I am a big fan of Michael Oakeshott’s essay “The Rule of Law” as seen in my essay from several years ago on “The Rule of Law, Freedom, and Prosperity.” At the time I wrote that essay I confess that I didn’t fully grasp the nuance and import of Oakeshott’s insights and the subtle but important ways in which it differs from Hayek’s views on the rule of law. Since that that time I’ve reread Oakeshott a couple of times and as I’ve worked through his work I think I’ve come to understand his argument better and believe that he has the best understanding of the rule of law that is out there.
Timothy Fuller has a long post at the Law and Liberty blog on Oakeshott and the rule of law. Fuller’s essay is particularly helpful in that he explains Oakeshott’s views on the rule of law within the context of his overall philosophy and, in particular, his key distinction between civil and enterprise associations. In my opinion, this is the key to understanding Oakeshott’s unique contribution to the rule of law, contra Hayek, for example. In particular, whereas Hayek (at least in the Road to Serfdom and The Constitution of Liberty), along with most modern philosophers define the rule of law as formalistic controls on government action, I read Oakeshott as describing the rule of law as the organizing principle of a liberal society. In that sense the rule of law is the defining characteristic of a free society and its essence is to provide a framework for individuals to predict how other members of society are going to act. It is difficult to express the point here, but the key idea I take away from Oakeshott is that the rule of law is more than just a formalistic restraint on government action, but an organizing concept for all interactions among individuals in a liberal society (i.e., a society that is a civil association rather than an enterprise association).
While at it, I’d also like to recommend Oakeshott’s essays on the university as well (here’s a key essay). Like “The Rule of Law” it can be hard to pin down what he is saying. But as there, the key to understanding Oakeshott’s writings on the university is that he sees the university as a civil association, whereas most moderns implicitly think of the university as an enterprise association (to educate graduates to get a job or more nefariously to indoctrinate students with particular ideological views and attitudes).