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The Origins Of Modern Constitutionalism
The Rule of Law
by Wormuth, Francis D.


Even as early as the sixteenth century Bodin protested that a mixed government was an impossibility, that sovereignty was indivisible.1 Pufendorf in the seventeenth century agreed that sovereign power could not be divided, but he suggested that if the members of a mixed government be considered to constitute a single corporate body, with division on the level of administration rather than of sovereignty, there was still a state, though "one very ill-adapted to transact business."2 The cautionary remark was warranted. If power is dismembered to such a point that the state exhibits the deadlock of which Polybius and Montesquieu spoke, it may well lack the capacity for action which sovereignty demands. And lacking sovereignty, it may cease to be a state; it may become, instead, as Rome became, a civil war. Political change is not prevented by making it legally impossible. The idea that security lies in inaction reflects a confidence in a permanent sustaining natural law which history does not justify. Professor McIlwain has said of the doctrine of checks and balances that it "has worked disaster ever since it was adopted."3

The notion that law must be general and prospective cannot achieve even a verbal reconciliation with the doctrine of sovereignty. Sovereignty implies a definition of law solely in terms of source. Law is a mere act of will on the part of the sovereign; special and retroactive acts of will are as genuinely law as any others. This being so, it is odd to find that the champions of sovereignty and the imperative theory of law adopt the more restricted definition. Thomas Hobbes said that an act was not law, nor valid, if it were retroactive or discriminatory as to persons.4 John Austin felt obliged to distinguish between "laws or rules" on the one hand and "occasional or particular commands" on the other.5

These concessions pay tribute to the moral values underlying the tradition of constitutionalism. The requirement of generality in legislation implies equality. The requirement of prospectivity makes deliberate choice the touchstone of judgment, and equates judgment to justice. These elements do not occur in all definitions of justice. Modern penology is therapeutic rather than retributive. It denies that men should all be treated alike, and that they should be judged on their actions; it argues that potentialities for the future, rather than atonement for the past, should be the guiding considerations. This is not impossibly far removed from Plato's identification of justice with intelligent management. Plato thought general rules inadequate, and he ruled out retribution as well, for to Plato faulty choices were mere involuntary irrelevancies. But Rhadamanthine justice, which only records and censures, attributes a dignity to the criminal which is lacking in Plato's scheme. From this point of view the criminal has a right to be punished, for punishment is a vindication of his status as a moral being. There is something to be said for this. Probably the Greeks were right in identifying equality and law with democracy. It is doubtful that democracy could survive in a society organized on the principle of therapy rather than judgment, error rather than sin. If men are free and equal, they must be judged rather than hospitalized.

Matthew Arnold called the Rhadamanthine conception of justice Hebraic, and it has also been called Christian. The fact is that this view has found expression among many peoples and has never exclusively dominated the thinking of any one. It has conflicted with the arguments for mercy, for equity, and for the Platonic idea of intelligent management of affairs. On the other hand, it has never entirely yielded to any of these.

But those who have accepted the proposition that law is general and prospective have had little success in reducing the definition to precise terms. It is possible to frame laws which meet any formal tests of generality that can be contrived and yet effectively discriminate between individuals. Nor is prospectivity an easy guide to follow. The American courts, in the late eighteenth and early nineteenth centuries, adopted the doctrine of "vested rights" and declared invalid, as retroactive, any law which touched interests acquired in the past; but it is hardly possible to frame a law which does not so operate on the past. We are not dealing here with a subject fit for the dissecting table of the analytical jurisprudence; we are dealing with a sentiment.

This sentiment by no means supplies a full philosophy of justice. It deals with the form rather than the content of legislation. A. V. Dicey, in describing the virtues of the English "rule of law" in his Law of the Constitution, spoke of the enthusiasm which greeted the fall of the Bastille. "When the fortress was taken, there were not ten prisoners within its walls; at that very moment hundreds of debtors languished in English gaols. Yet all England hailed the triumph of the French populace with a fervour which to Englishmen of the twentieth century is at first sight hardly comprehensible. ... Its fate was felt, and felt truly, to herald in for the rest of Europe that rule of law which already existed in England."6 Yet the debtors can hardly have felt this generous glow. It surely makes a difference what the laws are which rule. Men have always thought so. Various substantive theories of justice have existed from time to time, but these have complemented rather than supplied the constitutionalist tradition. To the Greeks, the proper legal rules for religion prescribed piety toward the local gods. To Aquinas, they prescribed Catholic orthodoxy. Since the seventeenth century, freedom of worship has progressively gained ground. No one of these attitudes is inextricably associated with constitutionalism. It is true that modern liberalism and revived constitutionalism came into the world together, and have in some degree been associated with each other, but they can by no means be identified.

Nevertheless attempts have been made, since Dicey popularized the expression "rule of law" in 1885, to put the authority of Aristotle and the long tradition of constitutionalism behind one or another local opinion. Dicey himself equated the rule of law to the decision of cases by common law courts, in particular opposition to the administrative justice of the continent, blandly ignoring the fact that the Rechtstaat, with its Roman law doctrine of the suability of the sovereign, might more properly than Great Britain represent itself as practicing the rule of law. The Supreme Court of the United States has read Dicey's opinion into the two due process clauses of the constitution, thus converting an amendment which was adopted to validate the Freedmen's Bureau into a device to limit administrative authorities.7 In 1937, during the controversy over the proposed enlargement of the Supreme Court, it was widely proclaimed that the rule of law prescribed not only judicial control of the executive but also the number of judges on the bench. Miscellaneous publicists have gone even further, arguing that the rule of law involves a censorship of the substance as well as the method of governmental action. This appears to be the thesis of Walter Lippmann's The Good Society, which makes constitutionalism "the gradual encroachment of true law upon willfulness and caprice." Friedrich von Hayek, in his The Road to Serfdom, identifies the rule of law with the economic ideas of Adam Smith.

These points of view, in that they mark out areas removed from the scope of governmental action, have a certain external resemblance to the medieval doctrine of double majesty. Their content, however, is altogether modern. They are not a part of the tradition of constitutionalism. What that tradition has stood for, for twenty-five hundred years, is the mechanics of the mixed state and the proposition that law should be general and prospective, this latter having been implemented in the seventeenth century by the doctrine of the separation of legislative and executive power. The mixed state is incoherent in theory and inadequate in practice. The constitutionalist view of law, on the other hand, represents a conception of justice so long and so widely held that it is probably safe to say that no state can afford to ignore it. It teaches the method rather than the substance of governmental action, but it is a method to which men have often demonstrated their attachment.

NOTES

(1) The Six Books of a Commonweal (Richard Knolles trans.: London, 1606), pp. 184-5, 194.

(2) De Jure Naturae et Gentium, VII, v, 13. ( 3 ) Constitutionalism Ancient and Modern (Ithaca, N. Y., 1940), p. 146.

(4) Behemoth, in English Works (ed. Molesworth), vi, 227, and Dialogue of the Common Laws, in English Works, vi, 62.

(5) Lectures on Jurisprudence (5th ed.: London, 1911), i, 92.

(6) (7th ed.: London, 1908), p. 188.

(7) Crowell v. Benson, 285 U. S. 22 (1932); St. Joseph Stockyards Co. v. U. S., 298 U. S. 38 (1936).

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