The Rule of Law

Nico Jacobellis (that's a pseudonym, in case you didn't know — so far as I know, the author has never operated a theater) has a post at First Movers titled " Why Legislatures May Fail to Provide for the Rule of Law: A Response to Tamanaha." That post was written partly in response to a blog post by Brian Tamanaha titled "Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely)." Nico describes a way of viewing the development of the common law as a "spontaneous order," a "product of human action but not of human design." I haven't yet read the Hayek or Leoni works on which, according to Nico, that view is based. But I was initially taken aback by these statements in Nico's closing paragraph:

Courts can apply law made by the legislature just as they can apply law made as a spontaneous order, but when the law is changed by decree and not through a spontaneous diffuse process we are left with "law" that is not consistent with the Rule of Law. This is because the Rule of Law means law based on settled expectations, not law based on what a majority can shove through the legislature. In this way, Tamanaha's goal of tying modern liberalism (which, of course, requires legislative action) to the Rule of Law fails.

My initial reaction was that reducing the concept of "Rule of Law" to law based on settled expectations was too narrow a treatment of that concept. I still think that may be the case, but before getting to that point it seems worth asking what is meant by the phrase "rule of law."

Why fret over the concept of the "rule of law?" The proponents of concepts of the rule of law have used those concepts, among other purposes, as tests of the legitimacy or binding value of laws or legal systems, and it intertwines with notions and problems of bindingness that occupied the attention of theorists in the 20th Century (and still). So saying that some kind of law or legal process is inconsistent with the rule of law could be a harsh criticism of the kind of law or process in question.

The articulations of the concept of "rule of law" that I'm most familiar with are those reflected in this introductory post on the topic by Larry Solum, particularly that of John Rawls. Those sorts of understandings of the rule of law would appear to assign as much legal value to legislation as to law derived from custom, so long as the legislation is enacted and enforced in certain ways. Nico Jacobellis's description seems to rule that view out and to assert that legislation has, in some meaningful way, less value than law derived from custom and (accurately, one hopes) articulated by judges.

Brian Tamanaha, in his working paper "How an Instrumental View of Law Corrodes the Rule of Law" (SSRN), refers to Rawls's concept of the rule of law as a "formal" understanding of the concept "because it focuses only on the formal characteristics of law rather than on its content" (p. 23). Tamanaha reports that in the past, the view that the common law had more legal value, legitimacy or bindingness than statutes was a lot more common than it is today (pp. 9-12). Tamanaha's paper has a number of interesting things to say about changes in the notion of "rule of law" over time. I haven't finished reading his paper yet (let alone his book on the same topic), so I must defer for a while further discussion of what "rule of law" means to Tamanaha.

More to follow. But first, a question: Could we live in a complex and rapidly changing world while relying entirely on long-standing customs for our laws? As you might have guessed, my hunch is that the answer is "no," in which case, we must consider other criteria of legitimacy and bindingness, dispose of the notion that "the rule of law" encompasses or comprises part of those criteria, or reject entirely that there are such criteria.