This is in contrast with your definition, under which (if I understand correctly) a society without the rule of law is one where enforcement doesn’t follow the written legislation. Of course, the patterns in this mismatch are themselves part of (my-model) law; so if everyone agrees that a piece of legislation (say, the Fugitive Slave Law) is unjust and the refusal to enforce it is just, then the society has (or believes it has) my-rule-of-law but does not have your-rule-of-law (unjust legislation is not enforced).
In this hypothetical world where there is a shared understanding that something like the Fugitive Slave Law is unjust and ought not to be enforced, but for some reason the people sharing this understanding, can’t be bothered to rewrite the law, what’s going on? Why are there written laws at all in that world? What’s their role in coordination?
I’m not saying correspondence between written and enforced law is identical with justice; I’m saying that if there are written laws, and they do not correspond to the law as enforced, then this is symptomatic of a lack of rule of law. In particular, it implies that the written law is meant to misinform, most likely in order to prevent the true norms from becoming common knowledge, which only makes sense if the enforcers intend to apply official standards unevenly in order to benefit from the information asymmetries they set up.
In this hypothetical world where there is a shared understanding that something like the Fugitive Slave Law is unjust and ought not to be enforced, but for some reason the people sharing this understanding, can’t be bothered to rewrite the law, what’s going on? Why are there written laws at all in that world? What’s their role in coordination?
I’m not saying correspondence between written and enforced law is identical with justice; I’m saying that if there are written laws, and they do not correspond to the law as enforced, then this is symptomatic of a lack of rule of law. In particular, it implies that the written law is meant to misinform, most likely in order to prevent the true norms from becoming common knowledge, which only makes sense if the enforcers intend to apply official standards unevenly in order to benefit from the information asymmetries they set up.