| If laws are made by governments, how can the "rule of law," as distinguished from the "rule of man," be meaningful? Surveying a diverse, interdisciplinary set of sources on the concept, I derive a definition: that condition in which law itself is sovereign over the authority of state actors. Following Lon Fuller, law is defined as the enterprise of guiding behavior by rules, implying that only rules so capable can function as law. Thus, the rule of law implies two components: both that the law is sovereign over state authority, and that laws maintain a robustly Fullerian character. Rule of law obtains where both are satisfied.;The Hayekian theory of spontaneous, or emergent, "bottom up" order provides an alternative source of law, as exemplified by the common law tradition. Order, and law itself, need not come from imposed, "top-down" models of state-designed law. The framework is further illuminated and clarified by addressing Edna Ullmann-Margalit's critique of Hayek.;The common law depends upon stare decisis, so the rationality of the appeal to precedent is described and defended. Precedent keeps law consistent but also evolutionarily adaptable. Nonetheless, Oona Hathaway argues reliance on precedent generates path-dependence problems, so her critique is entertained and rejected.;Emergent orders, such as evolutionary biology and market economics, rely on information selection and preservation mechanisms like genes and price-signals respectively. I identify precedent's analogous role in law. Analogical reasoning from precedent selects for rules with Fullerian character traits: generality, consistency, stability, clarity, and publicity. Thus, stare decisis provides both necessary components of the rule of law: emergent order provides an alternative to top-down control and design of law, and laws generated from precedent are robustly Fullerian in character.;Finally, I address rule of law skepticism. The emergent model shows how law prior to and independent of politics is possible. The legal realist-inspired critiques of John Hasnas and Ted Burczak mistake underdeterminacy for indeterminacy, the former being better able to explain degrees of legal certainty and stability. Objectivity is at least as attainable in law as in other forms of inquiry into emergent orders. |
