Rule of Law - 1

In his excellent book, Design for Liberty: Private Property, Public Administration, and the Rule of law, Richard Epstein begins his discussion with a cite to Lon Fuller, The Morality of Law, in which he lists some components he does not not call components of the rule of law, but which is widely regarded as such:

Eight Routes of Failure for any Legal System
  1. The lack of rules of law, which leads to ad hoc and inconsistent adjudication.
  2. Failure to publicize or make known the rules of law.
  3. Unclear or obscure legislation that is impossible to understand. [Or difficult for most people to agree on the meaning of.]
  4. Retroactive legislation.
  5. Contradictions in the law.
  6. Demands that are beyond the power of the subjects and the ruled.
  7. Unstable legislation (ex. daily revision of laws).
  8. Divergence between adjudication/administration and legislation.

These are a good start, but we can identify more, and better organize them, in this first part of a discourse on the topic.

Fuller's formulation addresses the need for internal consistency and predictability, but omits the critical component, that it provide for the reasonable protection, and accessible remedies for violations, of the natural and social rights of the people, whether individuals, minorities, or majorities. With that in mind, we can begin to prepare our own list.

Specifications for a Rule of Law
  1. Laws that apply uniformly to everyone, including lawmakers, administrators, and adjudicators, except as individuals may earn different treatment, consistent with the general good.
  2. A written constitution of government that is consistent with the superior constitutions of nature, society, and the state (understood as society with dominion over a well-defined territory), from which all other laws must be derived, and with which such derivative laws, administration, and adjudication must be consistent.
  3. Institutional structures and procedures that allow orderly and competent notice, deliberation, and decision of legal issues, both for the society as a whole and political subdivisions of it, and for individual cases, in which all stakeholders are represented.
  4. Affordable access to remedies for anyone whose rights have been violated or are threatened, and for anyone seeking to protect the rights of others.
  5. Establishment of the right to a presumption of nonauthority.
  6. Establishment of the right to the means to supervise public agents and hold them accountable.
  7. No contradictions among laws or the administration or adjudication of them or of cases involving private matters.
  8. Reasonable and impartial discretion consistent with general principles of law, not used abusively or to redistribute.

These will be further discussed in subsequent installments of this series.

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