The Rule of Law (Without Liberalism)

A Collection From the Archives

“The imperial majesty should be armed with laws as well as glorified with arms, that there may be good government in times both of war and of peace, and the ruler of Rome may not only be victorious over his enemies, but may show himself as scrupulously regardful of justice as triumphant over his conquered foes.”

— Justinian, Institutes

“It is a statement worthy of the majesty of a reigning prince for him to profess to be subject to the laws; for our authority is dependent upon that of the law. And, indeed, it is the greatest attribute of imperial power for the sovereign to be subject to the laws.”

— Theodosius and Valentinian, Digna Vox, Cod. 1.14(17).4

“Who, then, shall rule the ruler? ‘The Law, the king of all, Both mortals and immortals,’ as Pindar⁠ says.”

— Plutarch, Ad Principem Ineruditum

One sometimes hears, from legal or philosophical liberals, that the rule of law is an achievement of liberalism. The claim seems implausible on its face. For better or for worse, law, law codes, legal customs, law courts and legal judgments have been central features of the Western tradition at least since the Roman republic, long before anything faintly resembling the liberal tradition, or anti-tradition, came on the scene. (The same is true, mutatis mutandis, for the rich history of law, law codes, legal norms and customs, and legal judgments in the Chinese tradition).

In order to claim that the rule of law, rightly understood, is an achievement of liberalism, one would have to either claim that the greatest lawmakers and jurists of the tradition were deluded or mendacious, or else adopt an account of the rule of law that in effect begs the question by building liberalism into the definition itself (as when legality in any non-liberal version is classed, by sheer fiat, as “rule by law” rather than “rule of law.”) Unsurprisingly, then, the liberal claim is not only implausible, but in fact false, as evidenced by the sources and materials in the following collection from our archives.

What seems to have happened is a mental process that one sees in other domains as well: for the devout liberal, all good things are entailed by liberalism or entail liberalism or both, in a kind of Panglossian political theodicy. Hence various claims that democracy and liberalism are mutually supportive or even entail one another, whereas in fact they are at best uneasy bedfellows, frequently at odds; that liberalism and “authoritarianism” are antonyms, whereas in fact it is perfectly possible for liberalism to be authoritarian; and so on. So too with liberalism and the rule of law, which liberals hope to appropriate for themselves, against all evidence. Indeed, for the classical lawyer, the real question is not whether the rule of law can obtain in the absence of liberalism, for it obviously can. The real question is whether it can obtain in the presence of liberalism.

Conversely, and also perversely, one sometimes encounters the same assumption from critics of liberalism, whether on the “left” or (increasingly) the “right”: the assumption that if one rejects liberalism, one must also reject the rule of law, or declare it a sham, a mere mask for power, or at best epiphenomenal, the froth of superstructure. The classical lawyer, however, sees this as a grave error, an internalization of the liberal attempt to appropriate sole title to the rule of law. If the rule of law can exist, and for centuries or millennia has existed across the globe, in the absence of liberalism, then rejecting liberalism by no means entails rejecting the rule of law. Several pieces below address that side of the problem, most directly the one titled “Law-Skepticism On The New Right.”

What follows is a personal collection of my own pieces on these themes, as I have been working on them for some time now. But please do not overlook the many fine articles in and around the same themes from editors and guests of The New Digest elsewhere in our pages, or those of our predecessor site, Ius et Iustitium. To choose only a few examples from too many excellent possibilities: Conor Casey on “The Prince and His Lawyers” here; Michael Foran on “Justice, Peace, and the Rule of Law” here; Stéphane Sérafin on “The Rule of Justice” here; and a series from Aníbal Sabater on “Dante’s Lawyers,” of which the most recent is here, with links to the others.

Enjoy!

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1. What might a non-liberal foundation for the rule of law look like? In this essay, I offer an example from Bracton and earlier sources in the tradition: the rule of law might be grounded in the fiat (in several senses) of the Prince who submits himself to the law, by parallel to the Marian fiat of submission to the divine will and reason.

2. Does the rule of law require (some version of) the separation of powers? It does not. The separation of powers, however defined, is merely a contingent institutional arrangement, which sometimes accompanies the rule of law and sometimes doesn’t. Far from having any connection to legality, or liberty, or any other good, the main effect of the separation of powers is merely to protect the status quo ante, whatever that may happen to be.

3. Like every other instance of rule, save that of the divinity, the rule of law has outer boundaries. Indeed the highest respect for law is to identify and clarify those boundaries — to know when and where law has its proper office. And the rule of law is certainly not to be equated with the rule of courts, an entirely different proposition. In this essay, I draw on Lon Fuller’s natural-law proceduralism to clarify both the limits of the rule of law, and the difference between the rule of law and the rule of courts.

4. The so-called “new right,” or sectors of it (the new right is not one thing), has become law-skeptical and worshipful of what is sometimes called “raw power.” Ironically, as explained above, this mirrors and internalizes the mistaken liberal assumption that anything that is not liberalism can only be power-worship. In the following essay, I aim to stay true to both sides of a dictum of Pascal: “la justice sans la force est impuissante; la force sans la justice est tyrannique” (justice without force is powerless; force without justice is tyrannical).

5. If certain officials, notably the President, are not answerable for certain conduct in court, does that mean they are “above the law”? No; this is a confusion between the directive and coercive force of the law, as I argue here.