Chapter 18: The Myth of the Rule of Law

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 Alex Strekal, writing 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. Laws don’t rule; people do, and the phrase “rule of law” hides which people. People write the law, 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. Legal and just are different words because they mean different things.

A piece of paper

Strekal 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.

Ilya Somin, a law professor at George Mason, reaches the same place from inside the system. There are now so many laws that nearly everyone has broken some, and enforcers can pursue only a fraction of offenders, so who ends up in court turns on discretion and chance, not on any rule. His remedy is fewer and simpler laws. That helps, but it leaves the discretion with the same monopoly: the paper shrinks, and the people holding it stay put. Nor does trimming guarantee that the right laws go. Cut the fat and some rubbish can still be left on the books.

Sovereign citizens borrow half of this. They also say no one is their master, and they are right that the state’s authority rests on a story. But they don’t reject the story; they try to win inside it, hunting for the clause or the capital letters that put them beyond a court’s reach. That is the myth of the rule of law at its purest: faith that the right paper will stop a police officer. It never has. Anarchism keeps the other half. The sovereign’s claim fails on moral grounds, and no form of words will make it let go. Only people refusing it will. Until that happens, the prudent advice is the opposite of the sovereign citizen’s: know the rights the courts actually enforce, and know who the master sovereign is. For now we are subjects under its laws, and resisting alone is a fool’s errand.

For anyone who does end up in court, the Tilted Scales Collective’s A Tilted Guide to Being a Defendant is the serious version of that advice. It offers no magic words, only a plan: treat the charges as part of the larger struggle, and fight them in ways that don’t help the state put people in cages. It promises no escape. The long arm reaches most of the people it reaches for, and the guide is a plan for getting through it, not for slipping 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.)

Law and disorder

Hasnas also catches the trick in the phrase “law and order.” Order is what people need. Law, as now constituted, is one way of producing it: one set of state-made rules for everyone, order by central planning. Run the two words together often enough and wanting safety starts to sound like wanting more law. His alternative is the market in law from Law Without a Monopoly, and he points to the growth of private dispute resolution as a sign it is already arriving. How order grows without anyone planning it is the subject of the Order section, starting with Order Without a Master Plan.

Exit, not determinacy

Hasnas’s parable of 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.

Suppose the myth came true

Strekal and Hasnas both argue that the rule of law can’t happen: paper doesn’t enforce itself, and rules don’t interpret themselves. Suppose it could. Every law is clear, published, applied evenly and enforced without fear or favor. What do you get?

You get whatever the laws say. The rule of law is a promise about form, not content. It asks whether rules are general, public, clear and consistently applied. It never asks whether they are just, or worth having. Joseph Raz, one of the ideal’s ablest defenders, says so plainly. He compares it to the sharpness of a knife: a virtue that makes law a better tool for whatever it is used for, evil included. There is an irony here. Hume warned that you can’t get an ought from an is. Law runs the other way: it takes someone’s ought and makes it an is, by force. The Fugitive Slave Act of 1850 was clear, published and enforced by federal commissioners. Apartheid’s pass laws were written down and meticulously administered. Hasnas’s own examples make the point. The British salt monopoly Gandhi defied and the segregation ordinances the civil rights marchers broke were not vague. The injustice was in the rule, and “upholding the rule of law” was what let decent people enforce it. Or it trapped them into it: a clerk or a constable who refused could lose his living or his liberty. Whether people who enforce unjust laws are still decent is the question the alignments below ask.

Hasnas misses this because his complaint is indeterminacy, and he even praises it: vague law gives judges room to do justice in hard cases. That room is real, and so is its limit. Flexibility helps only where the law is unclear. Against a clear and odious law, a perfect rule of law is the worst case, not the best. It is tyranny made efficient, with no slack for anyone.

Too many laws

The petty laws fail from the other side. Rules about what you may sell from your porch, grow in your yard or put in your own body pile up until, as Somin shows above, nearly everyone has broken some. They can’t be enforced evenly, so they are enforced selectively, and selection is a person’s choice. So the ideal is trapped. Enforce bad laws faithfully and it is a weapon. Enforce them selectively and it is a fiction. Either way, it can’t be what keeps people free. It can still be used by free people, as Thompson argues below, but only as a tool they pick up, never as the thing that frees them.

Every remedy the system offers concedes the point. A prosecutor who declines to charge, a jury that acquits against the evidence, a law left to rot unenforced, a marcher who breaks a law in public and takes the punishment: each is a person overriding a law. That is rule by people, the thing the ideal promised to end, and here it is the only thing that helps.

Law for the licensed

Not every bad law is cruel. Many are written to protect someone, and the someone is rarely the public. Charles Johnson’s “Scratching By” (2007) shows how this works against the poor. People with little money have always got by on cheap, informal means: renting out a room, selling food from a cart, giving rides, doing hair in a kitchen, building small on cheap land. Licensing boards, zoning, building codes, permit fees and vending bans make each of these illegal or too costly to try. Then the poor are blamed for being poor. Such rules are usually sought by the people already in the trade, who gain from the fence around it. Hasnas’s own first example belongs here: a Clean Air Act shaped to protect West Virginia’s dirty coal. Law of this kind doesn’t keep order. It keeps a cartel.

Defenders of licensing say it protects the public from quacks and cowboys, and sometimes it may. A 2015 White House review of the research found that licensing raises prices and blocks entry, while the evidence that it improves quality is mixed: a few studies find gains, most find little or none. Morris Kleiner, the leading economist on the subject, had reached much the same conclusion a decade earlier. Where a license does guard against real harm, a certificate anyone may earn and anyone may ignore would do the same job without the fence.

F. A. Hayek gives the pattern a name. In Law, Legislation and Liberty (1973) he separated law, rules that grow out of settling real disputes and apply to everyone alike, from legislation, orders issued to serve some purpose of those in power. Most of what fills the statute books today is the second kind: policy dressed as law. And orders outlive their purpose. Laws written for conditions long gone stay on the books, unenforced until someone finds a use for them, and some were out of touch the day they passed.

Can form save it?

Lon Fuller gives the strongest answer. In The Morality of Law (1964) he lists eight ways to fail to make law: no general rules, only one-off orders; rules kept secret; rules made retroactive; rules too unclear to follow; rules that contradict each other; rules that demand the impossible; rules changed so often no one can keep up; and officials who don’t follow the rules they announce. A system that fails badly enough, he argued, isn’t law at all, and one that passes tends toward decency, because rulers who must state their aims in public rules find wicked aims harder to state. On this view a flood of petty, unknowable laws is a failure of the rule of law, not proof that it is a myth. Brian Tamanaha takes the indeterminacy challenge head on, treating the rule of law as a family of thinner and thicker ideas that a legal order meets more or less well. Neither he nor Fuller denies that judges choose. Both deny that choosing makes the rules worthless.

Fuller is right about the flood, and his last test, officials bound by their own rules, is the third part of the test in Law Without a Monopoly. But his hope that form leads to decency is the claim history refutes. The slave codes and the pass laws stated their aims in public, plainly. H. L. A. Hart answered Fuller at the time that legality is compatible with great iniquity. And an ideal no state meets, judged by the state that fails it, is no check at all. Form can’t do the work of content. Whether a law deserves obedience is settled by other tests: Ingersoll’s, whether it grants to everyone what it claims for some, and the floor from What Rights Are, whether it uses people as inputs. A clear, evenly enforced law can fail both. The next section puts that question with dice.

Lawful ain’t good

Two essays from Anarcho-Geek Review make the point with Dungeons & Dragons. The game sorts characters on two axes, Law against Chaos and Good against Evil. The Nine Alignments, by an anonymous author rescued from a dead Geocities page, takes the system seriously as ethics. Its Neutral Evil is the ordinary person who goes along with an evil system, like the doctors who kept the camps running. Lawful Ain’t Good goes further: there are only eight alignments, because law imposes one group’s ethics on everyone, and only law can build violence into a system. Good can use the law as a tool, but at the extreme the two don’t overlap. It is a game, but the question is real: when legal and good come apart, which do you serve?

Direct action

When legal and good come apart, anarchists answer with direct action. Voltairine de Cleyre defined it in 1912: whenever people make a plan and carry it out themselves, without asking an official to do it for them, that is direct action. Her examples ran from colonial Quakers and abolitionists to striking workers. A food co-op, a free clinic and a tenants’ union are direct action too, and all of them are legal.

Direct action isn’t petitioning, lobbying or electing someone to fix things. If you are hungry and the bread is there, you don’t write to your legislator asking for a bread bill. Nor is it violence for its own sake. But when the law forbids what people need, direct action becomes direct defiance. The Underground Railroad broke the Fugitive Slave Act; Gandhi’s march broke the salt law. Howard Zinn put the point in the title of a 1970 speech: the problem is not civil disobedience but civil obedience.

Defiance has a price, and the long arm is real. One person defying a law alone is usually one person punished. Many defying it together can make it hard to enforce: Northern resistance made the Fugitive Slave Act a constant fight to apply, and within a year of the salt march the British let coastal villagers make their own salt. The difference between a fool’s errand and a movement is mostly numbers, and the willingness to bear the cost in public.

Where the police came from

Roxanne Dunbar-Ortiz traces one root of American policing to the colonies. Colonial laws required settlers to keep arms and form militias, which raided Native communities for land. As plantations spread, the same armed households rode as slave patrols, and she argues that those patrols shaped American police culture. Historians add that Northern departments grew mostly from night watches and London’s 1829 model. Both stories end in the same place: a force answerable to the people who owned things, not to the people it policed. That fails the test in Law Without a Monopoly at every step.

The strongest case against

The best counter comes from an unlikely pair. E. P. Thompson, a Marxist historian, studied the brutal game laws of 18th-century England and still concluded that the rule of law is “an unqualified human good.” Rulers who claim to be bound by rules can be held to them, and the weak have used that claim against the strong again and again. Roderick Long makes a practical version. He would prefer complete disunion, but while the states and the federal government are one machine, he backs whichever part of it protects people better on a given day, including the Bill of Rights against the states.

Both have a point, and the point has a limit. Thompson is right that the ideal can be turned against rulers; that is the third part of the test, holding power to its own rules. Long is right that you use the leverage you have. The myth is believing the paper does the work. Every time a rule bound the powerful, people bound them with it: lawyers, juries, strikers, a press that wouldn’t drop the story. The rule of law is a tool in the hands of the ruled, or a costume on the rulers. It is never self-enforcing.

Where this lands

“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, Strekal 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). Legal indeterminacy; law vs. order. original
  • Alex Strekal (as brainpolice), “The Myth of ‘The Rule of Law’” (Mises.org community blog, 28 April 2008). Paper doesn’t enforce itself. archived · copy here

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.
  • Daniel Klerman and Yoon-Ho Alex Lee, “The Selection of Disputes at Forty” (Yale Journal on Regulation). The selection effect, revisited.

Form and content

  • Lon L. Fuller, The Morality of Law (Yale University Press, 1964; rev. ed. 1969). Eight ways to fail to make law; legality as an “inner morality.”
  • H. L. A. Hart, review of Fuller’s The Morality of Law (Harvard Law Review 78, 1965). Legality is compatible with great iniquity.
  • Joseph Raz, “The Rule of Law and Its Virtue” (Law Quarterly Review 93, 1977; reprinted in The Authority of Law, Oxford University Press, 1979). The rule of law as a knife’s sharpness: a virtue of form, not content.
  • 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.
  • E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (Allen Lane, 1975). The rule of law as “an unqualified human good.”
  • David Hume, A Treatise of Human Nature (1739–40), book 3, part 1, section 1. No ought from an is. Public domain.

Too many laws

  • Ilya Somin, “Why the rule of law suffers when we have too many laws” (Volokh Conspiracy at Reason, 2 October 2017). Too many laws turn the rule of law into the rule of discretion. original
  • Charles W. Johnson, “Scratching By: How Government Creates Poverty as We Know It” (The Freeman, 2007; reprinted in Markets Not Capitalism, Minor Compositions, 2011). Licensing, zoning and codes against the ways the poor get by. copy here
  • Department of the Treasury, Council of Economic Advisers and Department of Labor, Occupational Licensing: A Framework for Policymakers (The White House, July 2015). Higher prices, blocked entry, mixed evidence on quality.
  • Morris M. Kleiner, Licensing Occupations: Ensuring Quality or Restricting Competition? (W. E. Upjohn Institute, 2006).
  • F. A. Hayek, Law, Legislation and Liberty, vol. 1, Rules and Order (University of Chicago Press, 1973). Law versus legislation.

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.

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 set aside here, so the conclusion is close and the route is not. His basic goods hold up well as built oughts, open to evidence and tested on cases; their claimed self-evidence does not.
  • Roderick T. Long, “Federalism and the Bill of Rights” (LewRockwell.com, July 2005). Kelo; strategic support for the Bill of Rights. original · copy here

When legal and good come apart

  • Anonymous, “The Nine Alignments” (old Geocities page, via Anarcho-Geek Review). Alignment as ethics. original · copy here
  • Anarcho-Geek Review, “Lawful Ain’t Good” (also a zine from Strangers in a Tangled Wilderness). Only eight alignments. original · zine · copy here
  • Voltairine de Cleyre, “Direct Action” (Mother Earth Publishing Association, 1912). Direct action defined, peaceful and otherwise. Public domain.
  • Howard Zinn, “The Problem Is Civil Obedience” (speech, Johns Hopkins University, November 1970; in The Zinn Reader, Seven Stories Press, 1997).
  • Tilted Scales Collective, A Tilted Guide to Being a Defendant: A Guide to the Criminal Legal System for Radicals (Strangers in a Tangled Wilderness, 2017). Facing charges without helping the state; the old tangledwilderness.org link is dead. online

Policing

  • Roxanne Dunbar-Ortiz, “Settler Colonialism and the Second Amendment” (Monthly Review, January 2018). Militias, slave patrols and policing. original
  • Mapping Police Violence. Data, carried over from the old Law pages hub.

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