… is from page 51 of the late Nobel laureate Elinor Ostrom‘s pioneering 1990 book, Governing the Commons (footnote deleted):
One should not talk about a “rule” unless most people whose strategies are affected by it know of its existence and expect others to monitor behavior and to sanction nonconformance. In other words, working rules are common knowledge and are monitored and enforced. Common knowledge implies that every participant knows the rules, and knows that others know the rules, and knows that they also know that the participant knows the rules….
When one speaks about a system that is governed by a “rule of law,” this expresses the idea that formal laws and working rules are closely aligned and that enforcers are held accountable to the rule as well as others.
DBx: Yes. Legislation, as such – even when duly enacted – does not itself create law. Great danger lurks in the common habit of treating legislation as being synonymous with law – of treating legislation as law.
By treating legislation, as such, as law, persons who act fully in accordance with social expectations can be persecuted by the state as “law breakers” if the actions of these persons violate the dictates of the legislation. The state, by convincing people that its dictates are law, often convinces people to tolerate grotesque abuses of their and other people’s rights – abuses, such as civil asset forfeiture, that run completely counter to most Americans’ sense of right.
Just because some command or prohibition is encoded as legislation and enforced by the state does not mean that that command or prohibition is law.
