The Home of American Intellectual Conservatism — First Principles

October 23, 2017

FEATURE ARTICLES
Page 1 of 1
Last Things: The Rule of Law
James V. Schall, S.J. - 08/05/10
Speed limit sign

I.

Almost the first thing that Aquinas says about law is that it is an “external,” as opposed to an “internal,” principle of human action. Indeed, he says that it is a “measure” or “rule” of human action. What does he mean by this rule or measure? The individual person or citizen who observes what the law specifically states does not himself establish the content or norm that the law requires and sets down to be observed. This latter content comes from the one who makes the law, not the one who observes it. This is why the law is a “standard” or “measure” of actions of many subject to it. It provides the what-is-to-be-done of the action; what it wants done. If the speed limit is fifty miles an hour, that is the measure of our prudence when we drive, granting no extraordinary immediate circumstances that may indicate a slower or faster speed. The norm or standard intentionally does not hold in extraordinary circumstances. The law is general but not omnipotent in foreseeing every circumstance.

The statement of the law, however, does not just sit there by itself, though it needs to be known and understood both by the lawmaker and those required to observe it. It is intelligible and ought to conform to the other requirements of good law—that is, that it be established by the proper authority, directed for the common good, and promulgated so that everyone understands what it requires. It is not sufficient for a lawmaker to concoct a law just because he wants to. In this sense, law is a statement of a reasonable thing to do, the carrying out of which requires the understanding and cooperation of others who also know what the law requires or measure.

From this point of view, the “rule of law” means its specific statement, what it requires or commands us to do or abstain from doing. The speed limit is fifty miles an hour in this zone. The tax is due April 15. Voting takes place on the first Tuesday of November. We are summoned to jury duty on October 10. We measure our actions by these “rules” or norms that explain why we act as we do when these situations come up. The law thus guides or indicates the intelligibility of our particular act in observing it.

Human actions go in many directions and do many things. But if we speak of law as related to human action, we first speak of the effort to state what the law requires in certain defined circumstances. Once we understand what the law states or commands, we can proceed to obey or violate it. In either case, the role or norm remains the same. If I drive sixty miles an hour, that speed is now measuring my action, but the law remains at fifty. In this sense, I am in violation of the commonly established measure. I am governing my action by my own standard, not that of the polity. The enforcing and judicial arms of rule are designed to enforce the observance of what is reasonable even when my actions are not in conformity with the specifics of the law.

Thus, the “rule” of law can, in one sense, be understood as a “measure.” Even though the one subject to the law does not formulate its particular statement as the norm of what is to be observed, he still understands its requirements and how they came to be established. The first thing to notice, then, about the phrase “rule of law” is that it measures human actions that fall under its scope. That is, if there is a law and I wish to act responsibly, I must take into consideration not only my own judgment about what is reasonable in this case before me but also the common judgment of others as represented by the specific law and what it requires. This is why Aquinas called this norm or rule an “extrinsic” principle. It is not that I do not understand it, but that I do not formulate the specific rule. That is a judgment of prudence, based on experience and purpose, set forth by the lawmaking organs of the community to which I belong.

II.

Whether it is better to be ruled by law or by men is a perennial question already found in Plato and Aristotle. In general, we answer this question by saying it is better to be ruled by law, provided that the law be understood and applied by men who know its particular application here and now. With Plato, however, we are always mindful that divine rule is always particular, fit to the immediate needs and situation of the one ruled. This is why all theories of justice have added to them theories of equity. They allow for the particular cases contrary to the letter of the law that in fact arise beyond the initial vision of the general law. Among men, law is stated in generality; it applies to a certain kind of case delimited by conditions of time and procedure that are unique and unrepeatable.

The human lawmaker cannot envision every particular circumstance which the law might anticipate. The best he can do is to state a general case or situation that frequently occurs in different ways. On this basis, he can establish some rule or norm that serves to alleviate the problem at hand if there is no law. Fifty miles an hour may not be the best rule, but it is reasonable and better than no rule. It gives drivers a concrete estimate of what is reasonable in this area. When all obey the law, everyone is free in a new way, a reasonable way, because of a mutual understanding and observance of a common rule.

The “rule of law” was designed, however, to be a liberty of those who were to obey the law. To obey the law after the manner of human beings, everyone needed to understand the law. Thus, if the law were constantly changing or not clear, it would be difficult for anyone to know what exactly was required of him. The rule of law looked to bind the rulers. It is designed to limit government. The liberty of the ruled depends on their knowing what their rulers could and could not do, on how they were supposed to act, on what bound them to act legally in a given manner. It needed to be clear what the rulers were licensed or allowed to do and not to do. The rule of law made clear that what the lawmakers decided to enact—that is, what was the law to be obeyed—was systematically and properly constituted. The rule of law meant that the lawmakers and enforcers were themselves bound by the law. They did not act in their own name.

The notion of responsible government thus always includes the “rule of law” as one of its central components. In classical political philosophy, the tyrant or autocrat is someone who can do what he wants because he has the power to do what he wants. He is his own law. He has coercive power that is not limited by any law. No theory of law denies that some enforcement arm needs to be associated with law-abidingness. The key question is always how are we to enforce the rule of law when those elected or chosen to rule violate the laws of their own system of government? Courts and elections were in part established so that rulers who did not obey the laws of their own regime could be brought back to law-abidingness. Theories of revolution were fashioned for extreme cases. But ultimately, nothing can prevent a people from themselves failing to see to it that their own laws are enforced. Nor can a country always prevent foreign powers from taking over its own system.

But essentially, the “rule of law” is an instrument of human reason that is designed to limit rulers so that they act in a reasonable and defined manner. Those who are to obey the law have their liberty in knowing the reasons that justify the law and its enforcement. The law “measures” our acts in those areas in which it establishes a general rule to which all are obligated in the pursuit of their own purposes insofar as these purposes need coordinating with the actions of others. The law is noble, but it is itself designed to enable the particular actions of human beings to be carried out in a reasonable manner. To be ruled by law means to be ruled by reason.

But the expression “to be ruled by men” is obviously true also. We are to be ruled by men who are themselves ruled by law but who understand the limits of the general nature of law and the particular nature of human actions. The men who rule by law are themselves bound by the law. But the law itself is designed that the good of each person comes about in all of his actions. The “rule of law” is, then, as it has always been understood to be, intrinsic to the charter of our liberties, to the liberty of acting reasonably to our fellows and of having them so act to us.

The rule of law primarily limits rulers so that they act in a known and defined way. It likewise sets standards or rules about what it is to act reasonably in defined areas of life that fall under the law. The “rule of law” is designed to leave us free to pursue the thousands of important things that are not under the law. When absolutely everything is placed under the civil law, we no longer have freedom but have alien rule that deprives us of the spontaneity of our own reason and actions within the framework of our relation to others.

To learn more about natural law and its connection to conservative thought, visit the ISI short course on American Conservative Thought.

Page 1 of 1

Library of Modern Thinkers

Amazon.com Logo

By clicking the logo above to shop Amazon.com, every purchase helps to support ISI.

Intercollegiate Studies Institute • 3901 Centerville Rd. • Wilmington, Delaware 19807-1938 • www.isi.org
Please direct all inquiries regarding First Principles to [email protected].