the king and nobility to the merchant class, then finally to everyone through civil rights.