The Rule of Law (Jamie Jones Commentary)

(Shutterstock)

“Rule of law.” The term, once fundamental to the normative order of our republic, has become a hot discussion topic as of late.

For most lawyers, the idea of the rule of law is so entrenched in the fabric of democracy that it is shocking to hear it discussed as if it is controversial. After all, upholding the rule of law has long been included in the mission of the Arkansas Bar Association.

So what is the rule of law, and why should the business community care?

Simply put, the rule of law establishes the norms of behavior for government and its citizens and dates back to the Magna Carta. The rule of law includes concepts of separation of powers, due process, transparency, precedent and an independent judiciary. James Madison contained its ideals in Federalist Paper No. 51, writing: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The framers of the Constitution solved Madison’s problem by creating three separate branches of government, but this only works if the three branches respect and maintain the rule of law. Think of the rule of law this way: What if when playing a game of Monopoly, the banker could hand out money to anyone he pleased? Would you still play without rules applied fairly?

What if laws became arbitrary? What if the rules you relied on to understand your business suddenly disappeared?

The rule of law is thus integral to the business community. Laws exist to ensure predictability and stability. If judicial orders did not have to be followed, for example, injunctions would offer little assistance to a business needing to stop a key employee from taking its main client. Enforceability of contracts could be questioned more than ever. Property, including intellectual property of trademarks and copyrights, may lack protection. Without the expectation of protection, those with the ability to create new technologies would have little incentive to do so. The ability to protect real property may come down to armed guards rather than a deed. Creditors may not have recourse against a debtor. Limited liability members and corporate officers may not enjoy protections from personal liability. In other words, there is no protection of the law and the rules would be ever-changing.

I recently ran across the following joke splashed on a product in a local store:

Genie: I shall grant you 3 wishes.

Me: I wish for a world without lawyers.

Genie: Done, you have no more wishes.

Me: But you said 3.

Genie: Sue me.

Fantastical sarcasm for sure. However, the point is valid. Without the rule of law, there are no rules. As business leaders, we may take the legal system and the lawyers who seek application of the rule of law for granted because they usually work quietly in the background. But the stability provided is essential to innovation, investment and fair competition. The rule of law isn’t just a legal concept — it’s a business imperative.

Jamie Jones is a partner in the litigation practice group at Friday Eldredge & Clark PLLC and the incoming president of the Arkansas Bar Association.