The two thirds of the article that exposes the "rule of law" as the antithesis of a consistent logical system is quite useful. I think it accurately portrays the reality.
The author appears to hold the pre-eminence of property rights over competing rights. The result is an extremely polarized economic system. Medieval feudalism as a model legal system? Yet, we appear to be trending in that direction. When property rights take precedence, then the holders of property buy the "legal" outcomes they want, and they buy the "law enforcement" they want, and they buy the "laws" they want. Such is the author's proposal to remedy the current unrealistic expectations.
The free market proposed by Adam Smith in "The Wealth of Nations" was premised explicitly on a consistent, logical system of moral (God's) law, enforced by the Church (a.k.a. the state - far less distinct at the time). Without that premise - and the article's author takes care to destroy precisely that premise - the free market is destructive. Asymmetries in information and power create monopolies, bubbles and crashes.
So the law is inconsistent and illogical. It is good to remember this. It is good to remember that any large or long lived community can be shown to have betrayed its professed ideals. It is good to remember that historical ideals - our own as well as society's - have typically been superseded by better ones. Does that mean we should abandon those ideals, and let "the market" rule? I agree with Holmes, if only in this: "repose is not the destiny of man". Rather, one works to move toward the ideal; the failure to reach it means there is more work tomorrow. Peace, Justice and Freedom will not find a logically consistent incarnation in our lifetimes nor in our children's, yet the work must continue.
I don't really think he (or much of anyone) really holds "the pre-eminence of property rights over competing rights". This is a common "attack" many liberals make against libertarian arguments and have been thinking about it for some time. What I think is really happening, and that appears to be a favoring of property over other rights, is that property rights can be more clearly and positively assessed as to whether or not they have actually been violated; so a "maybe yes-maybe no" decision on a speech issue, may clearly and positively be a violation on a property issue.
The author appears to hold the pre-eminence of property rights over competing rights. The result is an extremely polarized economic system. Medieval feudalism as a model legal system? Yet, we appear to be trending in that direction. When property rights take precedence, then the holders of property buy the "legal" outcomes they want, and they buy the "law enforcement" they want, and they buy the "laws" they want. Such is the author's proposal to remedy the current unrealistic expectations.
The free market proposed by Adam Smith in "The Wealth of Nations" was premised explicitly on a consistent, logical system of moral (God's) law, enforced by the Church (a.k.a. the state - far less distinct at the time). Without that premise - and the article's author takes care to destroy precisely that premise - the free market is destructive. Asymmetries in information and power create monopolies, bubbles and crashes.
So the law is inconsistent and illogical. It is good to remember this. It is good to remember that any large or long lived community can be shown to have betrayed its professed ideals. It is good to remember that historical ideals - our own as well as society's - have typically been superseded by better ones. Does that mean we should abandon those ideals, and let "the market" rule? I agree with Holmes, if only in this: "repose is not the destiny of man". Rather, one works to move toward the ideal; the failure to reach it means there is more work tomorrow. Peace, Justice and Freedom will not find a logically consistent incarnation in our lifetimes nor in our children's, yet the work must continue.