Monday, June 01, 2009
In my article "The Rule of Lore" I sought to draw attention to John Hasnas's great paper "The Myth of the Rule of Law." I now want to spotlight a later paper by Hasnas that expands on the first: "The Depoliticization of Law" (pdf). In it Hasnas makes clear that the rule of law is a myth only when the law is politicized through a monopoly lawmaker. But when law is the product of a depoliticized, competitive, and spontaneous customary and common-law system, it meets the criterion of a true rule of law; namely, it is a system in which people are subject to rules that evolve out of custom and market-based dispute resolution, rather than to the conscious will of a single person or group of legislators and politically appointed judges. Especially interesting is Hasnas's critique of consent-based law.