The Rule of law (“ROL”) as a concept is hard to pin down.
The fact that there is not one one model of the ROL that satisfies three core definitional requirements that explain what gives rise to the ROL, what its mechanics are, and what its effects are is indicative of that.
Many studies focus on the rule of law “as cause” of various things, particularly of democracy and stability of states, but not on how the ROL itself arises. Likewise, studies overwhelming omit exploration of the mechanics of the ROL and instead focus on actions that simply aim to establish its effects. Commonly, actions described are geared to establishing a democracy, or one or other of the ROL principles made enforceable as precedent by courts of law.
The fallout
Without an a priori cause and effect model of the ROL within which to frame actions taken in the name of or in support of the ROL, the effects of those actions cannot be linked to the rise of the ROL, its mechanics or its effects.
Those same descriptive ROL principles can and often are imbued with causal significance and conflated as causal explanations of one or other of the three core definitional aspects of the ROL.
For example, one commonly recognised core descriptive principle of the ROL that of “the supremacy of law over arbitrary power” is variously treated as descriptive of that which gives rise to the ROL, or which is treated as descriptive of the mechanics of the ROL, or which is treated as decriptive of that which gives rise to the effects of the ROL.
And, within this state of affairs, it is fairly easily to mix and match descriptive principles of the ROL in a way that conjures up a semblance of a competent model of the ROL by imbuing them with causal significance that pretends to explain what gives rise to the ROL, its mechanics, and/or its effects.
Work arounds by current models
One way to work around the lack of a competent cause and effect model of the ROL has been a dependence on tautologies (the failure to distinguish that which gives rise to the phenomenon from its effects), and on teleologies (treating the function of the phenomenon as its purpose). However, the reality is that tautological and teleological work around models are simply ways to slip the yoke of having to deal with and expain cause and effect.
Another way current models of the ROL slip the yoke of causality is their dependence of the well-known false-narrative that correlation-reflects-causation, to prove the nexus between the ROL and its effects is demonstrated by the generally high correlation between state performance on indices of the ROL and its performance on indices of an ideal political form the ROL is purported to put into effect. However, the “correlation-indicates-causation” is a well-known false-narrative which leaves the primary definitional problem of the ROL unresolved
House of cards
That current models of the ROL are inadequate in their scope and evidence and have constructed a house of cards that serve to disguise the failure to develop a cause and effect of the ROL is barely recognised or acknowledged.
Instead, that house of cards has become entrenched by vested interests in the annual expenditure in the billions of dollars geared to improving state performance against principles of the ROL in order to improve democracy. Or indeed, vice versa.
This has effectively normalized this ideation of the ROL, and left the concept of the ROL of little value other than as a basis for resource allocations and expenditure, has failed to enrich jurisprudence around the ROL, and has left applications of the ROL bereft of tools necessary to its instrumentalization and utility.
In sum, the ROL can still be reduced to unanswered questions as to what gives it rise, what its mechanics are, and its effects.
Can the ROL be saved?
If a science-based model of the ROL can be compiled and shown to have predictive validity, then yes the ROL as a concept can be save. However, as mentioned,, there are currently no science-based cause and effect models of the ROL to demonstrate the efficacy of ROL programmes or evaluate current models do not provide a basis for encouraging faith that these programmes have validity
The endeavour to build an alternative science-based model of the ROL
This website presents the results of an extended endeavour to develop an alternative, science-based model of what gives rise to the ROL, its mechanics, and its effects, with the objective of formulating a cause and effect framework able to provide insights into its application that has predicted effects, and to develop tools necessary to instrumentalizing the concept, as a framework of analysis and research.
Basis of a science-based model and its interoperativity with current models
The most that can be teased out of current models of the ROL from their descriptive principles (sans the tautological and teleological implications that have been drawn from them) is that the ROL is a system of governance, of states, that is based on the separation of state powers, between various arms of governance, which are the legislature, executive and judiciary, and that its effects include stability of the state, and rights and freedoms characteristic of an ideal political form (usually cast as that of democracy of one flavor or the other).
In building a science-based model of the ROL these were utilized as a descriptive framework of the ROL. which was then analyzed and adjusted, and integrated within a new model of the ROL.
This website
This website provides a platform for presenting such a scoence-based model, and for its development and application that has interoperativity with current models of the ROL
The science-based model is interoperable with and compatible with current models to the extent they both define the ROL as a system of state governance, they both rest on the same basic premise of separation of powers of state, and they both utilize the same objective datasets available on the ROL (namely a composite of ROL principles made precedent and enforceable in law by adjudication and). Given that current models do not identify that which gives rise to the ROL, its mechanics and effects and depend instead on the fall narrative that correlation-indicates-causation, those models are by their own hand unable to counterdict the science-based models’ assumptions and hypotheses of these.
It is hoped that framing the ROL from within a science-based model will also provide further insight into the dimensions of the ROL and the tools necessary to directing ROL intervention policies and programmes that have predicted objective measurable effects aainst which they can be assessed.
Methodology
The science-based model of the ROL has been developed utilizing “formal scientific methodology” suitability for the abstract nature of the concept which, like many other abstract concepts such as math and gravity, cannot be directly represented in empirical reality and which concepts have to be inferred or deduced from their impact on empirical facts through a process of reasoning and hypothesis formation, and whose validity can be tested by verifying against the predicted empirical effects of applying the model.
The more common “empirical scientific methodology” starts, in contrast, with a blank slate upon which observed empirical facts can be written, conclusions drawn as to their causation, the manipulations of independent variables and comparison of the predicted outcomes with actual outcomes
Current models of the Rule of law (“ROL”), generally define it as a system of governance of states which arises in response to or as an aspect of an ideal political form (usually cast as democracy), and its effects are measured against rights and freedoms that thee ideal political form brings.
In sum, the science-based model identifies the ROL as an emergent property that arises within complex governance systems which necessitate a functional separation of powers. It identifies the separation of powers as being between four components of state – the public, legislature, executive and judiciary – whose functions are together both necessary, and sufficient, to the exercise of state governance, whose access to and exercise of power is based on a closed-system feedback loop whose input/output is subject to a system of gatekeepers based on reason, rationality and logic necessary to system equilibrium and stability over time.
Insights provided bt the new model
The model predicts not only intrastatal but interstatal effects as well as a wide aperture for applications of the ROL. It details the mechanics through which its intrastatal effects arise, and the ROL related risks that define interstatal relationships. It provides an objective measurement framework against which to measure intrastatal as well as comparative interstatal performance against the ROL. It points to new avenues for the practical application of the ROL to enhance stability of intrastatal governance as well as interstatal relations, the potential for international cooperation and interventions to resolving conflicts between states, and a ROL basis for state sovereignty and independence.
It was developed initially in response to the inability of ROL models to explain and resolve ROL failures within the context of he state capture and criminalization of the South African state in and around 2006. Its later development has taken account of parallels between that SA state capture and failure of the ROL and that of the Russian Federation.
Its later developments have provided insights into and focused on the jurisdictional gap which the ROL creates and maintains between the domain and authority of one state and another, the red-lines to transgressing that gap, the rise of interstatal relationships driven by the risk to sovereignty and independence which transgressing that jurisdictional gap represents to other states, and the interstatal effects of transgressions of that jurisdictional gap. More recently, development of the model has also focused on the common interest of states in maintaining that jurisdictional gap and avenues to instrumentalize the ROL that are necessary to recognizing and protecting that interest, utilizing the Russian/Ukraine war and the response of other states to the risks eventuating from such transgressions.
Current applications of the science-based model
Current and ongoing applications of the science-based model of the ROL include its application to understanding the relationship between state capture in South Africa, Ukraine and USA, and the ROL and avenues to resolve that state capture
Various potential applications, also currently being explored, relate to the potential subsumption of state governance systems under AI, the Israeli-Gaza conflict, and governance over Moon and Mars bases, war and the inequality of states, and trends towards the partition of states East and West
Peer review
It is hoped that this website will facilitate sharing and obtaining feedback on the science-based model of the ROL and generate debate about its utility going forward in a world where the ROL and rights and freedoms are as endangered as they have ever been.