What is the opposite of the rule of law?
Maybe your first thought is “arbitrary dictates by the ruler.” But my first thought is violence and banditry.
If you take my point of view, then in order to have rule of law, you need to have legitimacy. That is, people need to accept the authority of the legal system, whatever they perceive it as being.
What this implies is that the rule of law is something of a consensual hallucination. That is, whatever people tacitly agree is lawful, is lawful.
This gets back to the question of the role of legislation vs. common law. If people readily accept that law enacted by legislation is lawful, then even though legislation may resemble the arbitrary dictates of the ruler, it serves the rule of law. The problem with arbitrary dictates is that they undermine the legitimacy of law in the eyes of people (at least in the eyes of modern people). Similarly with legislative excess.
Possibly related: Dani Rodrik writes,
Markets need regulatory and legitimising institutions to thrive – consumer-safety rules, bank regulations, central banks, social insurance and so on. When it comes to providing the arrangements that markets rely on, the nation-state remains the only effective actor, the only game in town. Our elites’ and technocrats’ obsession with globalism weakens citizenship where it is most needed – at home – and makes it more difficult to achieve economic prosperity, financial stability, social inclusion and other desirable objectives. As we’ve all seen, elite globalism also opens political paths for Right-wing populists to hijack patriotism for destructive ends.
UPDATE: contra Rodrik, here is Don Boudreaux.
When it comes to providing the arrangements that markets rely on, the nation-state remains the only effective actor, the only game in town
Perhaps not. Murray Rothbard has argued otherwise, e.g.: “The role of freely competitive judiciaries has, in fact, been far more important in the history of the West than is often recognized. The law merchant, admiralty law, and much of the common law began to be developed by privately competitive judges, who were sought out by litigants for their expertise in understanding the legal areas involved.2 The fairs of Champagne and the great marts of international trade in the Middle Ages enjoyed freely competitive courts, and people could patronize those that they deemed most accurate and efficient.” (https://mises.org/library/defense-services-free-market)
Concerning “legitimacy” of law: there are two distinctly different sources of legitimacy. An act can be “wrong in or of itself” (malum in se) or it can be merely proscribed by authority (malum prohibitum). Thus two kinds of law: that which is in inherent in human behavior and may be “discovered”, and that which is prescribed by authorities, often arbitrarily. (See Bruno Leoni’s Freedom and the Law.)
“Rule of law”, or “legitimate authority” is a baseline moral impulse. Like most moral thinking, it feels externally true. For example, it just seems true that parents have legitimate authority over their children, and we all pretty much act that way most of the time. Obviously nobody dictates this, it’s just part of our nature to accept parental authority as “legitimate”. To say something is a “true” source of legitimacy is to wade into the thorny debate about moral realism.
I think “consensual hallucination” is mostly accurate, but the fact that our brains are wired for this concept is significant, as it explains why humans are so prone to rule making hierarchies (families, sports, workplaces, civil government, religion, etc)
The opposite of “Rule of Law” may be unpredictability. If as a potential entrepreneur, I know the likely legal results of something, I can plan and have a better likelihood of a good outcome. With hard-to-predict law, these beneficial emergent outcomes don’t happen.
You are confusing the rule of law with law and order. The rule of law is that law is supreme over political, economic, familial, clan, religious or other ties. The “arbitrary dictates by the ruler” is one way to vacate the rule of law, but so is having different systems of law for different classes of people.
It should be noted that statute law, which seems to be what you are calling the “law” is a very recent concept. Historically, the law was custom and practice. The popular lawmaking by ruler or legislative body is new. Most historical codes of particular rulers was just a codification of current custom.
“How many of us have ever formulated in our minds what law means? I am inclined to think that the most would give a meaning that was never the meaning of the word law, at least until a very few years ago; that is, the meaning which alone is the subject of this book, statute law. The notion of law as a statute, a thing passed by a legislature, a thing enacted, made new by representative assembly, is perfectly modem, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have assumed in our minds the main bulk of the concept of law as we formulate it to ourselves. I guess that the ordinary newspaper reader, when he talks about ‘laws” or reads about “law,” thinks of statutes; but that is a perfectly modem concept; and the thing itself, even as we now understand it, is perfectly modem. There were no statutes within the present meaning of the word more than a very few centuries ago
……
“Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of “isms” and reforms — full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States — the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow. ”
–Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute, Frederic Jesup Stimson (1910)
1. Best to see “consensual hallucination” (CH) as merely a possibility among other alternatives (among which CH social rules can exist in combination). So, a counterexample to “consensual hallucination” could be some kind of foreign occupation regime which is both “illegitimate” in the minds of the ruled population (for example, enforcing prohibition of certain local religious practices), but also predictable and generative of general order. People may acquiesce to the law and the system and obey out of being overwhelmed by the power imbalance, but they would stop doing so if the occupation forces left.
2. Rodrik seems to have written this essay as if he was given the assignment to “defend nationalism” but his heart wasn’t in it. He criticizes intellectual globalism, but ends up making a “give me globalism, just not yet,” case, since we are still waiting for those effective global governance institutions.
He is right about the split between developed country elites who tend to be more uniformly anti-nationalist, and local electorates which have a strong attachment to nationalist sentiments, and the fact that this split has led to policies (e.g., immigration policies) which are generating serious political consequences and push-back, opening up an obvious opportunity for nationalist parties.
He is wrong about the real foundations of the “globalist worldview”, setting up a straw man no one insists upon, then knocking it down.
He says, “If economic policies fail, they most often do so for domestic not international reasons.” Does he mean “good” economic policies? Because try this instead: “If economic policies fail, they most often fail because they were bad policies, that would have failed for a nation had they been implemented domestically, or for everyone, has they been implemented internationally.” Is what is going on in, say, Venezuela because of “domestic reasons” or “universal reasons” that would ruin any economy anywhere?
Rodrik has gone on before about the value of those euphemistic “institutions”, but we actually have a good test case of institutions theory recently, and it doesn’t look very good. We are hearing a lot about Puerto Rico after the devastation of Hurricane Maria, and how it was already in really bad shape before the storm. But Puerto Rico has had just about as many institutions of American government as it possible for any slightly-foreign, Spanish-speaking place to have for a long, long time. It obeys federal law, gets generous federal subsidies, has elections, courts, local offices of all the federal agencies, military bases, etc. Puerto Ricans are American citizens, have open borders with the rest of the U.S., and so forth.
And yet all those institutions don’t seem to have done the island much good in terms of convergence: it always seems to trail the rest of the US by the same proportion economically, consistently lags much more educationally, local governance is poor quality, and they are effectively bankrupt – though this could also be said for some of the worst mainland states (Connecticut) and cities (Chicago). They have been going through the motions, but not getting the results.