This conversation was originally recorded in 2021 as part of the Ideas Untrapped series
The problem of the rule of law is inescapable in any society - and even more especially in the context of economic development. Policies that promote prosperity cannot be devoid of considerations for the rights of people who make up the society and the economy, regardless of all technocratic pretensions otherwise. Adam Smith himself stated that economic prosperity thus requires ''a tolerable administration of justice''. Some readers might already start objecting to my treatment of the rule of law as merely an ''instrumental variable'' of a more desirous economic end-state, whereas the more familiar treatment is that of a society governed by the rule of law as an end-state in itself. There are merits to such quibbles, but there is also plenty of evidence in modern history that the rule of law is an essential cog in the wheel of prosperity.
''Rule of law'' is the generally accepted description for how well a political system conforms to formal rules - rather than functioning through the whims of the most powerful social or political agents. For a society to be described as one functioning under rule of law - there must be rules and those rules must be equally applied to everyone in the society. Let us call this Letter of the Law. These rules are usually expressed through the constitution of a country and enforced through the courts. But simply having rules and enforcing them does not suffice in the making of the rule of law - and it is an incomplete (however accurate) conception of it. Some rules can be drafted in bad faith or with the express purpose of protecting the interest of the political elites responsible for governance. This is why many scholars have argued that the rule of law can only be said to exist in a state that functions under rules designed to protect the civil liberties (individual rights, freedom of speech, freedom of association, etc.) of the people living within its territory. Let us call this the Character or Spirit of the Law.
The character of the law understood as the fulfilment of constitutionally-guaranteed civil liberties is the most common standard by which governance is judged to conform or deviate from the rule of law. For example, countries that routinely violate the rights of citizens in whatever form cannot be said to be governed by the rule of law, even if it has a written constitution. Consideration of the character of the law is the context to understanding the work of my guest on this episode, Paul Gowder.
He is a professor of law at NorthWestern university with a broad research interest and expertise. Paul departs from this common derivation of the character of the law as rooted in liberty - and argued that for the rule of law to be broadly applicable in different societies (not dependent on the political institutions and ethical ideals of any specific society) with varying cultures and traditions of governance, it must be rooted in Equality.
To understand Paul's argument, I encourage you to check out his website and book.
