Rule of Law v. the Rule of Men and Women: What’s in the Distinction?

In this very short essay, for a Festschrift edition of the Hague Journal on the Rule of Law dedicated to Professor Martin Krygier, I take as a point of departure some observations on the opposite of the ideal of the rule of law, i.e. the much-maligned concept of the “rule of men [and women]”. By reflecting upon this counter-ideal, I hope to discern some aspects of the ideal of the rule of law itself. By proceeding in the teleological spirit of Krygier’s rule-of-law oeuvre, I intend to ascertain what it is that is truly objectionable about the counter-ideal. Or perhaps it is not that objectionable, after all? This aspect of my argument is modelled on “devil’s advocate” reasoning. Having discerned the only interpretation of the counter-ideal of the “rule of men and women” which is serious and objectionable at the same time (namely, producing Hayekian coercion), I propose a way of addressing the harm discerned in this counter-ideal (namely, that legal coercion should be always based on public reasons), and in this way, contribute to our thinking about the ideal of the rule of law itself.