2 - A substantive Rule of Law?

Summary

Some people think that the Rule of Law is a purely formal/procedural ideal, neutral as between different kinds of law, provided that the law to whatever ends it is directed satisfies formal constraints of generality, prospectivity, clarity, etc., and is applied in a procedurally fair and respectable manner.

Others, however, believe in a substantive dimension for the Rule of Law and, of these, there are some who believe that there is a special affinity between the Rule of Law and the vindication and support of private property rights. Those who take this view believe that the Rule of Law looks with a jaundiced eye, rather than a neutral eye, on legislation of the kind we are considering – the conservation statute, for example, that was at stake in Lucas v. South Carolina Coastal Council in 1992. It is part of the mission of the Rule of Law, on this account, to support private property; so, to that extent, the Rule of Law provides a basis for criticizing legislative intervention. In Chapter 1, I associated something approaching this position with theorists like Richard Epstein, F. A. Hayek, and John Locke.