prior probability

In honor of Paul Walker, who died on this day (30 Nov.) in 2013.

In addition to my regular batch of scholarly papers, sundry blog posts, and podcast trancripts, two of my book-length readings are Viking-themed, part of an independent research project for a seminar on “Vikings and Warlords” at Rollins College:

• Arthur L. Herman, The Viking Heart: How Scandinavians Conquered the World, Mariner Books (2021)
• Werner Herzog, The Future of Truth, Penguin Press (2025)
• George Lakey, Viking Economics, Melville House (2017)
• Daniel Nina, Verano del 2019 [nunca ocurrió], Pasillo del Sur (2022)
• Marcus Willaschek, Kant: A Revolution in Thinking, Belknap Press (2025)

I now want to conclude my thoughts on the rule of law by presenting my preferred definition of this fundamental concept. For me, rule of law is an aspiration or ideal: 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 the words of A. V. Dicey: “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.

Thus far, we have seen three different conceptions of the rule of law: 1. aspirational (i.e. no one is above, or below, the law), 2. procedural (the law game must be fair), and 3. substantive (the rules of the game must be clear before the game is played). The fact that the phrase “rule of law” can be defined in so many different ways poses one last (for now) puzzle. What is their common thread, if any?

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 …)

My next rule-of-law puzzle is definitional: what do we mean by the “rule of law” anyways? In the Anglo-American world, this ideal can be traced as far back to Henry de Bracton’s medieval treatise De legibus et consuetudinibus Angliae (“On the Laws and Customs of England”), but the term “rule of law” itself is a relatively recent one: it was coined by an Oxford don, the great A. V. Dicey, in the 19th century!

For his part, Professor Dicey identifies no less than three different meanings or conceptions of “rule of law” in his 1885 treatise The Law of the Constitution. 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. [1]

Alas, today there are so many cases, laws, and regulations on the books that it is all but impossible, even for a trained lawyer, to know what the ‘law’ really is, and this observation, in turn, poses a troubling question: how can there be “rule of law” — as opposed to what I like to call the “rule of politics”, i.e. rule by the arbitrary whims of men — if we don’t even know how many laws there are in the first place?

This problem is especially acute in the United States, where legal experts don’t even know how many federal crimes there are! (See here, for example.) In fact, the problem is perchance worse than that, for even if we could use some method of “machine learning” or artificial intelligence to identify all the State, federal, and international laws that make up the U.S. legal environment, we would soon discover that many of these rules are either incomplete or vague or, worse yet, in contradiction with each other!

Is this a soluble problem, or is the concept of rule of law an incoherent one? (To be continued …)

[1] I am enclosing the word ‘law’ in single quotation marks because, at some point, we are also going to need a working definition of the concept of law. But if there is one thing that most philosophers of law do NOT agree on, it is how to define the word law.

I will resume (and conclude) my series on Jean-Jacques Rousseau and the paradox of politics next week. In the meantime, I want to share some thoughts on the rule of law. In my recent talk on Friday, 21 November, at the St Thomas University Law School in Minneapolis, I identified two deep puzzles about the “rule of law” ideal. One of my puzzles is historical; the other, theoretical or definitional.

Let’s begin with my historical puzzle first by comparing and contasting the Magna Carta (1215) with the French Declaration of the Rights of Man and the Citizen (1789). By all accounts, the Magna Carta was extorted by force. King John agreed to the Great Charter at the point of a dagger! (See, for example, the artistic rendering of the signing of the Magna Carta below.)

The French Declaration of Rights, by contrast, was adopted democratically when the Three Estates met in Paris in 1789. Yet unlike the Magna Carta, the ill-fated French Declaration of Rights proved to be an ineffectual legal document, one that failed to curb the violence of the Reign of Terror (1792-94) or prevent Napoleon’s consolidation of power in 1799.

In short, why did the “MAGNA CARTA STRATEGY” of carefully limiting royal power on such mundane matters as weights and measures succeed while the “FRENCH DECLARATION STRATEGY” of identifying supposedly-inviolable and fundamental individual rights fail? (To be continued …)

Last week (see here), we saw how a young Adam Smith singled out and transcribed three lengthy philosophical fragments from Rousseau’s famed Second Discourse in his (Smith’s) 1756 letter to the Edinburgh Review, and we then took a closer look at the first two of these eloquent extracts (here and here). Now, let’s turn to Smith’s translation of the third and last passage. [1] To begin, my most pressing question for Adam Smith is this: what does this third selection, which consists of nine sentences in all, add to the previous two passages?

For starters, the first two sentences of Smith’s translation of Passage #3 paint an idealized or romantic picture of Rousseau’s noble savage:

SENTENCE 1 & 2: “Man in his savage, and man in his civilized state, differ so essentially in their passions and inclinations, that what makes the supreme happiness of the one, would reduce the other to despair. The savage breathes nothing but liberty and repose; he desires only to live and to be at leisure; and the ataraxia of the Stoic does not approach to his profound indifference for every other object.”

The next two sentences of Smith’s translation describes “civilized man” or “the citizen” as trapped in a perpetual and pointless treadmill:

SENTENCES 3 & 4: “The citizen, on the contrary, toils, bestirs and torments himself without end, to obtain employments which are still more laborious; he labours on till his death, he even hastens it, in order to put himself in a condition to live, or renounces life to acquire immortality. He makes his court to the great whom he hates, and to the rich whom he despises; he spares nothing to obtain the honour of serving them; he vainly boasts of his own meanness and their protection, and, proud of his slavery, speaks with disdain of those who have not the honour to share it.”

Moving on, the next two sentences of Smith’s translation of Passage #3 (sentences 5 & 6) compare and contrast a simple Caribbean native with a harried European political figure:

SENTENCES 5 & 6: “What a spectacle to a Caraib would be the painful and envied labours of a European minister of state? How many cruel deaths would not that indolent savage prefer to the horror of such a life, which is often not even sweetened by the pleasure of doing well?”

The next two sentences of Smith’s translation (sentences 7 & 8) pinpoint the source of this difference between savage man and civilized man. For Rousseau, the savage lives within himself; the civilized man lives outside himself. That is, the savage’s sense of self comes from his own experience, while the civilized person depends on the opinions of others to feel like he matters:

SENTENCES 7 & 8: “But to see the end of so many cares, it is necessary that the words, power and reputation, should have an intelligible meaning in his understanding; that he should be made to comprehend that there is a species of men who count for something the looks of the rest of the universe; who can be happy and contented with themselves upon the testimony of another, rather than upon their own. For such in reality is the true cause of all those differences: the savage lives in himself; the man of society, always out of himself; cannot live but in the opinion of others, and it is, if I may say so, from their judgment alone that he derives the sentiment of his own existence.”

And the last sentence of Smith’s translation of this lengthy passage (sentence #9) concludes with this blistering indictment:

LAST SENTENCE: “It belongs not to my subject to show, how from such a disposition arises so much real indifference for good and evil, with so many fine discourses of morality; how every thing being reduced to appearances, every thing becomes factitious and acted; honour, friendship, virtue, and often even vice itself, of which we have at last found out the secret of being vain; how in one word always demanding of others what we are, and never daring to ask ourselves the question, in the midst of so much philosophy, so much humanity, so much politeness, and so many sublime maxims we have nothing but a deceitful and frivolous exterior; honour without virtue, reason without wisdom, and pleasure without happiness.”

In other words, this passage is not just a critique of civilized man; it is a scathing indictment of modern morality. For Rousseau, our morality is bullshit, a veil designed to hide our scheming and conniving ways. I therefore read Adam Smith’s Theory of Moral Sentiments as a direct reply to Rousseau’s indictment and a ringing defense of modern man. But let’s forget about Smith for the moment. What is Rousseau’s solution to this conundrum? (To be continued …)

On the Internet, nobody knows you’re a dog; and nobody knows when you’re feeling under the weather either! But I am, so I will share my thoughts on the rule or law (see my previous post) and resume my series on Smith and Rousseau on Monday …

I will resume my series on Smith and Rousseau in the next day or two because I will be speaking at a symposium on the rule of law at the University of St Thomas Law School today.