Posted on by Bonald

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.

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