The Myth of the Rule of Law

Martin Elson

The Massachusetts Constitution of 1780 promised “a government of laws and not of men,” and the phrase has stood ever since for the idea that power answers to rules rather than to whoever holds it. Two pieces, written thirteen years apart, argue that the promise cannot be kept as stated: a 1995 law-review article by John Hasnas, and a 2008 blog essay by the writer known as brainpolice. Both are worth reading. Both go further than their evidence. What survives the overreach is sharper than either piece alone.

The core of their argument holds. Law does not enforce itself. People write it, read it and enforce it, follow it or ignore it, and whoever holds the monopoly on writing and enforcing it is supposed to be bound by it, yet in deciding what it says stands above it.

A piece of paper

brainpolice starts from the republic’s promise and asks who keeps it. Laws are written and enforced by people, and those who hold the monopoly on law can interpret it, ignore it or rewrite it. A constitution is one more document in their hands; as he puts it, “A piece of paper isn’t going to restrain a mob.” Most people, he adds, refrain from murder and theft for ethical and social reasons, not because a statute forbids it, and no ruler can know or control a whole society.

Two of his claims go further than the evidence. He says criminals offend regardless of the law, out of high time preference. Harsher punishment does deter little, which supports him, but the likelihood of being caught does deter, so law is not idle. And he says a constitution does nothing to restrain power. Most constitutional rights, free speech and the ban on torture among them, show no link to better practice, which again supports him; but rights with organized groups behind them, such as unions, parties and religion, do slow repression. Paper alone does little. Organized people holding it do something.

The essay ends by treating natural law as the one law that rules on its own. That is an ought presented as found rather than built, and the case against it is made in The Unfinished Exclusions. The rest of the argument does not need it.

The myth

Hasnas makes the case at length and with cases. His thesis is that “there is no such thing as a government of law and not people.” He opens with a quiz on the First Amendment, then follows two law students, Arnie and Ann, from contracts class to the appellate bench. Each time, both find a respectable precedent for the result they already favored: Hurley v. Eddingfield against Cotnam v. Wisdom on obligation without agreement, Sherwood v. Walker against Wood v. Boynton on mistake, Davis & Co. v. Morgan against Schwartzreich v. Bauman-Basch on new promises. Even the plainest text, “Congress shall make no law,” gets read to fit prior beliefs.

He goes on to say that because the law contains contradictory rules, a logically sound argument exists for any conclusion. That is the one step that fails as stated. Contradictory premises cannot all be true, so they yield valid arguments, never sound ones. What holds is narrower, and strong enough: the law often supplies competing premises that are each legally valid, and nothing in the law ranks them. Choosing between them is an ought claim, whether the judge makes it before deciding or supplies it after.

The cases also overstate the problem. Litigated cases are the hard ones; most legal questions never reach a judge, because the answer is predictable enough that nobody pays to fight it. Courtroom disagreement is a sample of the law’s open edges, not of the whole.

What the myth is for

The belief in neutral law, Hasnas argues, is what lets people accept, and even cheer, state power exercised in law’s name. His example of law as politics is the coal-scrubber requirement in the 1977 Clean Air Act amendments, which favored the high-sulfur coal of West Virginia, home of Senator Robert Byrd. (Hasnas has Byrd chairing Senate Appropriations at the time; in 1977 he was Majority Leader, and first chaired Appropriations in 1989.)

The strongest answer to Hasnas is that few defend “a government of laws and not of men” literally. The serious defenses treat the rule of law as a matter of degree. Lon Fuller listed eight marks of legality: rules that are general, public, prospective, clear, consistent, stable, possible to obey, and applied as declared. A legal order meets them more or less well, and a worse one is worse in ways people can feel. Brian Tamanaha treats the rule of law as a family of thinner and thicker ideas, and takes the indeterminacy challenge head on. Neither denies that judges choose. Both deny that choosing makes the rules worthless.

Exit, not determinacy

Hasnas’s remedy is to end the state’s monopoly on law. A parable about Monosizea, a country where the state makes every shoe in one size, shows how hard it is to imagine law supplied any other way, and arbitration, mediation and older non-state courts suggest what the other way might look like.

But a market in law is not more determinate. Private arbitrators read vague contracts just as judges read vague statutes, and they choose between valid premises too. The case for ending the monopoly does not rest on getting rid of choice. It rests on exit: whether the people bound by a ruling had a hand in the arrangement, and whether they can leave it. A forced arbitration clause, written by one side and imposed on the other, fails that test as surely as a court does. It is a monopoly in private form.

That is where the myth joins the rest of this site. “It’s the law” works the way “he agreed” does in The Unfinished Exclusions: a status answer that closes the question of what is being done, and whether it is all right. An ought admitted as built can be questioned, tested and rebuilt; one presented as found, in nature or in the law, can only be obeyed. What is contested is which ought: what is decent or right, or “stay out of my business,” the cheapest ought to defend because it takes nothing and leaves people be. Both answer to the same floor, no one used as an input and decency owed rather than earned, and to the same procedure: arrangements made by the ones whose lives they are. The economics that fit pass the same checks. A contract that claims to move what cannot move, a person’s acting, fails whether a state or an employer writes it.

So the question to put to any legal order, public or private, is not whether it follows its rules. It is who wrote the arrangement, and whether those living under it can leave. More on that in Law Without a Monopoly.

Every argument met here stops somewhere it does not defend. Hasnas stops at the market in law, brainpolice at natural law, and the rule of law itself at “it’s the law.” Even Gary Chartier, who defends law without the state from the left, stops at basic goods he calls self-evident. Tibor Machan, who co-edited the volume where Hasnas argues for anarchy, stops at what is “normal” for humans, and with it at the species line (Property, Labor and Equality). Naming the stopping point is not contrarianism. What passes the checks stays: Hasnas’s paired cases, Fuller’s degrees of legality, Chartier’s goods held as built rather than found. What goes is only the part that claims to be beyond testing.

Sources and further reading

The two pieces discussed, plus the work used to test them.

A note on sources. Both pieces are summarized and briefly quoted here for commentary and education; each is credited and linked to its original, and all rights remain with the authors. Hasnas wrote in 1994, and a few of his asides, on that year’s health-insurance debate and on the makeup of the bench, are of their time. He has since developed the argument further, most fully in Common Law Liberalism (2024). He was then an assistant professor at Georgetown; he is now a professor at its McDonough School of Business and directs the Georgetown Institute for the Study of Markets and Ethics.

The two pieces

  • John Hasnas, “The Myth of the Rule of Law,” 1995 Wisconsin Law Review 199. UW Law repository.
  • brainpolice, “The Myth of ‘The Rule of Law’,” Mises.org community blog (April 28, 2008). Archived copy.

Hasnas after the article

  • John Hasnas, “The Depoliticization of Law,” Theoretical Inquiries in Law 9 (2008), 529.
  • John Hasnas, “The Obviousness of Anarchy,” in Roderick T. Long and Tibor R. Machan, eds., Anarchism/Minarchism: Is a Government Part of a Free Country? (Ashgate, 2008).
  • John Hasnas, Common Law Liberalism: A New Theory of the Libertarian Society (Oxford University Press, 2024). Law that evolves without a lawgiver, and the common law as its example.

How determinate law is

  • Frederick Schauer, “Easy Cases,” Southern California Law Review 58 (1985), 399. Why most legal questions never reach court.
  • George L. Priest and Benjamin Klein, “The Selection of Disputes for Litigation,” Journal of Legal Studies 13 (1984), 1. Litigated cases are not a random sample of disputes.
  • Klerman and Lee, “The Selection of Disputes at Forty,” Yale Journal on Regulation. The selection effect, revisited.
  • Lon L. Fuller, The Morality of Law (Yale University Press, 1964). The eight marks of legality.
  • Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004). The rule of law as a family of thinner and thicker ideas.

Law without the state

  • Gary Chartier, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge University Press, 2013). Law without the state, defended from the left, with a stateless order held to rule-of-law standards. Chartier grounds it in natural-law theory, the found ought this site sets aside, so the conclusion is close and the route is not. His basic goods, life, knowledge, friendship, play, aesthetic experience and practical reasonableness, hold up well as built oughts, open to evidence and tested on cases. Their claimed self-evidence does not: it is an axiom taken on trust, and held that way the list stops at the species line.

Deterrence and constitutions

  • Daniel S. Nagin, “Deterrence in the Twenty-First Century,” Crime and Justice 42 (2013), 199. The certainty of being caught deters; the severity of punishment barely does.
  • Adam Chilton and Mila Versteeg, How Constitutional Rights Matter (Oxford University Press, 2020). Rights hold when organized groups hold them.

On this site