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 In general, these higher rules (the law) cannot be altered, amended, or repealed by a legislator.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.
Jeff T, good points all. It might be helpful for the legally minded to distinguish between “malum en se” and “malum prohibitum.” The first means something is bad in itself, and the other means something is bad because it is prohibited by government. (For Spanish speakers, it is interesting to see the Latin root in the phrase “malo en si.”)
The natural law says some things are bad in and of themselves and are always bad no matter what (taking life, liberty and property). Therefore, the “rule of law” would mean government cannot do these things because it is violating natural law. Therefore, government can and should only set up laws (malum prohibitum) that support the natural law and the rule of law. So, the government would set up courts that would protect life, liberty and property by coming up with appropriate punishments.
The interesting question comes at what point are citizens justified in rebelling against a government that violates natural law. The Founders spent a lot of time debating this issue before issuing the Declaration.
Btw, if you see Noel Reynolds say hi for me. I worked with him a lot when he was Mission Prez in South Florida (I was the Homestead stake PR director and also on the high council).
I don’t know. If your point is that the phrase “rule of law” is a philosophical term of art that has a distinct meaning, which is different than the popular meaning, then that’s a point to be noted. But just because the phrase has a specific meaning as a term of art in the context of political philosophy doesn’t necessarily mean that it can’t have other meanings in popular speech. Words are slippery things, meanings change over time, and insisting on a specific meaning may be appropriate in the context where that phrase is a term of art, but isn’t necessarily appropriate outside that context. Clarity of meaning is more attainable, I think, by insisting that we define our terms rather than insisting on a particular definition for a particular term.
I see your point. =)
To clarify, I think my point is that the term “rule of law” originated in philosophical circles as a contrast/alternative to the “rule of man.” Philosophers have since championed the rule of law, since it seems to be the antidote to tyranny and government abuse. Non-philosophers have followed their lead, and have also championed the rule of law. People value “rule of law” because that is what philosophers have told them is the best alternative to tyranny.
However, people have not used the term correctly, and are thus championing a version of the “rule of law” that is actually what philosophers refer to as the rule of man. This confusion is counterproductive, as legal philosophers champion the “rule of law” and non-philosophers champion the “rule of law” and they are really arguing the opposite of each other (and don’t even know it). I believe that the technical definition makes more sense, as it expresses what the term was originally intended to express. For that reason, I believe the technical definition will be of more value to the political discourse than the way it is commonly used.
Though, I think that when non-philosophers champion the “rule of law,” they are usually not championing “rule of man.” Rather, they mean something more like “respect for law instead of anarchy/corruption.” So whether the “laws” (i.e. statutes and constitution, in the terms of this discussion) come from a “rule of law” system or from a “rule of man” system is, I suspect, not all that important to the non-philosopher who champions the “rule of law” (i.e. takes the position that people should “obey, honor, and sustain” the law). For this reason, I’m not sure its totally fair to say that such a person is championing “rule of man.”
But if “rule of man” means obeying statutory law, even when statutory law originates in a “rule of law” system, then I’m wrong. I just don’t know enough about how these terms are defined in their specialized context to know whether that’s true or not. I’m only a lawyer, not a philosopher.
JKC, that’s a decent point. When discussing Latin America, my area of expertise, I often say that the countries that respect the “rule of law” are more prosperous than those that don’t. And this is certainly true. Now, interestingly, the ones that are most prosperous also have laws that support the natural law, meaning those that most respect life, liberty and property. So, there does appear to be some overlap.
This strikes me as a rather confused way of talking about the rule of law. It conflates the idea of the rule of law with a fairly strong natural law position. As a matter of both ordinary and philosophical usage this is mistaken. There are lots of legal philosophers who speak about the rule of law without subscribing to anything as strong as the natural law position that you lay out here. For example, Lon Fuller — one of Noel’s favorite legal theorists as I recall — saw the rule of law as subjecting human behavior to the government of rules. The idea of rules, however, place certain adverbial constraints on government action and the idea of the rule of law corresponded to these adverbial constraints. While Fuller flirts with a natural law position, you can subscribe to his view without adopting anything like Cicero’s position (or Locke’s for that matter).
Incidentally, even when you are reading Cicero on law, I am not sure how seriously we should take him. When Cicero writes as a philosopher it feels to me like he is more or less regurgitating the dominant Stoic position at the time. On the other hand, Cicero was also a practicing lawyer and a Roman politician. If you look at the ideology of Roman law in the Republican period, I don’t think that it really corresponds to the kind of neat Stoic natural law position that you outline. The Mos Maiorum feels much more evolutionary and Hayekian than the cosmic natural law and Stoic.
BTW, say “hi” to Noel Reynolds for me. I worked as his RA in college. He’s a good guy…
As I stated clearly in the article, Nate, the perspectives I outlined above are just two of many variants and nuances of rule of law theory. The only common premise that most all variants of rule of law theory have is that legislators are restrained in some way by higher rules that they did not create. Lon Fuller was not a natural law theorist, but he did believe that legislators were restrained in the kinds of statutes they could enact and still adhere to the rule of law. In Fuller’s case (if I remember right), the constraints are more linguistic than moral, in that statutes need to be generalized rules as opposed to direct commands. Nonetheless, adhering to the rule of law in Fuller’s perspective meant that legislators couldn’t just enact any statute they wanted, and thus his theory fits the model I describe above.
I wrote an entire paper on why we shouldn’t take Cicero seriously.
JKC, as I said in the article, “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.” Thus, I’m not defining the rule of man as simply insisting that we follow a statutory system within a rule of law system. Rather, it is insisting that statute is binding regardless of its content or form. That’s the difference.
Well at least we agree about Cicero!
I think that what Fuller would say is that while the legislator may enact any statute they wish, there are some statutes that will fail in the sense that they will fail to govern human behavior using rules. That said, I tend to agree with Cass Sunstein that the constraints envisioned by Fuller are quite weak and that the rule of law is compatible with a great deal of government regulation and coercion.
I also think that the person who thinks that we have a duty to follow the law, even when we regard it as unwise or even unjust is on to something important about the rule of law. Collapsing such a claim into the idea of “the rule of men” has a kind of Jack-Welch-John-Birch-Society-Slogan-from-the-1950s feel to it. I do think that there is something important about the authority of law, actual municipal nitty gritty enacted law — nut just the airy-fairy something that stands behind it — that is tied up with the idea of the rule of law. Here, I think that Joseph Raz’s discussion of authority, law, and reason giving is important. Not all law is legitimate and should be followed, but law does act as a kind of exclusionary reason, which means there are cases when one should obey the law — stupid as it is — because it is the law.
However, people have not used the term correctly … I believe that the technical definition makes more sense, as it expresses what the term was originally intended to express.
I’ll admit to being a little surprised to see a prescriptive approach being advocated by a M* perma.
Funny… I have two of Raz’s books open on my lap, and am currently writing a paper on how Raz’s idea of exclusionary reasons muddied the conceptual waters and sidetracked discussions on the rule of law. =)
Peter, normally I’m a descriptivist when it comes to language. However, in this situation, when a term has become a focal point of major political debate, and there isn’t a clearly understood conceptual definition of the term, it seems as though clarifying the term will help clear the waters and make room for a better discussion. The technical definition seems most apt to the task.
I also think that the person who thinks that we have a duty to follow the law, even when we regard it as unwise or even unjust is on to something important about the rule of law.
I agree that not all rule of law positions are natural law positions. In many variants, unjust and unwise laws are still binding. However, there are some qualifications that are required. For example, in Fuller’s argument, laws must be prospective. A legislator that enacts retrospective legislation is not adhering to the rule of law, but is rather enforcing his whims on the populace (rule of man). So, while the constraints on law are not necessarily moral constraints or even prudential constraints, they are constraints nonetheless. From Fuller’s perspective, insisting that we follow a legislator, even when that legislator is passing retroactive legislation or legislation that is self-contradictory, is not upholding the rule of law. Therefore, my original claim still stands.
I wonder if part of the confusion here is determining which “law” is the law that rules when we use the phrase “rule of law,” and relatedly, who gets to claim the benefit of that law. In other words, if you say that some higher law, whether that is moral law, natural law, constitutional law, etc. is the “law” that rules, then you are saying that that higher law rules the legislator. That is not necessarily the same thing as saying that the citizen or subject is entitled to invoke that higher law in order to refuse to obey statutory law. You could just as consistently take the position that the higher law rules the legislator, but that the statutory law rules the citizen. Saying that the citizen is not entitled to enforce the higher law may or may not be good policy, but it doesn’t mean that the legislator is not subject to the higher law. So it is entirely consistent to advocate for the 13th article of faith position as to the citizen while advocating for “rule of law” in the sense of the legislator being constrained. I guess this is why I don’t think it’s fair to say that those who use “rule of law” in the colloquial sense are actually advocating for a “rule of man” position.
Of course the problem with Fuller on retrospective laws is that we have retrospective laws all the time on a common law system. Fuller developed a theory of law largely designed to respond to the philosophical problems created by Nazi legislation and in so doing created real philosophical problems for the common law. It’s an odd mistake for an expert in Anglo-American contract law to have made, but he was from a generation ofscholars fixated on Nuremburg.