{"id":3355,"date":"2010-03-06T06:43:18","date_gmt":"2010-03-06T06:43:18","guid":{"rendered":"http:\/\/zenpundit.com\/?p=3355"},"modified":"2010-03-06T06:47:50","modified_gmt":"2010-03-06T06:47:50","slug":"the-rule-of-law","status":"publish","type":"post","link":"https:\/\/zenpundit.com\/?p=3355","title":{"rendered":"The Rule of Law"},"content":{"rendered":"

“Law stands mute in the midst of arms. “<\/em> – Marcus Tullius Cicero<\/strong><\/p>\n

“Bad laws are the worst form of tyranny”<\/em> – Edmund Burke<\/strong><\/p>\n

“Make them bow their heads under the yoke of the law”<\/em> – Russian proverb<\/strong><\/p>\n

Frequent commenter Schmedlap<\/a><\/strong>, who has a fine blog <\/a>of his own, asked his readers a very important question<\/a>:<\/p>\n

Today a smart, well-traveled, experienced, knowledgeable guy was telling me that “rule of law” is a concept that we need to stop worrying about. Strongly disagreeing, I asked why. After he explained why, it became clear that he was working with a significantly different definition of “rule of law” than I knew of. It reminded me of recent discussions here and elsewhere over definitions of culture, torture, and terrorism. Given his definition of “rule of law” I agreed that it is not something that we need to worry about. If “rule of law” = his definition, then rule of law is not important. If “rule of law” = my definition, then rule of law is important.<\/strong><\/p>\n

Just curious, what is your understanding of what “rule of law” means?<\/strong><\/p><\/blockquote>\n

I attempted to leave a comment, using a Google Chrome browser, but it failed to “stick”, so I will pontificate in my usual, windy, fashion here instead.<\/p>\n

The Anglo-American tradition of “rule of law”\u00a0is distinct from that of continental Europe or Confucianist traditions in Asia, both of which are primarily concerned in different ways with the health of the state. Anglo-American “rule of law” has been an evolutionary – and sometimes revolutionary – march to constrain the exercise of arbitrary power and, eventually, assure an egalitarian access to justice. When Norman French-speaking\u00a0King John<\/strong> of England\u00a0bitterly complained at Runnymede<\/strong> that the English barons might as well demand his crown, he was right. The Magna Carta<\/strong> was intended to curb John’s capricious tyranny with formal\u00a0rules governing how and when\u00a0the King could exercise power against whom.<\/p>\n

As national monarchies coalesced out of bastard feudalism’s<\/strong> <\/a>kingdoms and medieval\u00a0principalities in the fifteenth and sixteenth centuries, the Kings propagated a theory of <\/strong>divine right absolutism<\/strong><\/a>, which to our ears seems despotic, but to a sophisticated and wealthy, emerging, European\u00a0bourgeoisie at that time,\u00a0sounded like music. Better living under predictable, “national” laws and a King far away than a patchwork of greedy, grasping and unpredictable nobles who were ever\u00a0close at hand. That same, rational, middle-class political sentiment though, soon found fault with even <\/strong>Enlightened absolutism<\/strong><\/a>.<\/p>\n

Lord Chief Justice Sir Edward Coke<\/a><\/strong>, a great man to whom much is owed, but who\u00a0today is largely forgotten, was the great theorist and defender\u00a0of judicial independence and common law from the whims of a sovereign. Without judicial independence, the rule of law is hardly possible because it is\u00a0ultimately\u00a0inseparable from the executive power; Coke was instrumental in moving elite Englishmen’s minds from accepting “Rex lex”<\/em><\/strong> (“The King is Law”) to demanding “Lex rex”<\/em><\/strong> (“The Law is king”).<\/p>\n

The matter was not formally settled with the English Civil War<\/strong>, which came not long after Coke’s death, or even the Glorious Revolution of 1688;<\/strong> nor the American Revolution of 1776<\/strong> or even at Appomattox Courthouse<\/strong>.\u00a0 “The rule of law” is an ongoing struggle that must be constantly renewed by an active and vigilant citizenry if it is to be sustained.<\/p>\n","protected":false},"excerpt":{"rendered":"

“Law stands mute in the midst of arms. “ – Marcus Tullius Cicero “Bad laws are the worst form of tyranny” – Edmund Burke “Make them bow their heads under the yoke of the law” – Russian proverb Frequent commenter Schmedlap, who has a fine blog of his own, asked his readers a very important […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[602,361,48,54,53,117,334,524,260,425,51,78,278,465,545,418,187,603,179,180,381,13],"tags":[],"class_list":["post-3355","post","type-post","status-publish","format-standard","hentry","category-16th-century","category-america","category-anglo-saxons","category-anglosphere","category-britain","category-egalitarianism","category-europe","category-evolution","category-freedom","category-government","category-history","category-ideas","category-legal","category-legitimacy","category-liberty","category-logic","category-politics","category-republic","category-revolution","category-rule-sets","category-society","category-theory"],"_links":{"self":[{"href":"https:\/\/zenpundit.com\/index.php?rest_route=\/wp\/v2\/posts\/3355","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/zenpundit.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/zenpundit.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/zenpundit.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/zenpundit.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3355"}],"version-history":[{"count":0,"href":"https:\/\/zenpundit.com\/index.php?rest_route=\/wp\/v2\/posts\/3355\/revisions"}],"wp:attachment":[{"href":"https:\/\/zenpundit.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3355"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/zenpundit.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3355"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/zenpundit.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3355"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}