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The Rule of Law and the Rule of Men: History, Legacy, Obscurity

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Abstract

The distinction between “the rule of law” and “the rule of men” is still in use, after more than two and a half thousand years. It is well known that Aristotle’s aphorism extols government according to institutionalized impersonal rules and condemns government by personal fiat. However, the formulation has another dimension that, during the course of the modern era, has gradually been obscured: Aristotle, following Plato, is making a set of philosophical points about the relations between human nature, the wider natural order, and positive law. The first part of this article offers an account of this neglected dimension of the ancient contrast between “the rule of law” and “the rule of men”. The second part of the article considers the reception of the contrast in the early modern age, focussing on the limited government tradition which emerged in the seventeenth and eighteenth centuries. The article concludes by considering how the rise of so-called “formal” accounts of the rule of law tend not merely to deny the validity of the Classical approach, but to render it increasingly obscure.

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Notes

  1. Aristotle (2000) III.16.1287a.

  2. Krygier (1991); Krygier (2016), pp. 205–208; Krygier (2019a, b); Sadurski (2019); Sempill (2016), section VI.

  3. See the helpful analysis of this aspect of the Republic in Lewis (2009a), section I.

  4. Marx (1992).

  5. Krygier (2016), pp. 205–208.

  6. Endicott (2003), p. 86; see also Endicott (1999), pp. 2–3.

  7. Endicott (2003), p. 86.

  8. Raz (1979), p. 212.

  9. Waldron (2002), p. 141.

  10. Waldron (2011), p. 11.

  11. Finnis (2011), p. 267.

  12. Sadurski (2019), p. 378.

  13. I have relied heavily on the following accounts of the relevant intellectual climate: Canevaro (2017); Guthrie (1971); Guthrie (1986); Jaeger (1945); Jaeger (1947); Lewis (2009a, b); MacIntyre (1981); MacIntyre (1998); MacIntyre (2001); Ostwald (1969, 1989); Sandel (2014).

  14. Krygier refers to Aristotle (2000) at 1287a.

  15. Krygier (2016), p. 206. Citations omitted.

  16. Scalia (1989).

  17. Canevaro (2017), p. 224.

  18. Canevaro (2017), p. 231.

  19. The leading proponents of the classical approach to law are Plato, Aristotle and Aquinas, and this tradition has been continued by an array of modern disciples, including, most prominently today, John Finnis. See Finnis (2014), Finnis (2011) and Finnis (2003).

  20. For a relevant and very helpful interpretation, see Lewis (2009b), section I.

  21. Plato, Republic 331b–d.

  22. Plato (1926) 875c–d.

  23. Endicott (2010),; Simmonds (2007) and Simmonds (2010).

  24. See generally Ostwald (1989), ch 1.

  25. Jaeger (1947). On Plato, see Stalley (2015), p. 66.

  26. Plato (1926) 875c–d.

  27. Whether to characterise law and the rule of law as an “ideal” is a subject of contemporary discussion: e.g., according to Finnis, ‘moral ideal is not a good name for the moral requirement that such an order of rules be desired, sought, introduced, accepted, refined and adjudicatively and forcefully applied—all for the sake of justice, responsible government and the pursuit of the common good…’: Finnis (2010), p. 250. See also the contributions of Nigel Simmonds (2010) and Timothy Endicott (2010) in the same volume of Jurisprudence. See also Finnis (2003), p. 112.

  28. Plato (1921) 151e.

  29. Plato (1921) 167c.

  30. Plato (1921) 168b–c.

  31. Plato (1921) 169d.

  32. Plato (1921) 179b.

  33. Plato (1921) 172b.

  34. Plato (1955) 313b.

  35. Plato (1955) 314c.

  36. Plato (1955) 317d; 315a.

  37. Plato (1955) 316c.

  38. Lewis (2009b), p. 638.

  39. Jaeger (1947), p. 368.

  40. Jaeger (1947), p. 371.

  41. Jaeger (1947), p. 369.

  42. MacIntyre (2001), p. 88.

  43. Plato (1926) 713d–714a.

  44. Compare Stalley (2015), p. 72. Finnis gives an account of the notion of the “central case” method, which bases on the Aristotelian notion of “focal meaning”; Finnis (2011), p. 10 and ch. I.3 (passim).

  45. In Plato’s Laws, it is envisaged that “officials must be subject to law in everything that they do. This is ensured by complex constitutional arrangements”: Stalley (2015) p. 70.

  46. In the Laws, “it is clear that there are objective standards of right and wrong that can be known by reason and embodied in law”: Stalley (2015), p. 71.

  47. Stalley (2015), p. 75.

  48. Plato (1926) 715d.

  49. Waldron (2002), p. 141.

  50. “It is Plato’s project which Aristotle vindicates and … completes”, but he is also involved “in a partial rejection, or at least correction, of Plato”: MacIntyre (2001), pp. 89–90 and generally “Aristotle as Plato’s Heir”, ch VI; see also the discussion in Miller (2015), p. 97.

  51. Guthrie (1975), pp. 477–478.

  52. Jaeger (1947), pp. 358–359.

  53. Jaeger (1947), p. 369. “That justice which manifests itself in the life of the state is according to Plato only a secondary form of this quality in the individual. It is derived from what he calls justice in the primary sense, which is the normal condition of the human soul. In strict analogy to it, social justice is to Plato the perfect harmony of the various constitutive elements of the social organism which we call the state.”: Jaeger (1947), p. 366.

  54. Though the latter once established also promotes the former such that the two elements are mutually supporting. In Plato’s Laws the Athenian argues that “It is certainly not necessary that all citizens be virtuous (the Athenian admits that they will not be), but it is necessary that in the city as a whole a modicum of virtue prevail and that the city’s order be determined by the priority of the goods of the soul”: Lewis (2009a), pp. 67, 78. According to Plato’s Republic the “ideal state, if it can ever be realized on this earth, can rise only from the ‘state within us’.”: Jaeger (1947), p. 367.

  55. Jaeger (1945), vol. 3, pp. 224–225.

  56. Sandel (2014), p. 205. On the view in Plato’s Republic, see Stalley (2015), p. 66.

  57. Emphasis in original. Aristotle, Nicomachean Ethics, 1102a, quoted in Sandel (2014), p. 194. As Sandel points out, Aristotle means “cause” in the sense of ultimate not efficient: the latter, for Aristotle, is choice (prohairesis): Aristotle, Nicomachean Ethics, 1139a 30.

  58. This helps us to explain the range of misunderstandings of the Good: e.g. Aristotle argues that “It appears to be pleasure that misleads the mass of mankind; for it seems to them to be a good, though it is not, so they choose what is pleasant as good and shun pain as evil.”: Aristotle (1934) 1113a 30–1113b 3; see also 1095b 15. Or, as Heraclitus puts it, all humans share access to reason, “even if most men seem to act as though each of them had a private reason”: quoted in Jaeger (1947), p. 360.

  59. Jaeger (1947), pp. 357, 369.

  60. Stalley (2015), p. 61.

  61. Through ‘life experience’ (emperia): Aristotle, The Nicomachean Ethics 1142a 15–20, quoted in Adam Sandel, The Place of Prejudice (forthcoming), p. 189.

  62. Aristotle, The Nicomachean Ethics, 1098a 10 quoted in Sandel (2014), p. 189.

  63. Consider epieikeia (equity) in Aristotle (1934) V.10.1137a35–1137b.

  64. Plato (1921) 151e.

  65. Plato (1955) 314c.

  66. Aristotle (2000) III.11.1282b. Emphasis added. See also, Aristotle (2000) III.1286a: “A king must legislate, and laws must be passed, but these laws will have no authority when they miss the mark, though in all other cases retaining their authority”. See also Sempill (2020).

  67. MacIntyre suggests that Aristotle’s “primary audience”, at least for his works on practical reasoning, ought to be taken to include “students of the Lyceum, students whom Aristotle treats as aware of Plato’s having put in question the beliefs of the ordinary educated Athenian about the polis”: MacIntyre (2001), p. 124.

  68. One of the “dominant images of human life” that emerges “from post-Homeric reflection” portrays humans as aiming “at excellence … [A]ll, whatever their degree of achievement, are measured by a standard which they did not make but which they discover, first within various technai in which they engage and then within the project of achieving the good and the best. Plato makes it part of that project to replace, as far as possible, the images and narratives of the poet and the storyteller by the concepts and arguments of the philosopher. But even he, as is plain from the Republic, cannot describe the philosophical enterprise in a way which completely discards image and myth”: MacIntyre (2001), p. 88.

  69. Lewis (2019b) p. 638 opines that Plato “suggests that law aims at the same thing as philosophy” when, in the Minos, Socrates states that “law is discovery of reality”: see Plato, Minos 317d; 315a. On Aristotle, see Miller (2015), pp. 90–91; 94–95; 98; Aristotle (1934) V.6.1135a. MacIntyre draws attention to an important nuance: “[W]hen we ascribe justice to an action or an agent in virtue of an act or disposition conforming to the principle of distribution constitutionally established in that person’s particular polis, all that we are ascribing is justice relative to that principle. The justice which is ascribed absolutely—that is, without qualification—is the justice which accords with the principle of distribution which is or would be established in the best type of polis (Politics VII, 1238b 36–39).”: MacIntyre (2001), p. 104.

  70. Aristotle says that the law permits its “officers” “to make any amendment of the existing laws which experience suggests”: Aristotle (2000) III.16.1287a; IV-V passim. On reform, see Miller (2015), p. 86.

  71. Arbitrary things: Finnis.

  72. Aristotle (2000) VII.14.1333a–b; VII–VIII passim.

  73. Aristotle (1934) X.9.1180a.

  74. Plato, Laws 713d–714a.

  75. Aristotle (2000) I.2.1253a 16.

  76. The view attributed to Protagoras: see Plato, Theaetetus 152a.

  77. See Aristotle (2000) IV.1.1288b. See generally Miller (2015), p. 83.

  78. Stalley (2015) p. 60, referring to 461b–466a in Plato Gorgias. Also, Stalley avers that for Plato “Genuine law is a divine gift and is likely to be the work of a single inspired legislator who creates an all-embracing system”: Stalley (2015), p. 69.

  79. Stalley (2015) p. 71, referring to the Laws 890d.

  80. Thanks to Julian Murphy for pointing out that these tendencies/risks associated with executive and judicial power are today subject to important countervailing tendencies: e.g., in the case of the former, administrative law offers a significant check; as do judicial reason-giving and appeals, in the case of the latter.

  81. Aristotle (2000) IV.4.1292a.

  82. Shklar (1987).

  83. Shklar (1987), p. 4.

  84. Aristotle (2000) III.16.1287a. See also Aristotle (1934) 1137b 10–30.

  85. Aristotle (2000) IV.4.1292a.

  86. We see parallel questions arise in modern systems. See, e.g., Gardner (2001), p. 217: “In creating new legal norms by legal reasoning, or according to law, the judge plays a different role from that of a legislature. For a legislature is entitled to make new legal norms on entirely nonlegal grounds, i.e. without having any existing legal norms operative in its reasoning. A legislature is entitled to think about a problem purely on its merits. Thus, it can enact laws against pregnancy-related denials of employment without having to rely on the existing norms of the Civil Rights Act (or other specifically legal materials) to do so. But not so a judge. Barring special circumstances, a judge may only create this new legal norm on legal grounds, i.e. by relying on already valid legal norms in creating new ones”.

  87. Although we might not all share Aristotle’s explanation for the existence of such gaps, the idea of their existence, and the notion that judges might seek to fill them, is a familiar one, though controverted by Ronald Dworkin and others. See, e.g., the discussion in Gardner (2001), p. 212: “This makes it inevitable that if judges are to decide all cases validly brought before them, they will sometimes have to go beyond the mere application of posited (including legal) norms. And once they have exhausted all the normative resources of posited norms, what else is there for them to rely on but the merits of the case and hence of the various norms that might now be posited in order to resolve it?”.

  88. Shklar (1987), p. 3.

  89. Provided, of course, that the content of the laws is truly authoritative; recall Aristotle’s dictum that “laws, when good, should be supreme”: Aristotle (2000) III.11.1282b. Emphasis added.

  90. Shklar (1987), p. 4.

  91. Aristotle (2000) VII.14.1333a–b; VII–VIII passim.

  92. MacIntyre (2001), p. 115.

  93. Aristotle (1934) X.9.1180a.

  94. Shklar (1987), p. 3.

  95. For Aristotle, “only if and insofar as good reasons are the causes of actions, and only if and insofar as those good reasons are causally efficacious just because and to the extent that they are good reasons are there any rational agents”: MacIntyre (2001), p. 125.

  96. MacIntyre (2001), p. 116.

  97. MacIntyre (2001), p. 116.

  98. Thanks to Ashley Stocco for observing that decisions made in positive law’s gaps will also tend to be subject to the risk affecting judicial power that was discussed earlier, namely, the risk that its wielders, given the nature of that power, will be more readily distracted from their task of dispensing true justice.

  99. The sentence continues, “and therefore against their will. No freeman, if he can escape from it, will endure such a government”: Aristotle (2000) IV.10.1295a.

  100. Jaeger (1947), pp. 358–359.

  101. In the scheme envisaged in Plato’s Laws, “Virtually all who hold office act as members of collegial bodies rather than as individuals, different elements within the constitution act as checks and balances on one another, and the actions of all officials are subject to scrutiny to ensure that they always follow the law”: Stalley (2015), p. 70.

  102. Quoted in Thomas G. West, “Foreword”, in Sidney (1989) note 28, p. xxi. For another example of the reception of this classical lineage into the Founders’ texts, see John Adams, A Defence of the Constitutions of Government of the United States of America, Against the Attack of M. Turgot, in His Letter to Dr. Price, Dated the Twenty-Second Day of March, 1778, in Adams (2000), p. 154.

  103. Harrington (1992), pp. 20–21 (alluding to Aristotle and Livy (“Imperia legum potentiora fuerunt quam hominum”)).

  104. Harrington (1992), p. 21.

  105. Byrd (1994) p. 293.

  106. I agree with F. Michelman that “[i]t would be a plain misreading to reduce the American constitutionalist premise of the government of laws to the ‘rule of law’ or Rechtsstaat idea concerned only with the regularity of legal administration and, derivatively, with the form of legislation....[S]urely it will be agreed that in American constitutional rhetoric the notion of ‘a government of laws’ has also shared the meaning of formulas like ‘higher law.’” Michaelman (1988), p. 1501. See also: Arendt, “Foundation I: Constitutio Libertatis” (1965), p. 161; Corwin (1928). John A. Bingham, who drafted section one of the Fourteenth Amendment, declared to Congress, “no man…shall be deprived of life or liberty or property without due process of law—law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice.” Quoted in Nelson (1998), p. 78; ch. IV passim.

  107. Sempill (2016), p. 381.

  108. Allan (2010); Allan (2013).

  109. Dworkin (1986), pp. 11–12.

  110. Declaration of Independence para. 2 (US 1776).

  111. Translated as: which shall have been rightly defined. Sidney (1989), ch. 3, § 26, at 471.

  112. Sempill (2016), p. 375.

  113. McIlwain (1947), pp. 21–22.

  114. Sidney (1989), ch. 2, § 19, p. 188. Emphasis added.

  115. Raz (1979).

  116. Raz (1979), p. 214.

  117. Locke (1689) II § 202. Emphasis in original.

  118. Plato (1955) 313b.

  119. Plato (1955) 314c.

  120. Sidney (1989), ch. 3, § 16, p. 403.

  121. Sidney (1989), ch. 3, § 15, p. 399.

  122. Sidney (1989), ch, 3, § 16, p. 403.

  123. Sempill (2016), p. 379.

  124. Sidney explicitly relies on Aristotle’s distinction between kings and tyrants, which hinges on their relationship to higher law, as modern thinkers might put it: Sidney (1989), ch. 3, § 7, pp. 353–54. See also Sidney (1989), ch. 2, § 1, p. 79. John Locke’s approach is similar. Locke (1689) II, ch. XVIII.

  125. Raz (1979), p. 214.

  126. Raz (1979), p. 212.

  127. Raz (1979), p. 213.

  128. Sempill (2016), p. 348, 395-.

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Sempill, J. The Rule of Law and the Rule of Men: History, Legacy, Obscurity. Hague J Rule Law 12, 511–540 (2020). https://doi.org/10.1007/s40803-020-00149-9

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