13 - A Positive Theory of the Rule of Law

Summary

What is the rule of law, and under what conditions does it become a self-reinforcing, stable order? Missing from the various literatures that have attempted an answer is a coherent attempt to create a satisfying account of the microfoundations of the behaviors that generate and sustain a distinctively legal order. Whether philosophical or applied, existing approaches to the rule of law have neglected the question of what, exactly, is distinct about law’s rule. We do not yet know enough about what sets legal ordering apart from other strategies of ordering, be they economic, political, or violent.¹ This chapter responds to this lacuna. In so doing it gives an account of the kinds of things required for a positive theory of the rule of law.