Earlier this week, I introduced the students in my business law honors section to Tom Bingham’s classic work The Rule of Law, which is available here, by the way. To start the discussion, I asked my students to tell me what was the most surprising or unexpected aspect of the ideas presented in Chapter 1, which is titled “The importance of the rule of law.”
For me, it’s two things. One consists of an omission: this first chapter makes no reference whatsoever to Lady Justice, even though she appears on the cover of Bingham’s book. The other is the possibility that the meaning of rule of law is logically incoherent. How so? In a nutshell, because these words are not only vague, trite, and overused; the concept of rule of law has so many possible meanings or conceptions that it can mean different things to different people.
Is it possible to rescue this concept from these devastating intellectual blows? As I see it, this powerful critique is probably what motivated Judge Bingham to write his book! In Chapter 1, he begins his defense by retracing the linguistic origins of the phrase “rule of law” and then nailing down some of the more salient possible meanings this legal-political ideal can have. According to Bingham, it was an Oxford don, the great A. V. Dicey, who first coined this now-familiar expression as early as 1885–or as late as 1885, depending on your time horizon. As it happens, Professor Dicey himself identified no less than three different meanings or conceptions of “rule of law”:
First off, the rule of law requires a law of rules, or to quote Dicey: “no man is punishable … except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” In other words, the content of the ‘law’ must be clear and its meaning must be subject to judicial review; i.e. it is the judges who get to decide whether the ‘law’ is clear or not. (Note: I am enclosing the word ‘law’ in single quotation marks because, at some point, we are going to need a working definition of law.)
Secondly, the rule of law is also aspirational in nature: no one, no matter how powerful or rich, should be able to flout the law or “buy their way out” (so to speak) if they get into trouble, or in Dicey’s own words: “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.” Put another way, the legal equivalents of papal indulgences are incompatible with rule of law.
Thirdly, and (I would argue) most importantly, the rule of law is procedural in nature, or to paraphrase Dicey: the general principles of ‘law’ are “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.
Do these three different meanings or conceptions of the “rule of law” share a common thread? (I ask this because, without a common thread, the critics might be right!) Since I plan to pose this very question in my next class, I will sketch out a possible common thread in a future post …
Let’s begin with Marshall W. Van Alstyen, a respected professor at Boston University (here is his Wikipedia page). In brief, Professor Van Alstyen proposed a “A Market for Truth to Address False Ads on Social Media” as early as March of 2020. (His ingenious three-page proposal was published in July of 2020 in The Communications of the ACM, the monthly journal of the Association for Computing Machinery, and is available here via SSRN.) Under this proposal, social media platforms like Facebook and Twitter would require advertisers to guarantee the truth of their ads. How? By requiring advertisers to put a large sum of money in escrow as an “honest ad pledge” that their claims are true. Anyone who doubts the veracity of an ad could dispute the ad, but they would have to pay a non-refundable fee first. If anyone decides to dispute the ad, then an independent fact-checker would judge the ad’s truthfulness, and if the ad proves false, the injured party would then receive the advertiser’s pledge from the escrow account.
As it happens, Professor Van Alstyen and I not the only scholars to have proposed a market for truth. (I first proposed a “conspiracy theory betting market” in April of 2021 at a conference on “Alternate Realities, Conspiracy Theory, and the Constitutional and Democratic Order” at the University of St Thomas, and my proposal was eventually published in The Journal of Law & Public Policy in the summer of 2022.) Last fall, law professors Yonathan A. Arbel (Alabama) and Michael D. Gilbert (University of Virginia) proposed “A Market Solution to Fake News” in the form of truth bounties. (Here is a link to their 54-page paper via SSRN, and here is a summary.) In brief, their proposal is similar to Professor Van Alstyen’s, except that they would replace Van Alstyen’s “independent fact-checker” with a “dedicated body of private arbitrators” composed of independent experts.
Alas, although both market-oriented proposals are a step in the right direction, since they attempt to harness financial incentives such as escrow accounts and bounties, both are nevertheless doomed to failure. For starters, Professor Van Alstyen’s proposal assumes the existence of an “independent fact-checker” that everyone can agree to ahead of time. In reality, there is no such thing as an “independent” fact-checker. No individual fact-checker, no matter how smart or respected, will be free from bias because biases are inevitable, and the degree of independence of any particular fact-checker will thus always be disputed.
By the same token, Professors Arbel and Gilbert enlist a “dedicated body” of experts, i.e. an arbitration panel whose members can be trusted to collectively arrive at the truth, presumably by majority vote. (I say “presumably” because I have yet to read all 54 pages of their paper.) But the flaw with Arbel and Gilbert’s “dedicated body” is that a group of so-called experts or arbiters is no more likely to arrive at the truth of disputed claim than a sole independent fact-checker is. Why not? Because as Frank Ramsey and Bruno de Finetti showed us long ago (look them up!), truth is subjective. That is, when a claim or belief is contested, the truth value of that claim/belief should be expressed as a probabilistic quantity (i.e. between 0 and 1), not as totally true (1) or totally false (0).
My Hayekian truth market, by contrast, dispenses with the need for trusted experts or fact-checkers altogether, and you can find my proposal here.
Are any of these alleged conspiracies real? More to the point: why do some (many?) people believe so? However those questions are answered, what if there were a truth market where people could place bets on the truth values of any given conspiracy theory? That is precisely what I propose in my latest work-in-progress “Truth Markets”, which is available here.
I have been meaning to share this particular tweet since last month (hat tip: Gary Leff). Full disclosure: Admittedly, I have never flown Frontier, but did I make the mistake of flying the god-awful Spirit Airlines last summer because they offered the only direct flight to Bogota from Orlando. Never again. See also: this.
I teach a survey course on the legal and ethical environments of business, and one of the most challenging aspects of teaching such a course is that business law encompasses almost every area of law. At the very least, however, a college course in business law should address two high-level questions: (1) what is the relation between law and morality? (after all, my course is literally called “the legal and ethical environments of business”), and (2) what is the most important feature of the “legal environment” in which firms, employees, and entrepreneurs make decisions and interact with each other? With respect to this second question, I would argue that the “rule of law” is an important aspect of the legal environment of business, but this observation, in turn, poses two further questions: (3a) what is the “rule of law”? and (3b) why is it important, especially to business? To address these key questions, I am asking the students in my honors section to read “The Rule of Law” by Tom Bingham during the first third of the semester. (According to Wikipedia, Bingham was an eminent British judge and the greatest lawyer of his generation.) Starting late next week, I will begin writing up and posting a chapter-by-chapter review of Bingham’s classic book.
I confess that I am still in tears whenever I think of my colleague, mentor, and friend Dr Dean Cleavenger. Suffice it to say that Dean was one of only three colleagues in my 25-year teaching career who really wanted to get to know me and become my friend. His memorial service (see here) will begin at 11:15 AM on Saturday, 11 February, at the CrossLife Church on 45 W. Broadway Street in Oviedo, Florida.
My previous post highlighted some of the scholarly work of my colleague, mentor, and friend Dr Dean Cleavenger (1966 – 2022). Today, to give you some idea of Dean’s warm and inviting personality as well as his teaching style, I am sharing one of his videos on the topic of fear: