It is not because preserving the rule of law is a French problem that it has no relevance for the United States. Quite the contrary. The current minister of the Interior, the top cop in France, recently declared (see Nicolas Bastuk and Samuel Dufay, “L’État de droit est-il sacré?” or “Is the Rule of Law Sacred?” in Le Point, October 10, 2024):
The rule of law is neither untouchable nor sacred. [Its] source is the sovereign people.
L’État de droit, ça n’est pas intangible ni sacré. [Sa] source, c’est le peuple souverain.
The classical-liberal definition of the rule of law can be borrowed from Friedrich Hayek. In his Law, Legislation, and Liberty, he identified it with
rules regulating the conduct of persons towards others, applicable to an unknown number of future instances and containing prohibitions delimiting the boundary of the protected domain of each person.
The rule of law is a “government of laws” instead of a “government by men,” as the standard formula says. The so-called “sovereign people” itself is only a group of men. Hayek believed that, in the long run, as opposed to political mobs, these general rules or laws necessarily come from the opinion of “the people”—which introduces some indeterminacy in the distinction between the rule of law and popular sovereignty. But like all classical liberals, Hayek was still adamant that the people must not be considered sovereign, that is, it may not hold supreme or unlimited power.
The idea that the rule of law is incompatible with the sovereignty of the people was forcefully expressed by Émile Faguet, a French literary critic and historian of political ideas, in his 1903 book Le Libéralisme (Liberalism):
[My translation:] If the people is sovereign by right, which is exactly what the authors of the Declarations [the 1789 Declaration of the Rights of Man and the Citizen, and the one of 1793], the people has the right, being sovereign, to abolish all individual rights. Such is the conflict. To put in the same declaration the right of the people and the rights of man, sovereignty of the people and liberty for example, at the same level, is like putting water and fire and ask them to please work out their differences. …
The authors of the Declarations, even of the less defective first one, were both democrats and liberals; they believed in both individual liberty and the sovereignty of the people. This led them to put in their work a fundamental antinomy.
[Original French:] Si le droit du peuple, c’est la souveraineté, ce que précisément ont dit les rédacteurs des Déclarations, le peuple a le droit, en sa souveraineté, de supprimer tous les droits de l’individu. Et voilà le conflit. Mettre dans une même déclaration le droit du peuple et les droits de l’homme, la souveraineté du peuple et la liberté par exemple, à égal titre, c’est y mettre l’eau et le feu et les prier ensuite de vouloir bien s’arranger ensemble. […]
Les auteurs des Déclarations, même de la première, quoique moins, étaient à la fois démocrates et libéraux, et ils croyaient à la fois à la liberté individuelle et à la souveraineté du peuple. Ils devaient mettre dans leur œuvre une antinomie fondamentale.
Heirs of the Enlightenment like the French constitutional writers, the American founders committed the same error, even if they were more suspicious of popular sovereignty; their descendants became less suspicious as time passed. The problem remains very relevant in today’s America.
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La Liberté guidant le peuple (Liberty Leading the People), by Eugène Delacroix to commemorate the July Revolution of 1830, which toppled King Charles X
READER COMMENTS
Craig
Nov 8 2024 at 11:57am
Ruke of law is a cornerstone of prosperity. Is Trump a threat to the rule of law? Absolutely, but so too is a creeping Leviathan in a chronic and perpetual state of emergency. Indeed the problen is that the rule of law means conformance with some legislated rule. Does it matter if its a protective tariff, a rent control, confiscatory taxation? All of those things typically occur under color of law, a statute demanding obedience to be in compliance with the ‘rule of law’ based on rules which are themselves often arbitrary and capricious.
David Seltzer
Nov 8 2024 at 3:24pm
Craig, you make an interesting point. In terms of social contract; if individuals were unanimous in accepting The Rule of Law that kept those of us from harming others of us in all ways, It would be sacred as it venerates each person’s dominion, authority and jurisdiction over themselves. Of course I could be wrong.
Peter
Nov 8 2024 at 3:24pm
The rule of law has never been sacred, it’s always just been a veneer to placate the masses as for it to exist it would require the government to surrender sovereignty to it. When push comes to shove, or even simple inconvenience, governments will discard that “rule” in a hot second and does so routinely hence not sure anyone outside law professors and ideologues hold it to be sacrosanct. At best you possibly have a semblance of the rule of law in the tort system when you have two private parties of whom the government has no particular specific interest in, i.e. small claims court is probably the best we have for this.
As public choice theory has beat in my head over the years, there is no “public”, there are just individual government actors making decisions with no meaningful oversight completely capriciously. For the rule of law to exist you need a neutral arbitrator to enforce it and we don’t have that AI yet nor am I confident we ever will; not because of lack of future capability but because those same government actors will ban it as it undermines their graft and personal status/authority.
Craig nails it in his comment but what he misses, like so many, is once you start looking outside tort how’s it’s purely rex lex. We simply traded King Smith for Bureaucrat Smith but the “the law is whatever I say it is” didn’t change.
David Seltzer
Nov 8 2024 at 3:26pm
Peter: Yeah. My comment channeled James Buchanan.
Craig
Nov 8 2024 at 4:11pm
FYI Peter I enjoyed the rex lex reference.
Mactoul
Nov 8 2024 at 9:20pm
Where does the rule of law come from? Is it not a creation of particular people over centuries?
Why would a person obey a particular law? Is it because the law is self-justified by logic and liberal principles? Or because it is the law in the place he finds himself in and the law is backed by the armed might of the sovereign power of the land?
The error lies in the premises of liberal theories themselves that could never come to terms with political boundaries.
The particular eludes the denial of political nature of man. Either you have no government or you have world government.
In case of world government, the laws should be self-justifying . In case of no government there are no laws.
But in reality, there are particular laws and particular rules of law. The French rule of law differs from the English rule of law
Roger McKinney
Nov 8 2024 at 10:52pm
The rule of law originally meant the rule of God’s laws, or natural law. Natural law couldn’t contradict the Bible and legislation couldn’t contradict natural either. The whole package came from theologians during the Reformation.
As we have found, doing away with Christiancity undermines everything. Without the Christian foundation, the rule of law seems silly. It means nothing more than arbitrary legislation and the will of the majority.
But why should the majority hold such an exalted position
Mactoul
Nov 9 2024 at 2:17am
In India during the prime minister ship of Dr Manmohan Singh (2004-14), there used to be a very visible violation of the rule of law. At airports there is a big sign listing out categories of people that are exempt from body frisking — members of legislatures high court judges and the like. Now the sign used to mention Robert Vadera by name who was son-in -law of the ruling party president.
It was very jarring and excited comment showing that people here had grasp of the principle involved.
Mactoul
Nov 9 2024 at 2:23am
Sovereignty is always in context of a territory over which someone is sovereign. Did Hayek say who or what should be sovereign if not the people. What are possible alternatives? A monarch?
There is also a tension between the rule of law, interpreted in contrast to rule of men, and methodological individualism.
Roger McKinney
Nov 9 2024 at 8:53am
Hayek seemed to emphasize tradition and principles. In his last book, Fatal Conceit, he advocated for a religion that worshipped the principles of classical liberalism.
Pierre Lemieux
Nov 9 2024 at 11:28am
Mactoul: In reply to your first question, I think Hayek would have replied that nobody should nor, in a free society, can be sovereign. Even long-term opinion is not sovereign: it just puts limits on what can be done. (Perhaps there remains a tension, but at least we see where it is; and looking there put the focus on constraining rules.)
I don’t think there is tension between methodological individualism and the rule of law. First, methodological individualism is, as its name says, a methodological (ultimately epistemological) principle. Secondly, if we are instead speaking of philosophical individualism, a rule of law unanimously accepted because it is in the interest of every individual (what we can say Buchanan, Tullock, Hayek and, in a different sense, de Jasay were after) is very individualist.
Fazal Majid
Nov 9 2024 at 4:42am
The rule of which laws? The Bill of Rights (alternatively the Universal Declaration of Human Rights), or laws like the Nuremberg Laws that were passed through a legitimate political process but are themselves intrinsically illegitimate? At some point you want axioms that are themselves untouchable and unamendable even by popular sovereignty. The US approach of making the Constitution very hard to amend has proven itself over the last 2 centuries, unlike the French one, as argued by historian Marcel Gauchet.
Peter
Nov 9 2024 at 5:34am
“The US approach of making the Constitution very hard to amend has proven itself over the last 2 centuries” … I’m not sure if you are American or not but from that statement I assume not. The US gets around that by simply ignoring the Constitution or redefining words in it to mean something else hence why we no longer have freedom of speech, association, bear arms, due process, jury trials, free from unreasonable searches, etc. To quote President Lincoln who never actually said these words “The dead founders wrote some words on a piece of paper, let’s see them enforce it” as he suspended the Constitution.
Roger McKinney
Nov 9 2024 at 8:58am
Very true! The Court had ignored the US Constitution for over a century. Trump’s Court seems ti be trying to resurrect the Constitution. Hernando de Soto has shown that most Latin American countries copied the US Constitution for their own, then ignored them.
Mises wrote that the only constitution that matters practically is the will of the majority. The majority will impose it’s will by force if necessary even on a dictatorship.
Monte
Nov 9 2024 at 4:12pm
You’re referring, of course, to Lincoln’s suspension of habeas corpus, which many believe (including me) was justified under the extraordinary circumstances of civil war. Lincoln gave deference to the spirit of the law – arguing that “more rogues than honest men find shelter under it” – in order to prevent rebellion and maintain national security. Congress deliberated, and ultimately ratified, its suspension after the fact.
Student
Nov 9 2024 at 11:11am
It seems that there is one solution to this circularity problem.
The existence of universal moral principles that are derived from underlying human nature.
Popular sovereignty is legitimate but is limited by natural law. I have a natural right to exist, once existing. To exist I have a right to obtain food and shelter. That supersedes popular sovereignty, as it precedes the state. The state is a human concept.
Law based rules are “more fair” because they are objective. We know the rules ahead of time and so there is less ambiguity. But it can only go so far… as it’s lower than natural law. No amount of rule making can ever change the fact that I exist and to exist I need air. To procreate, I being a man, need a woman. You can legislate that a man can be a woman (or vice versa) until you are blue in the face… but you cannot change that fact as it exists at a higher order than does law making.
Rights are derived from nature. This is just the way it is and no amount of government can ever change that.
This might be (probably not) the logical solution to this circularity.
Pierre Lemieux
Nov 9 2024 at 1:09pm
Student: You are correct that we must avoid circular arguments. One of Anthony de Jasay’s pursuits was to build a theory of justice that was not circular (that did not define justice in terms of something else that presupposed a definition of justice). If you are ready for high-level but practical political philosophy, read his Justice and Its Surroundings.
The problem I see with “human nature” is to determine what it is, and to distinguish it from the product of human action but not of human design (to use Ferguson’s terms), that is, to distinguish it from social conventions. Conventions, instead of merely human nature, are the ultimate backstop of de Jasay’s (and perhaps Hume’s) political theory.
(The problem with conventions, as Buchanan notes, is what happens if one develops that can in no way pass the test of unanimous consent.)
Student
Nov 10 2024 at 6:00pm
Interesting. Thanks. I will read this as I have never heard of Justice and its Surroundings.
I have never really understood why conventions and human nature are confused. Human nature is universal and unchanging. Conventions are particular and changeable. This is the same difference as between subjectivity and objectivity.
Human nature is to breathe or to think or to love or to feel distaste for murder or to ponder this mysteries of the universe. Conventions are systems of government or fads or particular legal systems/laws.
The first set are immutable, the second are conventions. Maybe the simplicity hints at a problem, but I don’t think so at this time.
Mactoul
Nov 9 2024 at 9:22pm
To derive the State from individuals has been an enduring liberal endeavor to imperfect success.
An alternative is provided by the view that State, family and individuals are equally irreducible levels of human organization.
So the legitimate authority of State are not derived from any delegation of individual authority but exists in its own right.
Monte
Nov 9 2024 at 5:01pm
Although Montesquieu (who introduced us to the theory of the separation of powers in his anonymously published The Spirit of the Law (1748) never used the term, he nevertheless held the rule of law to be “sacred” in the sense that the integrity of the law upholds the very principles of freedom and justice that protect individuals from arbitrary power.*
Referring to the rule of law as a political religion, Lincoln (and this is where it can be argued that he contradicted himself by suspending habeas corpus), wrote “Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defense…[of] the constitution.”
*La loi devrait être comme la mort, qui n’épargne personne (Law should be like death, which spares no one.). – Montesquieu
Pierre Lemieux
Nov 9 2024 at 8:01pm
Monte: Pace Lincoln, the rule of law is not the rule of any law or any diktat of the Prince. I wrote along these lines in my posts “The Rule of Law and the Proliferation of Laws” and “Governing and the Rule of Law.”
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