Law is a body of rules, or norms, promulgated as public knowledge so that people can internalize them, make them a framework for their plans and expectations, and use them to settle disputes with others. It also consists of the institutions that uphold, administer and enforce those laws. To function properly, law must be accessible to all people, and that accessibility requires independence of the judiciary and a transparent, accountable government. It also demands fairness and impartiality in the application of laws, and that judicial decisions be based on sound reasoning rather than on prejudice or emotion. Finally, it demands that the laws be respected and obeyed even when they conflict with one’s own interests or those of friends and family.
The concept of the Rule of Law has long been an important ideal in our political tradition. But it has been difficult to pin down exactly what the Rule of Law entails. In part that is because the Rule of Law has always been more than a set of political mechanisms for distributing power. It also requires that people respect and comply with legal norms, even when they disagree with them, and that they accept a process for settling conflicts between their interests and those of others through the law (rather than through direct negotiations or the ballot box).
Hayek (1973: 72 ff.) has often disparaged legislation, precisely because it seems to be a form of governance that is not susceptible to deliberate control by powerful officials. But the ascription of that status to legislative action does not necessarily imply that it is inconsistent with the Rule of Law; it depends on how it is framed and authorized.
Some theorists, such as Fuller (1964), have formulated what they call “the inner morality of law”: principles that require that laws be general, public, prospective, intelligible, clear, stable, and practicable. These formal requirements generate a momentum toward certain substantive values, such as justice and the freedoms that flow from it.
But pragmatists have also pointed out that the formal aspects of the Rule of Law do not suffice to address all our concerns. The Rule of Law is not just about how a government governs; it is about what the law does for us, and what sort of social structure it produces. It is about the kind of bonds of mutual constraint that mitigates the asymmetry of power that must be exercised over human societies. It is about the way in which it helps to keep the peace, maintain the status quo, protect minorities against majorities, promote social justice, and provide for orderly social change. It is about all the things that make a nation a community that is worthy of its name. And that is why the Rule of Law matters. For all of these reasons, the idea that there should be some fundamental minimum level of acceptable rule-making and enforcement is a profoundly valuable one. For that reason, the study of law should never be merely academic or abstract.