Order vs. Obedience: A Political Paradox for Rule-Following

In The Reason of Rules, Geoffrey Brennan and James Buchanan argue for what I call a “Rules First Theory of Justice.” On their Rules First view, rules are prior to justice, and justice is simply obedience to the most fundamental agreed-upon rules. I argue against this view by appeal to another reason for rules provided by Brennan and Buchanan: protection from arbitrary power. Without a standard of justice over and above existing rules, rules will not have the stability to provide this protection. This is because the attitude towards existing rules encouraged by the Rules First approach enables two paths to arbitrary power from well-designed constitutions: ambiguities resolving through elite-favoring interpretive drift, and acquiescence to longstanding elite violations of rules. Both paths allow for the unfortunate result of rendering arbitrary power necessarily just, with disobedience to that arbitrary power now unjust. The first path, additionally, can get there without any steps that the Rules First approach can even call unjust. I then offer natural rights frameworks and relational egalitarianism as possible alternatives for better serving Brennan and Buchanan’s motivations for the Rules First theory.