Rule by law

How much better it would have been if that would have been the expression, rather than “rule of law”.  It might have saved us the confusion of imagining “law” as something somehow existing and possessing authority apart from the expressed will of the sovereign.  The implied opposite of “rule of law” is “rule of men”, as if there weren’t always men deciding what the law should be.  The opposite of “rule by law” would be “rule by direct prescription”.

Law is one way the sovereign rules–by general rather than specific commands.  It is often a good way, making the operation of government generally predictable so that subjects can plan their actions accordingly.  In some cases, justice may even require it.  For instance, ex post facto punishments are unjust unless the behavior newly proscribed by positive law is already proscribed by natural law (and I would not favor retroactive punishments even then).  It is even a good practice to separate the legislative and executive functions, not so they can “check” each other, but to force the legislature to formulate laws abstractly, knowing someone else of possibly unlike mind might be charged with their execution.  Similar things might be said of the English custom of common law, which English conservatives often praise for being an expression of “spontaneous order” rather than parliamentary fiat.  Perhaps there are reasons that a judge ruling with an eye to precedent gives better results than a legislature ruling with an eye to the common good (or ideological misconceptions thereof), but either way we are dealing with authoritative acts of the collective sovereign, with “rule by men”.

The sovereign certainly can, in his duty to protect the common good, issue specific orders.  Suppose I’m a wizard who invents a spell that will change the Earth’s rotation period to one year, putting half the world in permanent day and half in permanent night.  Desperately, the lawyers search, but there is no law that forbids tampering with the angular momentum of the Earth or any other planet.  No one would say that the state could not forbid me to do such a thing, or intervene to stop me if necessary.  Perhaps you will find some law that says the state may take unspecified acts to avert urgent dangers to the public, but this is just an acknowledgement that the state is not restricted to rule by law.

25 Responses

  1. For instance, ex post facto punishments are unjust unless the behavior newly proscribed by positive law is already proscribed by natural law (and I would not favor retroactive punishments even then).

    Definitely. If you can retroactively punish people for exploiting loopholes, then what will lawyers do for a living? Pretty much the definition of injustice.

    Similar things might be said of the English custom of common law, which English conservatives often praise for being an expression of “spontaneous order” rather than parliamentary fiat.

    The difference between the common law and ex post facto being . . . oh I get it. Lawyers do the common law thing, but legislators or the king do the ex post facto thing, so the former is ok.

  2. “How much better it would have been if that would have been the expression, rather than “rule of law”. It might have saved us the confusion of imagining “law” as something somehow existing and possessing authority apart from the expressed will of the sovereign. ”

    Do you then deny the existence of Natural Law?

  3. DrBill,

    Good point.

    American conservatives hate rule by judges, but English conservatives love it. At least we don’t pretend to be principled about our preference. It’s just because we don’t like the laws our judges have been making.

  4. @The Hapsburg Restaurationist:

    The natural law is binding only because it has been promulgated by God, the Supreme Lawgiver. St. Thomas writes:

    “Thus from the four preceding articles, the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.

    “Reply to Objection 1. The natural law is promulgated by the very fact that God instilled it into man’s mind so as to be known by him naturally.” (Summa Theologiae, First Part of the Second Part, Question 90, Article 4)

  5. As Carl Schmitt famously put it, “Sovereign is he who decides on the exception.”’ The sovereign is a definite agency capable of making a decision, not a legitimating category (the ‘people’) or a purely formal definition (plenitude off power, etc.). Sovereignty is outside the law, since the actions of the sovereign in the state of exception cannot be bound by laws since laws presuppose a normal situation. All laws have an outside, that is, they exist because of a substantiated claim on the part of some agency to be the dominant source of binding rules within a territory. The sovereign determines the possibility of the ‘rule of law’ by deciding on the exception: “For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists.”

    He argues that “the exception is different from anarchy and chaos.” It is an attempt to restore order in a political sense. While the state of exception can know no norms, the actions of the sovereign within the state must be governed by what is prudent to restore order. Barbaric excess and pure arbitrary power are not Schmitt’s object. Power is limited by a prudent concern for the social order; in the exception, “order in the juristic sense still prevails, even if it is not of the ordinary kind.”

  6. “American conservatives hate rule by judges, but English conservatives love it.”

    English conservatives see the judges as a check on the arbitrary power of the executive. Remember, Parliament is sovereign, it can make and unmake any law whatsoever and can reverse any judicial decision it pleases.

  7. @David Konietzko,
    Of course you’re right, but that does not justify the legal positivism present (or apparently present) in this post. All of God’s law is necessarily reasonable, because God Himself is by nature supremely reasonable, but “the expressed will of a sovereign” need not be so (especially in human sovereigns), and the definition given by St. Thomas states that law is an ordinance “of reason”.
    “But in order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason. And in this sense is to be understood the saying that the will of the sovereign has the force of law; otherwise the sovereign’s will would savor of lawlessness rather than of law.”But in order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason. And in this sense is to be understood the saying that the will of the sovereign has the force of law; otherwise the sovereign’s will would savor of lawlessness rather than of law.”

  8. In my last.comment I meant only to present the quote from St. Thomas once, and I beg general pardon for my technological ineptness.

  9. Natural law is an interesting case, in that it is binding on individuals even without corroboration by human authorities. However, even the enforcement of natural law is an act of sovereign will. First because natural law often requires specification by positive law, and second because which aspects of morality are enforced by the state and how violations are punished are not themselves determined by natural law, but by human prudence.

  10. @Bonald,
    Thank you, that explanation makes more sense of your post. I have a somewhat hasty nature, and so ask the first questions that come into my mind. However, if there is already an existing law or principle of legitimacy, that originates in the just and natural relation of persons, what gives the sovereign will its sovereignty?

  11. My technological ineptness strikes again! I meant to say “However, if there is *not* already an existing law”
    I would also like you to know that I ask out of genuine interest in your answer.

  12. > what gives the sovereign will its sovereignty?

    Indeed, natural law requires that we obey the authority set up to guard the common good, and we can even infer from unaided reason that all authority is delegated from God, but what makes sovereignty rest on a particular person or group, or a particular procedure for picking the ruling person or group? I’ve avoided thought on this, except to note the failure of efforts to get behind the relationship of authority to some quality of the ruler or decision of the subject that justifies it. We encounter sovereignty as a brute fact of the social world from which we draw moral consequences. The traditional answer is that authority is legitimate when it is established, and establishment happens through those accidents of history from which traditionalists prefer to avert their eyes.

  13. @Bonald,

    Might I suggest an alternative view? That there does exist a principle of Legitimacy? Of course, this principle requires that the Sovereign remain under the Law, that is, the Natural Law as given force by the Ius Gentium. Of course, this system requires an Emperor, to uphold and confirm the Ius Gentium, but even then the Emperor is bound to act by the same Law. The Sovereign receives authority from the Ius Gentium, and confirmation (or the nonrecognition in the case of its absence) of that authority from the Emperor, who has received his authority from requirement of Natural Law that there be such a Sovereign over sovereigns, and confirmation of that Authority by the intention of the Roman Pontiff.

  14. There’s nothing in natural law which indicates that there needs to be a supranational political authority.

    The problem, THR, comes from your acceptance of political liberalism. This leads you to believe, wrongly, that law is something other than an ordinance of reason for the common good, and consequently at the disposal of the sovereign.

    Like all non-anarchist liberals, you believe in a mythical neutral state, which protects freedom without making any authoritative decisions.

  15. @AR
    Ah old friend, you’re back in time for this to get interesting
    First I posit this to you. https://thejosias.com/2015/06/24/world-government-is-required-by-natural-law/

    Secondly you portray mean in a false position old chap. I do believe in actual authoritative decisions and actions, such as the emergency suppression of websites dangerous to the order of Christendom, to give one example. The Defense (internal and external) and the Administration of Justice are two of the most key functions of the State.

  16. @AR,

    Also, what do you mean by “at the disposal of the sovereign”? That if there is an ordinance of Reason, he can do what he wills with it, for instance, not enforce the precept of the Natural Law against murder? Is that not voluntarism?

  17. That was a rather silly argument for the josias (which is usually straightforward and logical in its expositions).

    Certainly, Alexander and Cicero do not constitute “Catholic social teaching”, nor does Dante.

    In any case, the argument is clearly without merit, for where does this world authority come from, and in what sense can nature require that which has never existed, at any time? And then, of course, there is the issue of what to do if two societies both claim to have the Emperor.

  18. But it has existed, or was Charlemagne never crowned? Granted it has never existed in perfect form, but you will find excellent arguments for it the form of the Ius Gentium, which is upheld not only in the encyclicals of the Pontiffs, but in the Jurists of Ancient Rome. As to you question, the imperial dignity is received from the Roman Pontiff, as you will find in the writings of Emperor Louis II.

  19. If this is not enough, in Pope Leo XIII’s encyclical Diuturnum Illud, you will find ” the Roman Pontiffs, by the institution of the Holy Empire, consecrated the political power in a wonderful manner. “

  20. I suppose medieval history might not be your strong suit, but Charlemagne never ruled all of Europe, much less the whole world.

  21. @AR,
    I know that Medieval political theory is not your strong point, but do be reasonable. Authority is not necessarily control. Charlemagne’s office as Emperor gave him a limited authority over the world that even a Protestant such as James Viscount Bryce understood. Such an authority was necessarily non-territorial. But I fear that your liberal bias prevents you from understanding.

  22. Dr. Bill,

    The difference between the common law and ex post facto being . . . oh I get it. Lawyers do the common law thing, but legislators or the king do the ex post facto thing, so the former is ok.

    This is the big problem with the Anglo-Saxon system it takes power out of the hands of traditional authorities and puts it into the hands of lawyers. Even today in the US it is primairly lawyers who are front in center in attacking traditional norms. Look at how many of our leaders are lawyers, likewise most of the Founder Fathers had legal backgrounds. If you study many of the legal arguments of the radical Whigs in 17th century England one is struck by the boldness of their opportunistic appropriation of English medieval law. Conservatives moan about modern activist judges finding constitutional rights where none exist but that is precisley how the common law has been used for centuries now.

  23. “Conservatives moan about modern activist judges finding constitutional rights where none exist but that is precisely (sic) how the common law has been used for centuries now.”

    If the Common Law is judge-made law, Civil Law systems are professor-made law. A French legal opinion, after rehearsing the facts, will have three headings, the Code, quoting the relevant article(s), « La doctrine » citing the writings of commentators and jurists and « La jurisprudence, » citing court decisions. Of the three, « La doctrine » is far and away the most important.

    Writers of the Historical School, like Savigny, Mommsen and Ihring bewailed the Reception of Roman law as atrophying and vitiating the nation’s law-making capacity, by cutting it off from its indigenous, customary law; of course, for the Pandectists and for many of the authors of the Code Napoléon, like Portalis, the writings of the Classical Jurists, Ulpian, Paulus, Papinian and Pomponius represented the acme of human reason.

  24. […] Positive law can take two different forms. […]

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