Rule of Law

AuthorL. Kinvin Wroth
Pages2297-2298

Page 2297

The rule of law is the general principle that government and the governed alike are subject to law, as regularly adopted and applied. The principle is nowhere express in the United States Constitution, but it is a concept of basic importance in Anglo-American constitutional law. In that context, it is not merely a positivist doctrine of legality, requiring obedience to any duly adopted doctrine, but a means to assure that the actions of all branches of government are measured against the fundamental values enshrined in the COMMON LAW and the Constitution.

The rule of law has its roots in classical antiquity, in the Politics of Aristotle and the works of Cicero. As an Anglo-American legal principle, the concept may be traced to MAGNA CARTA (1215). In the thirty-ninth clause of that instrument, King John promised the barons that "No free man shall be taken, imprisoned, disseized, outlawed, or banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and the LAW OF THE LAND." Four centuries later, with the principle well entrenched in the theory and practice of the English common law, EDWARD COKE challenged James I's assertion of the right to exercise an independent judicial power with the words of Henry Bracton: "Quod Rex non debet esse sub homine, sed sub Deo et lege" [The King ought not to be under man, but under God and the law.] After the chaos of revolution, commonwealth, and restoration, the Glorious Revolution of 1688 established the permanent subjection of the king to the law, both of the common law courts and of Parliament.

Coke's Reports and Institutes, JOHN LOCKE'S Second Treatise of Government (1691), and the flood of English radical political writing that accompanied the events of the seventeenth and eighteenth centuries carried these ideas to the American colonies. They became a key element in the ideology of the American Revolution. THOMAS PAINE'S Common Sense (1776) proclaimed, "that in America, the law is king. For as in absolute governments, the king is law, so in free countries the law ought to be king; and there ought to be no other." As the unprecedented era of constitution making that succeeded the American Revolution provoked more sophisticated analysis of the structure of government, it became clear that not only the executive but also the legislature must be subject to law. Thus, JOHN ADAMS more temperately but more...

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