Happy Thanksgiving! In my previous post, I described one possible meaning or conception of the phrase “rule of law” — the rule of law as a law of rules. On this view, the content of the ‘law’ must be clear and its meaning must be subject to judicial review.

Today, by contrast, I will explore the rule of law from a “procedural” perspective. In brief, by procedural, I mean the process by which we are told what the ‘law’ is. For Dicey, the general principles of law must be “the result of judicial decisions determining the rights of private persons in particular cases ….” On this view, philosopher-kings are incompatible with rule of law and must be banished once and for all; instead, general legal principles and legal rights and duties must be defined by judges in actual cases.

This procedural view poses some deeper questions: doesn’t the rule of law require a court system that can resolve disputes quickly and cheaply, and are private courts (arbitration) or informal procedures (mediation) consistent with the rule of law? I ask these questions because, broadly speaking, civil and criminal litigation today are expensive and time-consuming undertakings.

Furthermore, expense and delay are not the whole litigation story. The other problem with going to court is the variable of uncertainty. Simply put, whenever a case goes all the way to trial, it is next to impossible to predict with any degree of certainty what the outcome of that case will be. As a result, even when the parties have all the time and money in the world to fight their battles in court, they may not want to take their chances with a judge or jury. 

So, how costly, time-consuming, and unpredictable can a court system be and still be consistent with the rule of law? (To be continued …)