seizes upon the 800th anniversary of the Magna Carta to draw attention to important problems associated with the contemporary rule of law. In particular, the Article discusses the rule of law as a systematically undersupplied public good. The Article then notes the insufficiency of standard incentive-based responses to rule of law problems. The Article considers finally the idea of ‘faithfulness’ in the law, and the role of civic and personal virtues in appropriately sustaining the rule of law.Wright comments
With the octocentenary of the Magna Carta, attention has been drawn to due process of law, to the law of the land,and to the nature and value of the rule of law. The Magna Carta famously promises in particular that “[n]o free man shall be seized or imprisoned . . . except by the lawful judgment of his equals or by the law of the land."If we think about the rule of law as thus gestured at by the Magna Carta, we may find that the precise nature of the rule of law is more contested than the general positive value of the rule of law. As one leading scholar has put it, “[e]veryone, it seems, is for the rule of law.
This Article will suggest, however, that even a unanimous and sincere collective endorsement of the rule of law would not ensure the rule of law’s continued vitality. The logic of this conclusion requires, first, an introduction to mainstream understandings of the rule of law, and to some assumed benefits of the rule of law. The Article then briefly explores several closely related contexts in which important rule of law concerns arise.
The institution of the rule of law is then diagnosed, at least by analogy, as what is called an undersupplied public good, with attention then being devoted especially to standard problems of an improperly regulated “commons” and to some elements of modern game theory, including the possible strategic payoffs to a legal actor of apparent “madness” in rule of law contexts. In pursuit of a constructive response to the chronic, systematic undersupply of the rule of law, this Article then explores the idea of faithfulness, or fidelity, and calls attention to some of the basic virtues of character most distinctively relevant to sustaining the rule of law.
The hope is that cultivating some of the most relevant virtues of character can change not only the otherwise collectively undesirable of choice “payoffs” available to public officials who inadvertently undermine the rule of law, but the capacities and underlying values and priorities that public officials bring to such choices.