David Kopel put up a very nice post about the many philosophers who have written on the distinction between a true government and a gang of armed robbers. According to these philosophers, there are real differences between a gang and a government—that is, the latter operates according to certain fundamental principles of legitimacy. It’s not that the people arbitrarily accept a gang and therefore make it into a government—it’s that there’s a real difference, which depends on certain basic principles.
Now, if one accepts that difference, then one has to also accept the difference between law and arbitrary force. And the difference between law and mere force parallels the difference between government and a gang of robbers. Both are uses of coercion, but a true government operates according to law, while a gang employs arbitrary force. If the rulers resort to arbitrary force—that is, use the state’s coercive power in an unprincipled, arbitrary, fundamentally unfair, self-interested or irrational manner—then their acts do not qualify as law; they are mere uses of force.
And if the rulers do something that is not law, then their act cannot satisfy the “due process of law” requirement. Depriving a person of life, liberty, or property in an arbitrary way—in a manner that is now lawful, but is in the manner of an armed gang—is to deprive that person of life, liberty, or property without due process of law.
That is the doctrine of “substantive due process of law.” If the rulers use their power to, say, take property from one person and give it to themselves or their cronies, or just because they feel like it, then their acts are arbitrary—not law. Thus it violates the due process of law requirement.
One will reject this analysis, of course, if one believes there are no actual differences between a gang of robbers and a government—that the differences between the two are merely habitual, or accidental. But this understanding does not require a belief in a “brooding omnipresence in the sky,” as the so-called realists contend. It simply requires that one believe the differences between arbitrary rule and lawfulness, or between a gang and a government, are real ones, and not merely conventional.
(Cross-posted at Freespace)