Listening to Gerald Frug talk about the concept of rule of law in relation to cities reminded me just how manipulative elites can be. Frug, a distinguished Harvard law professor, is concerned with the deconstruction of the idea of the rule of law as it is popularly understood and disseminated by politicians, businesspeople, and “think” tanks. As Frug points out, this usually is a particular model of market regulation focusing on improving the ability for individuals and groups to engage in capital accumulation. Hernando de Soto has argued in The Mystery of Capital that this, more than any other reason, is why the “third world” is still mired in poverty. In contrast to this notion of rule of law, Frug argues that its importance is in “restraining the excercise of arbitrary power”.

This concept seems quite fair, but what exactly might we constitute as “arbitrary”? Fundamentally, Frug points out that arbitrary power is any decision-making authority that is not democratically excercised. This too warrants a definition: for Frug, “democracy is a lived experience” empowering people with greater control over their lives, rather than a simple electoral formula or representativeness in a legislature. Thus, Frug’s ideal-type ‘rule of law’ is one that ensures that everyone’s voice is involved in decision-making processes. As potential sources of arbitrary power, Frug cites governments, elite experts and professionals, and relevant to his city theme, neighborhood groups.

Beyond a dichotomous assertion of individuality implicit in Frug’s understanding of rule of law, he hints at an essential point: if the legal system is founded, as in any representative democracy, on the arbitrary decisions of an elite minority (via the legislature and judiciary), then just how “legal” is it? Frug looks to the communal norms, customs, and checks on power in shantytowns around the world - in short the ‘informal’ segments of society - and determines that these arrangements are legal in their own right. The imposition of a formal legal system, especially when it is imported from afar via the WB and other development agencies, is clearly an excercise of arbitrary power that infringes on the legal structures of these state-autonomous regions. Now, the legal system of these informal shantytowns may be highly corrupt, immensely hierarchical, patriarchal, and brutally repressive - but then again, looking back on its historical development, so is our own.

Frug instead insists upon a notion of the rule of law that is flexible, situational and context dependent - one that is dynamic, not relatively static, and one that protects the “weak” from the “strong” instead of institutionalizing the power of the latter. Though he discusses this concept with reference to urban localities, he emphasizes that these local structures must not simply form an addition to the formal [national + subnational] legal structure, but radically transform it.

Elites who have a considerable stake in the particular idea of rule of law that is currently being disseminated (read: the formal liberal-capitalist legal structure) seek only to totalize its presence over society. This expansion, while often cloaked in the language of freedom and democracy, is clearly anti-democratic in the sense that it only empowers a small minority. But it is also opposed to the Frugian spirit of the “rule of law”, in the sense that it seeks to bolster the hegemony of arbitrary power. This oligarchical format runs the risk of degenerating to blatant totalitarianism, as even if the content of the laws remain fairly liberal in nature, the structure of the legal system will not. Even Friedrich von Hayek warned us against this in The Road to Serfdom!

The rule of law is a welcome ideal that we must always strive for, if it is employed in the Frugian sense. But we should be intensely critical of this concept at all turns. If the bourgeois, questioning absolutism, asked “Whose rule should we submit to?”, deciding among themselves on themselves via nascent “democracy”, we the masses should ask the same question. Whose laws do we follow, even if we agree with many of them? Who determines which laws are right and just and which are not? Thinking about these questions for only a little while should reveal a radical disconnect between our “rule of law” and democracy.

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Matthew Lymburner is an MA student at the Institute of Political Economy, Carleton University. He is interested in Brazilian history and political economy, and progressive politics worldwide.
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