In Plato's Laws, the Athenian Stranger claims that the gods will smile only on a city where the law "is despot over the rulers and the rulers are slaves of the law." This passage is the origin of the slogan "the rule of law not of men," an abbreviation of which forms our phrase "the rule of law." From Plato and Aristotle, through John Adams and John Marshall, down to us, no idea has proven more central to Western political and legal culture. Yet the slogan turns on a very dubious metaphor. Laws do not rule, and the "rule of law not of men" is actually a specific form of rule by men (including, nowadays, a few women). These rulers are not slaves to anything. Furthermore, the construction of the slogan -rule of law and not of men-has unfortunate connotations. It suggests that the personal qualities of the human rulers required to secure the rule of law are nothing more than forbearance and disinterestedness-a resolution to stay out of law's way.
What if the rule of law is more demanding than this? What if it turns out to be a particularly elaborate and technically ingenious form of the rule of (let me say) men and women? What if the rule of law establishes a moral relationship between those who govern and those whom they govern? Furthermore, what if sustaining this relationship requires certain moral attitudes and virtues on the part of the governors that are not simply disinterested forbearance, and not simply the moral attitudes and virtues required of everyone?
David Luban, Natural Law as Professional Ethics: A Reading of Fuller, 18 SOC. PHIL. & POL'Y 176 (2000).
Scholarly Commons Citation
Luban, David, "Natural Law as Professional Ethics: A Reading of Fuller" (2000). Georgetown Law Faculty Publications and Other Works. Paper 1581.