The Myth of the Rule of Law (1995)
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&#x27;t free, and neither is rule of law.<p>I could not take this article seriously because it tries to understand rule of law by actually examining law, rather than by examining law&#x27;s place in society. Rule of law is an appellation given by historians to describe a society, not a specific legal concept.<p>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.<p>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&#x27;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&#x27;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.<p>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.<p>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.<p>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.<p>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&#x27;s a product of their continued success. It&#x27;s a resource allocation problem, not one of defense from attacks without or within. Eventually the institutions will evolve to meet those needs.