The Rule of Law

Often liberal democrats will claim that democracy is superior to other forms of government precisely because of "the Rule of Law." But is their assertion really justified?

Can it not be claimed that during the middle ages, it was understood that the ruler was subject to the Divine Law (and the Natural Law)? And did not the medievals speculate about the limits to authority and to legislation? Even if a temporal ruler had no earthly superior who could judge him, he was still subject to the Divine Judgment, and his rule was not absolute.

(Notes: See Pennington on "princeps legibus solutus" and "plenitudo potestatis" and also Charles N.R. McCoy's essay.)

Should we then identify the Rule of Law solely with the possession of a written constitution and written laws? This seems to be too narrow, since it ignores the role of custom. Writing down laws does seem to be beneficial to the community, facilitating their being made known (assuming of course that the community is literate). Still, there are ways to make laws known to a society that relies exclusively on oral communication and the spoken word.

Nonetheless, written laws have a permanence and fixity that unwritten laws seem to lack, at least in our imagination. Law seems to be more "tangible" when it is written, even though it is first and foremost a spiritual reality. While it is good not to change laws too much, if a law is written does this prevent it from being changed when necessary, because we develop an excessive attachment to the law as it is formulated? (Do we run the risk of document worship?)

And if liberals were reacting to the claims of absolutism and also to the religious wars of the 16th century, were they justified in seeking a religion-free ideology upon which they could ground their political theory?

If the "Rule of Law" is simply that a community is governed by laws rather than by men, and there is an acknowledgement of the existence and priority of Natural Law, then what sets liberal democracies apart from polities that observed the Natural Law? Is it the secular nature of many liberal democratic governments? After all, if this is how the "Rule of Law" is understood by liberals, then it is not a defining feature of liberalism (or of the form of government known as politeia). We must look to other core beliefs of liberalism that set it apart from other political theories and ideologies of government.

SEP: Natural Law Theories