In this post, I don’t want to draw any conclusions or argue in favor of any political party, ideal, or platform. I don’t want to take sides philosophically. Rather, I just want to draw some clarifying distinctions in terminology. In other words, I want to invite us all to be a little more precise in the way we use some terms, so that we can avoid confusion and make better arguments. In the words of a friend, I hope that this article will help us all to disagree with each other a little more accurately.
The phrase “the rule of law” gets thrown around a lot, and I don’t think all of us are using the phrase in the same way. Many of us use the phrase quite differently than it has been used in philosophical circles. In the history of the world, political authority has generally been the rule of the strong over the weak. Those who are politically powerful can exercise dominion over those who are less powerful. People have consistently abused the coercive force of government to their own advantage. Kings, potentates, and legislatures have generally been unrestrained in their use of force against their fellow beings. This has generally been termed in philosophical circles as “the rule of man.”
In response to this problem, philosophers began to conceptualize the possibility that legislators, kings, and potentates are restrained in some way by a higher set of rules. This higher set of rules was called the law, and when a legislator is restrained by these rules, this was referred to as the rule of law. Let me set up some preliminary definitions:
Law: A rule that governs the actions of a legislator.
Legislator: Someone who can enact, repeal, or amend statutes.
Statute: A rule, regulation, or policy enacted by a legislator.
These definitions may seem contrary to the way we generally use the terms, but bear with me a moment here. Here’s a diagram of what this looks like:
As we can see, under the rule of law, the top of the pyramid is not a person or a group of persons, but law. To be clear, under the rule of law, the law is not an enactment of a legislator or any political authority. In general, these higher rules (the law) cannot be altered, amended, or repealed by a legislator. The legislator cannot override them. The idea is that the rule of law provides a much more stable form of government, because the power of the legislator is limited by law, and factions competing for power in the government can only advance their interests in the way the law allows.
There have been constant debates about what constitutes the law that restrains legislators. I will only present two perspectives here, but there are many perspectives and many nuanced variations on what constitutes the “higher law.”
Natural Law: Cicero and subsequent natural law philosophers argue that natural law (a system of truth discovered through reason and binding upon everyone) is the law that restrains legislators. John Locke believed in this kind of natural law. He argued that there are certain rights each individual has (which can be documented using reason), and that legislators are bound by this natural law. This natural law is not something that can be altered, legislated away, or amended by any political authority. It was not written by man at all. And thus, it is not subject to the whims of man, but is a stable, constant, reliable source of order.
The role of the legislator, under this view, is to enact the details not prescribed by natural law. For example, the natural law forbids theft, but does not say how long a man should be incarcerated for robbery. The legislator may enact, amend, or repeal the statute the dictates how theft is to be punished or prosecuted. However, the legislator cannot amend, alter, or repeal the law against theft. The law (as opposed to the statute) narrows what the legislator may do. In addition, the legislator can never initiate theft in the name of the law. The law applies to everyone equally, regardless of their office.
Constitution: There is also the perspective that the constitution is a law that constrains the legislator. The constitution, from this perspective, is the highest law of the land, and authorizes a legislature to enact statutes within certain restrictions and guidelines. The enactments of Congress, from this perspective, are statutes, while the constitution itself is law. Unlike natural law, the constitution itself can be amended, altered, or repealed. However, Congress itself cannot do it. The governed as a whole must take certain steps to alter the restraints of the law (or, at least, many more people than just the legislature). Although from this perspective, in the end, people are at the top of the pyramid, the constitution is nonetheless law that constrains the legislature and cannot be altered by the legislature alone. For this reason, government by constitution has often been called the rule of law.
These are just two perspectives among many. Philosophers haven’t been able to work out the kinks in the theory yet. The basic premise of every version of the theory is that legislators are accountable to rules that they did not themselves create. The rules legislators make are statutes, and the rules that bind legislators are law.
Here’s an example: In Elk Ridge, many citizens want to own more chickens than are currently allowed by city statute. Some citizens have chosen to ignore the statute. In response, other citizens have accused them of disregarding the “rule of law.” However, this is a misuse of the term, because city statute can be changed or amended at will by the city council. Strictly adhering to city statute, regardless of what it says, is not adhering to the rule of law. Rather, it is adhering to the rule of man. Basically, what these citizens are saying is, “We believe we must obey the whims of the city council.” Adhering to the rule of law, in contrast, would mean that the city council must adhere to the constraints of natural law, or to the constraints of the constitution, etc. Whether or not citizens of Elk Ridge should follow city code is a different issue than whether or not the city adheres to the rule of law.
Maybe we should follow the enactments of the city council (or any other legislator), or maybe we shouldn’t. That’s not the issue at hand right now. Rather, I simply wish to clarify how we use the term “rule of law.” Blindly following everything a legislature tells us to do, regardless of what they say, is not the rule of law, it is the rule of man. The rule of law refers to holding the legislature accountable to a higher set of rules (that they did not themselves create). Sure, we call the enactments of legislators “laws,” and there’s nothing wrong with the term as such. However, the phrase “the rule of law” isn’t talking about those kinds of laws. It’s talking about law that precedes, binds, and countermands even the legislature itself.
In conclusion, if you want to argue that enactments of the legislature should be obeyed or enforced, don’t appeal to the “rule of law.” Instead, appeal to the particular merits of the particular statute. Let’s save the phrase “the rule of law” for what it was intended—as the opposite of the rule of man. And insisting that we must follow every enactment of the legislature even when those enactments violate higher law (moral, constitutional, or otherwise) is advocating for the rule of man, not the rule of law.
Again, the purpose of this posts is to clarify the language we use in our discussion, not to take sides on any particular debate. Nor am I even trying to advocate for the rule of law. I disagree with Cicero’s approach to natural law, and I’m not sure the Constitution alone can restrain government. So, I don’t fully endorse either perspective on the rule of law that I’ve presented. In fact, Noel Reynolds (a faculty member of the political science department) and I are currently working on an alternative approach to the rule of law that differs from both perspectives presented here. I’m simply wishing to clarify what what the rule of law is, and what it isn’t, so that we can be more precise in the way we use the terms.