Essay:Rule of law

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The rule of law is the application of laws consistently, without showing favoritism not authorized by said law, or otherwise deviating from it. The rule of law is often a criterion used in judging whether a country has good government or not. It is a principle that values procedural fairness over substantive fairness. In some cases, for example, even when a defendant is known to be guilty, his case will be dismissed on the grounds that the government violated the law by gathering evidence in ways that violated his rights against unreasonable searches and seizures. The reasoning behind such decisions is that upholding constitutional law is more important than upholding the statute that the criminal violated, which is of lesser authority.

There is some wisdom behind the concept of the rule of law, in that markets depend upon having some degree of certainty and predictability in their legal environment; otherwise, businesspeople will often lack the necessary confidence to impel them to invest. The concept of "rule of law", however, could be construed as implying governmental sovereignty. Libertarians would generally prefer the application of a principle of adherence to contracts voluntarily agreed to by all parties involved, and a respect for natural law, including the right of every person to be able to enjoy his life, liberty and property free of forcible interference from unwelcome interlopers.

In a freer market, there would be additional safeguards against abuse besides judges setting the guilty free (which in any event, is a procedural safeguard that has been greatly eroded by various appellate court precedents; for example, those stating that a person need not be informed of his right to refuse a search[1]); people could also more freely move from one jurisdiction to another and make binding contracts with new sovereigns. Sovereigns would have an incentive to abide by the terms of their contracts in order to maintain a good reputation. To some extent, such a system already exists; the relations between citizens and states are not unlike those between borrowers and credit card companies, with the latter reserving the right to amend the contract at any time, as long as notice is provided and the other party is given the opportunity to withdraw from the contract by completely severing the business relationship.

There are, of course, switching costs involved in such transactions. But a customer who incurs losses for reasons he deems to be unfair is quite likely to publicly denounce the company; political commentary often consists of people criticizing their own governments for what they perceive as unfair behavior. Such commentary is taken into account by prospective immigrants, also known as potential taxpayers.

Arguably, a large part of the reason why this consumer choice does not have more of an effect on government is that governments, especially democratic governments, are typically organized as nonprofit entities; and thus, those in control of those governments have less of an incentive to take measures that will attract and retain customers. Also, some countries, such as the United States, have few competitors who offer a better system of government. As bad as the U.S. government may be, people will still tend to move there, and stay there, unless there is a better alternative.

Nathan Smith argues that 'we shouldn’t speak as if “rule of law” is an unqualified good. It depends on the content of the laws. If it’s a choice between a more chaotic situation and a more coercive situation, the former is usually better.'[2]


  1. Schneckloth v. Bustamonte, 412 U.S. 218 (1973), Ohio v. Robinette, 519 U.S. 33 (1996)