Ruler's Sword, Citizen's Shield: The Rule of Law & the Constitution of Power
(2016) 31 Journal of Law & Politics 333
85 Pages Posted: 8 Apr 2017
Date Written: 2016
Having provided in Article XXX for the separation of legislative, executive, and judicial powers, the Massachusetts Constitution of 1780 adds that the measure was chosen “to the end it may be a government of laws and not of men.” In choosing that formulation, the Constitution’s authors were announcing that their community’s separation of powers was an attempt to effect a relationship between law and state power that would make powerful institutions safer than they would otherwise be. The powers to make, execute, and interpret law were to be separated not merely in order to make of law an efficient instrument of behavior guidance. However, according to the “formal” or “thin” vision, efficient behavior guidance is the basic idea underpinning the Rule of Law. Insofar as the formal vision promises to sharpen the knife of state power, but says nothing about a countervailing shield, it offers no reassurance to citizens who are called upon to give up their own powers to those who would wield the knife. Yet, today, formal accounts of the Rule of Law enjoy widespread support, particularly among legal scholars.
In this article, I take sides in the long-running contest between the formal vision of the Rule of Law and its limited government rival, whose leading exponents include James Harrington, John Locke, Algernon Sidney, and the Founding Fathers. However, although I seek to join the conflict, I have sympathy for the view that it has reached an impasse or at least has begun to offer diminishing returns. I hope to point both sides in the direction of a possible way forward. It seems to me that the most promising route is via a better understanding of the nature of the major Rule of Law visions, as well as of the rivalry between them. My chief aim, then, is to propose a method of inquiry which allows us to gain helpful insights into the historical, moral, and political significance of: (i) the limited government tradition’s Rule of Law project; (ii) the formal vision of the Rule of Law; and (iii) the contest between the traditional and formal visions. The method, and the insights it yields, should serve to re-orientate and re-energize our inquiries and debates concerning the Rule of Law. The Rule of Law rivalry is best understood as a clash of visions regarding the proper relationship between law, state power, and interests, expectations, and rights. In order to know where we should stand on the battlefield, we must understand what each side truly represents and what is fundamentally at stake in the conflict.
Keywords: Rule of Law, Constitution, Law, Power, Constitutionalism, Legality, John Locke, Immanuel Kant, Algernon Sidney, Ronald Dworkin, Joseph Raz, Lon Fuller, Constitutional Theory, Legal Theory, Legal Philosophy, Jurisprudence
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