I suppose a world without law at all would be one in which people habitually defect on the Prisoner’s Dilemma. Even when it’s the least ‘true’ a PD can be and still be a PD (so, iterated, with reputational incentives, all that stuff). There are no Schelling points, and thus no coördination: Nash equilibria and Moloch for all.
The “rule of law”, perhaps, is a list of particular properties of the law (collection of Schelling points): that they contain no proper nouns, for example (the same law binds the King), that they do not discriminate on irrelevant/prejudicial grounds, etc. That is to say, that the law is neither arbitrary nor capricious (I will hereonin refer to this synecdochically as: the law is just). Of course, a society’s beliefs about justice will be reflected in its informal law; thus a society will typically only see itself as lacking the rule of law inasmuch as its legislation, as enforced, is contrary to the principles of its informal law.
This is in contrast with your definition, under which (if I understand correctly) a society without the rule of law is one where enforcement doesn’t follow the written legislation. Of course, the patterns in this mismatch are themselves part of (my-model) law; so if everyone agrees that a piece of legislation (say, the Fugitive Slave Law) is unjust and the refusal to enforce it is just, then the society has (or believes it has) my-rule-of-law but does not have your-rule-of-law (unjust legislation is not enforced).
Conversely, if the legislation is enforced even though most people believe it’s unjust, then the society has your-rule-of-law but not (it believes) my-rule-of-law (unjust legislation is enforced).
If just legislation is enforced, then the society has both kinds of rule of law (since successful enforcement of legislation makes it law). If the legislation is just but selectively enforced in a way that is unjust, then the society has neither (because the selective enforcement creates law that is unjust).
Appeals to justice, and hence arguments based on my-rule-of-law, are subjective. But I would argue (had I not spent long enough on this response already) that justice itself is objective, even if we have not yet discovered all of its principles — and thus the same is true of my-rule-of-law.
This is in contrast with your definition, under which (if I understand correctly) a society without the rule of law is one where enforcement doesn’t follow the written legislation. Of course, the patterns in this mismatch are themselves part of (my-model) law; so if everyone agrees that a piece of legislation (say, the Fugitive Slave Law) is unjust and the refusal to enforce it is just, then the society has (or believes it has) my-rule-of-law but does not have your-rule-of-law (unjust legislation is not enforced).
In this hypothetical world where there is a shared understanding that something like the Fugitive Slave Law is unjust and ought not to be enforced, but for some reason the people sharing this understanding, can’t be bothered to rewrite the law, what’s going on? Why are there written laws at all in that world? What’s their role in coordination?
I’m not saying correspondence between written and enforced law is identical with justice; I’m saying that if there are written laws, and they do not correspond to the law as enforced, then this is symptomatic of a lack of rule of law. In particular, it implies that the written law is meant to misinform, most likely in order to prevent the true norms from becoming common knowledge, which only makes sense if the enforcers intend to apply official standards unevenly in order to benefit from the information asymmetries they set up.
I suppose a world without law at all would be one in which people habitually defect on the Prisoner’s Dilemma. Even when it’s the least ‘true’ a PD can be and still be a PD (so, iterated, with reputational incentives, all that stuff). There are no Schelling points, and thus no coördination: Nash equilibria and Moloch for all.
The “rule of law”, perhaps, is a list of particular properties of the law (collection of Schelling points): that they contain no proper nouns, for example (the same law binds the King), that they do not discriminate on irrelevant/prejudicial grounds, etc. That is to say, that the law is neither arbitrary nor capricious (I will hereonin refer to this synecdochically as: the law is just). Of course, a society’s beliefs about justice will be reflected in its informal law; thus a society will typically only see itself as lacking the rule of law inasmuch as its legislation, as enforced, is contrary to the principles of its informal law.
This is in contrast with your definition, under which (if I understand correctly) a society without the rule of law is one where enforcement doesn’t follow the written legislation. Of course, the patterns in this mismatch are themselves part of (my-model) law; so if everyone agrees that a piece of legislation (say, the Fugitive Slave Law) is unjust and the refusal to enforce it is just, then the society has (or believes it has) my-rule-of-law but does not have your-rule-of-law (unjust legislation is not enforced).
Conversely, if the legislation is enforced even though most people believe it’s unjust, then the society has your-rule-of-law but not (it believes) my-rule-of-law (unjust legislation is enforced).
If just legislation is enforced, then the society has both kinds of rule of law (since successful enforcement of legislation makes it law). If the legislation is just but selectively enforced in a way that is unjust, then the society has neither (because the selective enforcement creates law that is unjust).
Appeals to justice, and hence arguments based on my-rule-of-law, are subjective. But I would argue (had I not spent long enough on this response already) that justice itself is objective, even if we have not yet discovered all of its principles — and thus the same is true of my-rule-of-law.
In this hypothetical world where there is a shared understanding that something like the Fugitive Slave Law is unjust and ought not to be enforced, but for some reason the people sharing this understanding, can’t be bothered to rewrite the law, what’s going on? Why are there written laws at all in that world? What’s their role in coordination?
I’m not saying correspondence between written and enforced law is identical with justice; I’m saying that if there are written laws, and they do not correspond to the law as enforced, then this is symptomatic of a lack of rule of law. In particular, it implies that the written law is meant to misinform, most likely in order to prevent the true norms from becoming common knowledge, which only makes sense if the enforcers intend to apply official standards unevenly in order to benefit from the information asymmetries they set up.