Let me start by just stating my experience of reading The Rule of Law in the Real World1 because it will help make sense of the structure of my remarks. The first third of the book: I am utterly convinced, even blown away, by the elegance and persuasiveness of the argument and the analysis; even when there is merely a summary, I am helped and bettered by it. The second third of the book: I am inclined, based on the enormous goodwill generated by the first third of the book to accept-almost uncritically-the historical discussion and the conclusions drawn from it. The third part of the book: This is not written for me, probably right, probably very useful, but less interesting to me. The conclusion of the book: Back to being utterly convinced, even blown away, by the elegance and persuasiveness of the argument. But it is with the conclusion of the book that I start getting doubts-and start seeing the outlines of my criticisms of the book. Does what Paul says in the conclusion follow from what he said earlier in the book, especially in the first part-the part I so completely agreed with? In a sentence, I worry that the conclusion runs further ahead than the normative framework Paul has laid out can take him.
My Comment has four parts. In the first Part, I raise a general question about the nature of the rule of law. Is it an essential part of the rule of law that it be simple? And do we, therefore, have reason to resist-to even suspect-accounts of the rule of law that are too complex? I tentatively conclude that there really is something to the idea that the rule of law should be simple, which reveals something important about it as a concept. In the second Part, I try to flesh out my worries that Paul's arguments in the conclusion of his book may not be something he can get without sneaking in additional principles other than the rule of law. I want to be able to attack the things he attacks using the tools he uses, but I am not sure we can; I also wonder how much of a loss it is if we cannot. In the third and fourth Parts, I move outside of Paul's book, to maybe suggest two different things he could have concluded on (and I wish he had, and hope he will address): incarceration and immigration.
Chad Flanders. Keeping the Rule of Law Simple: Comments on Gowder, The Rule of Law in the Real World. Saint Louis University Law Journal, v. 62, no. 313 (2018).