Stern – The Common Law and the Religious Foundations of the Rule of Law
Craig A. Stern [1]
The Common Law and
the Religious Foundations of the Rule of Law1
Craig Stern’s article will be reprinted in its entirety in Volume 38 of the
University of San Francisco Law Review
The Philadelphia
Society National Meeting
April 26, 2003, New Orleans
The king must not be under man but under
God and under the law, because law makes the king.[2]
Whatever it may mean,[3]
the rule of law commands apparently universal respect–or at least receives
apparently universal lip-service–among civil governments.[4]
To adhere to the rule of law must be a good thing, if only because
hypocrisy is the homage vice pays to virtue.[5]
Classically, the rule of law has been counterpoised to the rule of man, a
rule held to be much inferior. Man
is willful, apt to help friends and to harm foes even when obliged to judge
fairly. Accordingly, the standard
law dictionary gives these two pertinent definitions of “rule of law”:
“2. The supremacy of
regular as opposed to arbitrary power . .
. .
–Also termed supremacy of law.
3. The doctrine that every
person is subject to the ordinary law within the jurisdiction
. .
. .”[6]
The rule of law is government according to rules.[7]
Somehow, it entails that the men who govern not only govern by law, but
also see to it that they themselves are governed by law.
The paragraph you have just read is loaded with presuppositions regarding
civil justice, authority, man, the good. One
might call a system of such presuppositions a religious system.
Delve deeply enough, and the ideal of the rule of law rests upon the most
fundamental beliefs.[8]
It rests upon fundamental beliefs as a concept, and it rests upon
fundamental beliefs as a practice. This
paper attempts to limn the religious foundations of the rule of law, and
especially the rule of law embraced within the common law, the basic
Anglo-American jurisprudence.[9]
Aristotle may have been the first to identify and endorse the rule of
law.
For example:
Rightly constituted
laws should be the final sovereign; and personal rule, whether it be exercised
by a single person or a body of persons, should be sovereign only in those
matters on which law is unable, owing to the difficulty of framing general rules
for all contingencies, to make an exact pronouncement.[10]
The rule of law, embracing “two senses”–“one which
means obedience to such laws as have been enacted, and another which means that
the laws obeyed have also been well enacted”[11]–in
its richest meaning entails the rule of God Himself:
He who commands that law
should rule may thus be regarded as commanding that God and reason alone should
rule; he who commands that a man should rule adds the character of the beast.
Appetite has that character; and high spirit, too, perverts the holders
of office, even when they are the best of men.
Law [as the pure voice of God and reason] may thus be defined as
“Reason free from all passion.”[12]
As
much as possible, ruling is to be done by divine reason, not by man so apt to
depart from reason.[13]
Though not part of a genuine theistic system, these propositions rest
upon a religious base, in the broad sense.
“One of the most conspicuous features of Aristotle’s view of the
universe is his thorough-going teleology.”[14]
It is God that orders the world, inspiring motion by love.[15]
Man’s passion draws him away from this order.
The rule of law, in the richest sense, secures a rule according to God
and not according to imperfect men.
To remove from Athens to Jerusalem, it is perhaps tautological
to assert that the foundations for the rule of law in Judaism are religious.
The Torah commands that judges judge according to God’s law, who
himself gives judgment through them.[16]
Man, the bearer of God’s image, is not only by virtue of that image to
be judged according to law, equal before the law, and by lawful process, but
also, by virtue of that image, equipped to judge in such a fashion.
God Himself submits to His own law, and is faithful to His covenants,
acting according to His own law when dealing with men.[17]
One might think that the divine nature of Jewish law would
lead to a regime of divinely inspired judges, prophets led supernaturally to
resolve legal questions by inspiration. Such
a regime might be called a rule of God in some ways to be contrasted with a rule
of law. Jewish law has firmly
resisted such a direction. Perhaps
the most famous passage from the Talmud on this point is the case of the Oven of
Akhnai:
A dispute arose between
R. Eliezer b. Hyrcanus, on the one hand, and R. Joshua and his colleagues, on
the other, in the matter of an oven owned by a man named Akhnai.
R. Eliezer’s opinion was that the oven was ritually pure, while R.
Joshua and the other Sages believed that the oven was ritually impure.
The Talmud states:
It has been
taught: On that day R. Eliezer brought forward every imaginable argument [to
prove his point], but they did not accept them.
He said to them: “If the Halakhah
is in accord with me, let this carob tree prove it.”
normal”> Thereupon, the carob
tree was uprooted 100 cubits out of its place–others state 400 cubits.
They responded:
“No proof can be brought from a carob tree.”
Again he said to
them: “If the Halakhah is in accord
with me, let the stream of water prove it.”
Whereupon, the stream of water flowed backwards.
“No proof can be brought from a stream of water,” they rejoined.
“If the
normal”>Halakhah is in accord with me, let the walls of the study hall prove
it.” Whereupon the walls leaned
at an angle, as if to fall. But R.
Joshua rebuked them [the walls], saying: “When scholars are engaged in
halakhic disputation, what business have you to interfere?”
Hence, out of respect for R. Joshua they did not fall; but
out of respect for R. Eliezer they did not right themselves either, and thus
they are still standing aslant.
Again he said to
them: “If the Halakhah is in accord
with me, let it be proved from Heaven.” Whereupon,
a heavenly voice cried out: “Why do you dispute with R. Eliezer, seeing that
in all matters the Halakhah is in
accord with him?” R. Joshua arose
and exclaimed: “It is not in
heaven” [Deuteronomy 30:12]. What
did he mean by this? R. Jeremiah
said: “The Torah has already been
given at Mt. Sinai. We pay no
attention to a heavenly voice because You [God] have already written in the
Torah at Mt. Sinai, ‘Follow the majority'” [Exodus 23:2].
The story reaches its
climax with this conclusion:
R. Nathan met
Elijah [the prophet] and asked him: “What did the Holy One, blessed be He, do
at that time [during the discussion between R. Eliezer and R. Joshua]? Elijah
replied: “He smiled, saying ‘My children have bested me, my children have
bested me.'”[18]
The law, once given, is
itself the rule. Human judges are
to interpret the law as best they may without the aid of additional special
revelation. The rule of law trumps
the direct rule of the Lawgiver Himself.
Such a view appears to differ from the teaching of Islam,
though a look at Islam also demonstrates the religious nature of the rule of
law. To be sure, Islam has its holy
law of the Koran, the Shari‛a. But
the Shari‛a is for Muslims alone.[19]
And even for Muslims, the Shari‛a does not support a full-blown
legal order for a polity:
The writ
of holy law runs through all things, but this does not mean that Islamic
societies have been governed solely by the shari‛a.
On the contrary, in almost all respects relevant to the government of a large
society, the shari‛a is
radically deficient. It has
therefore been necessary in every epoch for the ruler to lay down laws of his
own which will guarantee his power, facilitate administration, and permit the
collection of taxes. But these laws
have no independent legitimacy in the eyes of those compelled to obey them.
They do not create a space outside religion in which freedom is the norm.
On the contrary, they merely add to the constraints of the holy law the
rules of a political order which is backed by no de
jure authority, only by de facto
power. In any upheaval they are
rejected entirely as the arbitrary edicts of a usurper.
Hence, there is no scope in a traditional Islamic society for the kinds
of purely political development, through the patient building of institutions
and secular laws, that we know in the West.
Change, when it comes, takes the form of a crisis, as power is challenged
from below in the name of the one true Power above.
If the
only way in which a law can be legitimated is by deriving it from a command of
God, then clearly all secular laws are seen as mere expedients adopted by the
ruler. In such circumstances it is
unlikely that any kind of constitutional, representative, or democratic
government will emerge.[20]
Laws are “the arbitrary edicts of a usurper,” not the stuff
to support a rule of law. “Islam
denies the idea of the law of nature, and denies that man is made in the image
of God, both to protect the Quran’s notion of transcendence (
normal”>tanzih), as opposed to the Bible’s view of God’s covenantal
transcendence and immanence.”[21]
If Allah may decree as he wills,[22]
what failure is it for a human ruler not to do likewise?
One would expect, therefore, that the flourishing of the rule of law in
the Anglo-American tradition has something to do with Christianity.
In the sense important to our discussion at least, Christianity is a part
of the common law. Beyond the level
at which Mr. Jefferson and Mr. Story argued the question, the religious ideas of
the men that developed the common law–many of whom were prelates or at least
clerics[23]–necessarily
affected their work. Ideas have
consequences. That their ideas were
specifically Christian made their consequences upon the law all the more
necessary, as shall appear.
To draw the connections between the Christian faith and the
rule of law cultivated in the common law tradition is not to suggest that the
Christian faith is the only possible basis for the rule of law.
Nor is it to deny the influence of notions from outside the faith.
Perhaps the present discussion is best seen as an attempt to show that
the Christian faith provides an especially rich soil for the growth of the rule
of law, and that the flourishing of the rule of law in the common law tradition
owes much to the Christian faith.[24]
Four Christian ideas–doctrines in fact–are both especially
important to the faith and especially important to the rule of law in the common
law tradition. The first of these
is the doctrine of God Himself, His being and His work.
Second is the doctrine of man, made in God’s image.
Third is the fall of man, the fourth is the atonement of man.
The very centrality of these doctrines to the religious beliefs that
supported the development of the common law assured its commitment to the rule
of law.
The Christian faith holds that God is the I AM, the uncreated
Creator of all that is, who is from everlasting to everlasting.
He is also the God of Abraham, Isaac, and Jacob, a God of relationship,
of covenant. He is love.
His love is expressed, in part, in prescribing law, law for all His
creation, understood both as rules descriptive of what is, and as rules
prescriptive of what ought to be. His
law comes from His will, but His will expresses His nature.
“The being of God is a kind of law to his working
. .
. .”[25]
As Sir William Blackstone puts it, God is wise, and so His law is
perfectly suited to His creation.[26]
God also keeps the covenants and the laws He makes.
David declares of Him, “thou hast magnified thy word above all thy
name.”[27]
God holds all authority,[28]
but He authorizes others to exercise that authority as His ministers.
Exercising authority for God does not make one a god.
Caesar and God are distinct.[29]
And yet Caesar is appointed by God to administer a share of His justice.[30]
Civil government is not divine, though invested, like any human
authority, with a commission from God. As
such, it is under God and His law, and obliged to reflect God’s justice.[31]
The common law tradition demonstrates a profound commitment to
these truths. The common law proper
operated among a diversity of authorities, civil
and
ecclesiastic. The king’s writs
that issued to bring cases before the common law courts applied only to certain
cases. They supported no
totalitarian assertion of authority. And
“the rule of writs is the rule of law.”[32]
Authority of the common law courts was limited by law.
The common law was but one of several competing legal systems.[33]
Professor Harold Berman ascribes in large measure to such division of
authority the rise of the rule of law in the West.[34]
The very diversity of legal authorities required rules limiting their
respective operations.
And beneath this diversity–perhaps most clearly in the
diversity that embraced church as well as kingdom–lay the belief that ultimate
authority rests with God, who has apportioned the ministerial exercise of
authority to diverse human instruments.
A famous monument to this diversity of authority is Magna
Carta: “In the first place, we
have granted to God, and by this our present charter confirmed, for us and for
our heirs forever, that the English church shall be free, and shall hold its
rights entire and its liberties uninjured .
. .
,” King John pledged.[35]
But this pledge would have been idle had not a king been thought bound to
his word. Under God, and before
God, a king must keep his pledge, like God Himself who keeps His pledge.[36]
Architect of the Magna Carta, Archbishop Stephen Langton of Canterbury,
manifests in the charter not only his mastery of canon law, but also the
familiarity with Holy Writ to be expected from the man who is credited with
articulating the Bible into the chapter divisions we use to this day.
Magna Carta thus stands for a kingship limited in its
authority by law. The king is not
God, but under Him and His law that obliges one to keep one’s word.
The king is limited in his power over the church.
He exercises only a partial government.
Beyond these things, however, Magna Carta commits the crown to proceeding
according to law: “No free
man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or
in any way destroyed, nor will we go upon him, nor send upon him, except by the
legal judgment of his peers or by the law of the land.”[37]
If God Himself is just and adheres to the law, so must His minister
proceed according to the law.[38]
And proceeding according to law entails organs to exercise
judgment–courts–as separate from organs exercising will or force.[39]
The method of the common law itself manifests this rule of law
notion that civil government should pursue judgment and not simply will or
force. Consider the development of
law by judges in deciding the cases before them.
Judges were sworn to decide cases according to the law.
They were not to innovate or to create law.
They held no legislative power. Rather,
they were to declare and apply what was already law before their declaration.
Law ruled, and judges were but its oracles.[40]
This rule of law in the courts of the common law reflected the
Christian doctrine of God in at least two distinct ways.
First, civil justice mirrored God’s in its commitment to law.
The law established the standard the breach of which supported a claim
for redress, itself governed by law in its process and remedy.
Justice is a matter of judgment in applying and vindicating the law.
But, second, this method supposed that law existed before courts had
occasion to declare and apply it. To
some degree, common law is the custom of the realm, the conventions from time
immemorial.
But to a great degree, common law is the law of nature, the
law prescribed by God Himself for His creation.[41]
As Blackstone explains, in the legal treatise standard in America at the
Founding,
This law
of nature, being coeval with mankind, and dictated by God himself, is of course
superior in obligation to any other. It
is binding over all the globe, in all countries, and at all times:
no human laws are of any validity, if contrary to this; and such of them
as are valid derive all their force, and all their authority, mediately or
immediately, from this original.[42]
Men
know the law of nature by reason, and more perfectly, by divine law “to be
found only in the holy scriptures.”[43]
Municipal law, such as the common law of England, “is properly defined
to be ‘a rule of civil conduct prescribed by the supreme power in a state,
commanding what is right and prohibiting what is wrong.'”[44]
Except where it reflects custom on matters indifferent, the common law
reflects true right and true wrong, the law of nature.
If a supposed rule of the common law derogated from the law of nature, it
in fact was not law at all:
[I]t is an established
rule to abide by former precedents, where the same points come again in
litigation: as well to keep the
scale of justice even and steady, and not liable to waver with every new
judge’s opinion; as also because the law in that case being solemnly declared
and determined, what before was uncertain, and perhaps indifferent, is now
become a permanent rule which it is not in the breast of any subsequent judge to
alter or vary from according to his private sentiments: he being sworn to
determine, not according to his own private judgment, but according to the known
laws and customs of the land; not delegated to pronounce a new law, but to
maintain and expound the old one. Yet
this rule admits of exception, where the former determination is most evidently
contrary to reason; much more, if it be clearly contrary to the divine law.
But, even in such cases the subsequent judges do not pretend to make a
new law, but to vindicate the old one from misrepresentation.
For if it be found that the former decision is manifestly absurd or
unjust, it is declared, not that such a sentence was bad
law, but that it was not law; that
is, that it is not the established custom of the realm, as has been erroneously
determined. And hence it is that
our lawyers are with justice so copious in their encomiums on the reason of the
common law; that they tell us, that the law is the perfection of reason, that it
always intends to conform thereto, and that what is not reason is not law.
Not that the particular reason of every rule in the law can at this
distance of time be always precisely assigned; but it is sufficient that there
be nothing in the rule flatly contradictory to reason, and then the law will
presume it to be well-founded. And
it hath been an antient observation in the laws of England, that whenever a
standing rule of law, of which the reason perhaps could not be remembered or
discerned, hath been wantonly broken in upon by statutes or new resolutions, the
wisdom of the rule hath in the end appeared from the inconveniences that have
followed the innovation.[45]
The common law presupposed a just rule extant when the case arose
and when the case was to be decided.[46]
Customs, sifted and supplemented by God’s own law of nature–revealed
in the Bible and in reason–provided law for the courts to apply.
Such a law of nature requires a legislator, and the Christian
God–Creator, Lawgiver, and Author of Revelation–has supplied this necessary
element to the common law.
Yet another aspect of the Christian doctrine of
God supported the rule of law. God
is the judge of all mankind. He
holds men to His law, and to their oaths. When
kings swore to uphold the law, and when judges swore to decide cases according
to the law, they understood that God would vindicate His righteous law, and
would require of them to keep their solemn word.
This understanding cautioned those administering the law to
submit to law, whatever opportunity they might have to evade merely human
justice.[47]
The Christian doctrine of God is most
fundamental to the rule of law in the common law tradition.
But a chief link between the doctrine of God and the rule of law is the
doctrine of man that holds him to be created in God’s image:
And God said, Let us
make man in our image, after our likeness: and let them have dominion over the
fish of the sea, and over the fowl of the air, and over the cattle, and over all
the earth, and over every creeping thing that creepeth upon the earth.
So God created man in his own
image, in the image of God created he him; male and female created he them.[48]
Because man is made in God’s image, he can enjoy a relationship
with God that may encompass covenant, that may entail the human administration
of God’s authority and justice, that may require the exercise of judgment,
applying God’s law, or any law at all for that matter.
Furthermore, as made in God’s image, man may enjoy relationship with
fellow man in enjoying these privileges and exercising these faculties.
The support given the rule of law by the Christian doctrine of God would
be incomplete without the Christian doctrine of man.
But beyond this aspect of man made in God’s
image and so enabled to act for and with God lies the aspect of man made in
God’s image and therefore worthy of the respect due such a creature.
That is, as a subject of the law, man’s bearing God’s image requires
that he be given the benefit of the rule of law.[49]
From the very first Biblical account of
judgment, the rabbis derived the principle of due process, the principle that
men deserve notice of charges of wrongdoing and the opportunity to answer them
before their judge.[50]
Directly after the sin of our first parents, God, who knows all, asks
Adam, “Hast thou eaten of the tree, whereof I commanded thee that thou
shouldest not eat?”[51]
After listening to Adam’s answer, he asks Eve, “What is
this that thou hast done?”[52]
After listening to Eve’s answer, but without speaking to the serpent at
all, He declares His judgment upon all three offenders.
Men, unlike the embodiment of the fallen angel, and although sinners,
receive from God the respect due those made in His image.
God charges, listens, and then judges, according to His previously
declared law. He treats Adam and
Eve much as King John would promise to treat his subjects in Magna Carta.[53]
Human dignity entails being treated according to
law. And as all humans equally bear
the image of God, so all are to enjoy equality before the law:
“Ye shall do no unrighteousness in judgment:
thou shalt not respect the person of the poor, nor honour the person of
the mighty: but in righteousness shalt
thou judge thy neighbour.”[54]
Adherence to this principle is one of the precepts that A.V. Dicey marks
as components of the common law commitment to the rule of law:
We mean in the second place, when we speak of the “rule of
law” as a characteristic of our country, not only that with us no man is above
the law, but (what is a different thing) that here every man, whatever be his
rank or condition, is subject to the ordinary law of the realm and amenable to
the jurisdiction of the ordinary tribunals.
In England the idea of legal equality, or of the universal
subjection of all classes to one law administered by the ordinary Courts, has
been pushed to its utmost limit. With
us every official, from the Prime Minister down to the constable or a collector
of taxes, is under the same responsibility for every act done without legal
justification as any other citizen. The
Reports abound with cases in which officials have been brought before the
Courts, and made, in their personal capacity, liable to punishment, or to the
payment of damages, for acts done in their official character but in excess of
their lawful authority.[55]
Very different from other ancient near eastern legal codes, the
Torah prescribes one law regarding civil matters.[56]
There is no grading of penalties based upon the status of the wrongdoer
or upon the status of the victim. Instead,
there is one law for all. Insofar
as all equally bear God’s image, all are to enjoy equality before the law.[57]
Just as all men are made in the image of God, so
the Christian faith teaches also that all men are sinners, fallen from their
created state. Jesus Christ alone,
the God-Man, is without sin. Consequently,
no ordinary man exercising a ministry from God exercises it exactly and without
fail as God would have him exercise it. Men
do not keep covenant, do not judge according to the law, do not treat other men
as equals before the law. However
divine their calling, or perhaps because their calling is divine, they fall
short.
The common law acknowledges this third doctrine
in many of the principles we have already rehearsed.
For example, recognizing the limits and diversity of human
jurisdictions fits well with recognizing the sinful state of man.
Unlimited authority is not for sinners.
The method of the common law, requiring that judges decide only the cases
before them, and that they give a reasoned opinion in support of that decision,
combines epistemological modesty with the distrust of judgment without
justification. Another principle
directly related to the fall of man is stare
decisis, the rule that courts adhere to rules previously announced in
judicial opinions. Chancellor James
Kent of New York wrote:
A solemn decision upon a point of law, arising in any given
case, becomes an authority in a like case, because it is the highest evidence
which we can have of the law applicable to the subject, and the judges are bound
to follow that decision so long as it stands unreversed, unless it can be shown
that the law was misunderstood or misapplied in that particular case.
If a decision has been made upon solemn argument and mature deliberation,
the presumption is in favor of its correctness; and the community have a right
to regard it as a just declaration or exposition of the law, and to regulate
their actions and contracts by it. It
would therefore be extremely inconvenient to the public, if precedents were not
duly regarded and implicitly followed. It
is by the notoriety and stability of such rules that professional men can give
safe advice to those who consult them; and people in general can venture with
confidence to buy and trust, and to deal with each other.
If judicial decisions were to be lightly disregarded, we should disturb
and unsettle the great landmarks of property.
When a rule has been once deliberately adopted and declared, it ought not
to be disturbed, unless by a court of appeal or review, and never by the same
court, except for very cogent reasons, and upon a clear manifestation of error,
and if the practice were otherwise, it would be leaving us in a state of
perplexing uncertainty as to the law.
The
English courts seem now to consider it to be their duty to adhere to the
authority of adjudged cases, when they have been so clearly, and so often, or so
long established, as to create a practical rule of property, notwithstanding
they may feel the hardship, or not perceive the reasonableness of the rule.
There is great weight in the maxim of Lord Bacon, that “optima
est lex, quae minimum relinquit arbitrio judicis; optimus judex, qui minimum
sibi.”[58]
Judges, as they discerned the customs and rules that composed the
common law, had no discretion to alter the law, or even to depart from
precedents unless clearly erroneous. This
principle not only stabilized law, as Kent remarks, but also checked whatever
impulse a judge might have indulged to pursue passion rather than law, as
Aristotle might say. Dean Roscoe
Pound attacked as a Puritan impediment to “collectivist principles” such
constraints on the judicial will:
It is
hardly too much to say that the ideal judge is conceived of as a pure machine.
Being a human machine and in consequence tainted with original sin, he
must be allowed no scope for free action. Hard
and fast rules of evidence and strict review of every detail of practice by a
series of reviewing tribunals are necessary to keep him in check.
In many states he may not charge the jury in any effective manner; he
must rule upon and submit or reject written requests for academically stated
propositions of abstract law; he must not commit any error which might possibly
prejudice a party–whether in fact there is prejudice or not.
Dunning has pointed out that the Puritan in America was able to carry
into effect what in England could only be speculative opinions.
Hence in America, in addition to the ritual of justice, belonging to a
past age of formalism that put gold lace and red coats on the skirmish line, we
have a machinery of justice devised to keep down the judicial personality which
has made legal procedure in some sort an end in itself.[59]
Though not explicitly attacking
normal”>stare decisis, Pound exposes the connection between a common law
principle that holds judges to decisions previously announced and the Christian
teaching that all men sin, fall short of their calling.
Sin finds its remedy under the fourth
fundamental Christian doctrine, the atonement worked by Jesus Christ.
The orthodox understanding of the atonement sees Christ’s death as
satisfying the just wrath of God the Father.
Desiring to save mankind from the full consequences of their sin, but
unwilling to alter or to violate the law that condemned mankind to those
consequences, God, uniting man to Himself in Christ, suffered those consequences
in union with man, and so satisfied justice while working mercy.[60]
God Himself adhered to the law. He
did not alter it, or find some pragmatic remedy apart from it.
To the contrary, God the Son lived as man a perfect life under the law as
part of His work of atonement. God
Himself died, the Trinity Itself split, in order to fulfill the law while
providing forgiveness to us. The
doctrine that God Himself keeps the law–His own law–even at so a great a cost
to Himself demonstrates the most profound commitment to the rule of law.
Neither the magnitude of authority, nor the magnitude of the
end, nor the magnitude of the cost, justified the departure from the law.
How much less, then, should His fallen creatures bearing His image depart
from the law?[61]
Henry Bracton, thirteenth century father of the common law,[62] explained:
The king
must not be under man but under God and under the law, because law makes the
king, Let him therefore bestow upon the law what the law bestows upon him,
namely, rule and power. [F]or there
is no rex where will rules rather than
lex.
Since he is the vicar of God, And that he ought to be under the law
appears clearly in the analogy of Jesus Christ, whose vicegerent on earth he is,
for though many ways were open to Him for his ineffable redemption of the human
race, the true mercy of God chose this most powerful way to destroy the
devil’s work, he would use not the power of force but the reason of justice.
Thus he willed himself to be under the law that he might redeem those who
live under it. For He did not wish
to use force but judgment.[63]
The rule of law can receive no higher endorsement, in fact no
greater sanctity, then it does from this distinctive doctrine of the Christian
faith. Whatever diverse sources
give rise to the rule of law, whatever prudence and welfare enhancements support
it, the rule of law could hardly find more committed supporters than those who,
like Bracton, view human government and law from a thoroughgoing and orthodox
Christian worldview.
Here should be noted a corollary that ought to
accompany such a profound commitment to the rule of law.
If God Himself adheres to the rule of law, so should civil government.
This should be true, even to the extent that this adherence puts some
matters beyond the authority of civil government.
If parenting, or cultivation of the arts, or the provision of medical
care, cannot be done properly within the rule of law, they ought not to be done
by civil government, at least if its commission is to execute justice.
The rule of law, then, is not only a precept for means, but
also a precept for ends.
The rule of law flourished in the common law
under the influence of the Christian faith of those who developed it.
Beyond the four fundamental doctrines of the faith discussed here, many
Christian principles support the rule of law.[64]
One might well wonder, then, how abandoning the Christian faith might
affect the rule of law today.[65]
With the Christian God thought to be gone, what principled limits exist
to civil authority; what pre-existent, known precepts supply rules for new
cases; what gives rise to the equality of all before the law; what warns men
from pretending to the prerogatives of the perfect?
What indeed replaces the atonement as the profound sign and call to the
rule of law?
In fact, recent jurisprudence has followed the
trajectory one would expect from a departure from the Christian worldview.
To pick just one example, in summarizing its reasons for reaffirming Roe
v. Wade under a newly announced doctrine of stare
decisis, the United States Supreme Court wrote:
The Court’s duty in the present cases is clear.
In 1973, it confronted the already-divisive issue of governmental power
to limit personal choice to undergo abortion, for which it provided a new
resolution based on the due process guaranteed by the Fourteenth Amendment.
Whether or not a new social consensus is developing on that issue, its
divisiveness is no less today than in 1973, and pressure to overrule the
decision, like pressure to retain it, has grown only more intense.
A decision to overrule Roe‘s
essential holding under the existing circumstances would address error, if error
there was, at the cost of both profound and unnecessary damage to the Court’s
legitimacy, and to the Nation’s commitment to the rule of law.
It is therefore imperative to adhere to the essence of Roe’s
original decision, and we do so today.[66]
Stare decisis in Casey
is not a method for seeking truth with humility, sensitive to the reliance
placed by others on earlier judicial decisions.
It is instead, a tool to preserve the power of the court.
The rule of law becomes the rule of the court, for there is no true law
apart from the court:
Like the
character of an individual, the legitimacy of the Court must be earned over
time. So, indeed, must be the
character of a Nation of people who aspire to live according to the rule of law.
Their belief in themselves as such a people is not readily separable from
their understanding of the Court invested with the authority to decide their
constitutional cases and speak before all others for their constitutional
ideals. If the Court’s
legitimacy should be undermined, then, so would the country be in its
very ability to see itself through its constitutional ideals.
The Court’s concern with legitimacy is not for the sake of the Court,
but for the sake of the Nation to which it is responsible.[67]
The
court is the organ of the rule of law. Without
a powerful court, there is no real law. How
could it be otherwise when “[a]t the heart of liberty is the right to define
one’s own concept of existence, of meaning, of the universe, and of the
mystery of human life. Beliefs
about these matters could not define the attributes of personhood were they
formed under compulsion of the State.”[68]
Attributes of personhood–the status that merits for humans their legal
protection–derive from one’s own religious beliefs, not from some
transcendent order, some ultimate truth. It
is the autonomous definition by each of reality that gives humans dignity.
But for our polity, it takes a court to bring law to such beings, a role
Justice Scalia calls the product of a “Nietzschean vision of
. .
. unelected, life-tenured
judges–leading a Volk who will be ‘tested by following,’ and whose very
‘belief in themselves’ is mystically bound up in their ‘understanding’
of a Court that ‘speak[s] before all others for
their constitutional ideals.'”[69]
One of the most chilling passages in the Bible–at least to a law
professor–is a judgment pronounced by the prophet Habakkuk on the violation of
the rule of law:
The
burden which Habakkuk the prophet did see.
O LORD, how long shall I cry, and thou wilt not hear! even
cry out unto thee of violence, and
thou wilt not save! Why dost thou
shew me iniquity, and cause me to
behold grievance? for spoiling and violence are
before me: and there are that raise up
strife and contention. Therefore
the law is slacked, and judgment doth never go forth: for the wicked doth
compass about the righteous; therefore wrong judgment proceedeth.
Behold
ye among the heathen, and regard, and wonder marvelously: for I
will work a work in your days which ye
will not believe, though it be told you.
For, lo, I raise up the Chaldeans,
normal”>that bitter and hasty nation, which shall march through the breadth
of the land, to possess the dwelling places that
are not theirs. They are
terrible and dreadful: their judgment and their dignity shall proceed of
themselves.[70]
A polity that despises the rule of law is condemning itself to
the rule of the lawless, those whose “judgment and
. .
. dignity
. .
.
proceed of themselves.”
For the rule of law is not only a principle built on religious
foundations. It is also a
touchstone of a people’s commitment to those foundations themselves.
And woe to that people who serve as gods those who are not gods.
1
Copyright © 2003 by Craig A. Stern.
[1] Professor, Regent
University School of Law. B.A.,
Yale University; J.D., University of Virginia.
The author thanks William F. Campbell for the invitation to present a
summary of this paper at the April 2003 National Meeting of The Philadelphia
Society. The author also thanks
Jeff Brauch, Mary Bunch, Joe Kickasola, Holly Miller, Susan Stewart, Alvin
Warren, Eric Welsh, and Regent University, for their generous assistance.
[2] 2 Bracton,
On the Laws and Customs of England 33 (photo. reprint 1997) (Samuel
E. Thorne trans., 1968) (footnote omitted).
normal”>”Ipse autem rex non debet esse sub homine sed sub deo et sub lege,
quia lex facit regem.” 2 id.
at 33 (George E. Woodbine ed., 1942) (footnote omitted).
[3] See
Judith N. Shklar, Political Theory and
the Rule of Law, in The
Rule of Law: Ideal or Ideology
1 (Allan C. Hutchinson & Patrick Monahan eds., 1987) (arguing that
“[i]t would not be very difficult to show that the phrase ‘the Rule of
Law’ has become meaningless thanks to ideological abuse and general
over-use. .
. .
The upshot is that the Rule of Law is now situated,
intellectually, in a political vacuum,” id.
at 1).
[4] Brian Z. Tamanaha, The
Rule of Law for Everyone? available at http://papers.ssrn.com/sol3/delivery.cfm/SSRN
ID312622 code020517140.pdf?abstractid=312622.
Even Marxist rulers, if not Marxist academics, have endorsed the rule
of law.
normal”>Id. at 4. See
also John N. Paden, The World
Trade Organization and the Rule of Law in China:
A First-year Assessment, Va.
Law., Apr. 2003, at 20, 21.
[5] John
Bartlett, Familiar Quotations 293 (Emily Morison Beck et al. eds., 15th
ed. 1980) (quoting FranÁois, Duc
de La Rochefoucauld).
[6] Black’s
Law Dictionary 1332 (7th ed. 1999).
[7] See
Antonin Scalia,
normal”>The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev.
1175 (1989).
[8] See
David Novak,
normal”>Law: Religious or Secular?,
86 Va. L. Rev. 569 (2000)
(arguing that law is rooted in religion).
10
[R]eligion has inserted itself as an influential force in the
determination of the legal order. In
the Anglo-American world religion has functioned as one of the most concrete
and specific sources of the moral Weltanschauung.
As the moral ethos has served as the substratum for the legal order,
religion has been one of the main foundations for both the belief and
normative systems of the past.
Raymond G. Decker, Religion
and Law in the United States: A
Prognosis, 8 Cap. U. L. Rev.
357, 360 (1979).
[10] The
Politics of Aristotle 127 (Ernest Barker trans., 1971-2) (III, xi, ß
19; 1282b) (footnote omitted).
[11] Id.
at 175 (IV, viii, ß 5; 1294a).
[12] Id.
at 146 (III, xvi, ß 5; 1287a) (footnotes omitted, bracketed words supplied
by translator).
[13] These principles also
find expression in the Nicomachean
Ethics. Equity is needed to
supply gaps found in law by virtue of its generality.
Aristotle, Ethica Nicomachea
(W.D. Ross trans.) in The
Basic Works Of Aristotle 1019-20 (Richard McKeon ed., 1941) (V, 10;
1137a-1138a).
And yet, “we do not allow a man
to rule, but rational principle, because
a man behaves thus in his own interest and becomes a tyrant.
The magistrate on the other hand is the guardian of justice, and, if
of justice, then of equality also.” Id.
at 1013 (V, 6; 1134a-b).
[14] David
Ross, Aristotle 185 (1964).
[15] Id.
at 181, 185.
[16] Deuteronomy
1:16-17.
[17] See,
e.g.
normal”>Psalm 105:8 (“He hath remembered his covenant for ever, the word which
he commanded to a thousand generations.”).
[18]
Menachem Elon, Bernard Auerbach, Daniel D. Chazin & Melvin J. Sykes,
Jewish Law (Mishpat Ivri): Cases and Materials 18 (1999) (quoting
from Bava Mezi’a 59b of the Babylonian Talmud (bracketed material in
source)). See
also Elliot Dorff, Judaism as a
Religious Legal System, 29 Hastings
L.J. 1331, 1338 (1978) (noting that “[t]he Rabbis explicitly
claimed that human judges in each generation have the authority to make
decisions in Jewish law and that God no longer has the right or authority to
do so”).
[19] Roger Scruton, The
Political Problem of Islam, Intercollegiate
Rev
normal”>., Fall 2002, at 3, 8.
[20] Id.
at 10.
[21] Joseph N. Kickasola,
Islam and “The Rule of Law” (Mar. 2003) (unpublished manuscript, on file
with the author).
[22] See
Malise Ruthven, Islam in the World
149-50 (2d ed. 2000).
[23] See
Richard O’Sullivan, Christian
Philosophy in the Common Law 10-12 (n.d.).
[24] Cf.
Jeffrey Brauch & Robert Woods, Faith,
Learning and Justice in Alan Dershowitz’s The Genesis of Justice:
Towards a Proper Understanding
of the Relationship Between the Bible and Modern Justice, 36 Val.
U. L. Rev. 1, 50-60 (2001) (demonstrating “that the common law
developed a deep commitment to the rule of law” “within [the]
framework” of biblically based higher law, id.
at 50).
[25] 1 Richard
Hooker, Of The Laws Of Ecclesiastical Polity 150 (London, J.M. Dent
& Sons 1925) (1594).
[26] 1 William
Blackstone, Commentaries *40.
[27] Psalm
138:2.
[28] Matthew
28:18.
[29] “Render to Caesar the
things that are Caesar’s, and to God the things that are God’s.”
normal”>Mark 12:17b.
[30]
Let every soul be subject unto the
higher powers. For there is no power but of God: the powers that be are
ordained of God. Whosoever
therefore resisteth the power, resisteth the ordinance of God: and they that
resist shall receive to themselves damnation.
For rulers are not a terror to good works, but to the evil. Wilt thou
then not be afraid of the power? do that which is good, and thou shalt have
praise of the same: For he is the minister of God to thee for good. But if
thou do that which is evil, be afraid; for he beareth not the sword in vain:
for he is the minister of God, a revenger to execute
wrath upon him that doeth evil. Wherefore
normal”>ye must needs be subject, not only for wrath, but also for
conscience sake. For for this
cause pay ye tribute also: for they are God’s ministers, attending
continually upon this very thing.
Romans
13:1-6.
[31] “The scriptures clearly
teach the subordination of the state to law.
The state is created
normal”>for the benefit of law. .
.
.[l]aw gives a reason for being and a purpose to the state.
The latter is the servant, not the master, of law.”
Jacques Ellul, The
Theological Foundation of Law 123-24 (Marguerite Wieser trans.,
1969).
[32] Harold
J. Berman, Law and Revolution 458 (1983).
[33] See
Theodore F.T. Plucknett, A Concise
History of the Common Law 83-214, 484-85, 627, 630-31, 740-41 (5th
ed. 1956). See
also Berman,
normal”>supra note 33, at 39 (stating that “Blackstone’s concept of two
centuries ago that we live under a considerable number of different legal
systems has hardly any counterpart in contemporary legal thought.”).
[34] See
Berman, supra
note 33, at 10, 215, 292, 294, 536-37.
[35] Magna
Carta, ch. 1,
normal”>reprinted in Sources of Our
Liberties 11 (Richard L. Perry & John C. Cooper eds., 1978).
[36] That Pope Innocent III
declared the first Magna Carta of 1215 void for having been exacted without
his consent only emphasizes that such a pledge, properly executed, was
binding and not just a concession to superior power.
The charter enjoyed repeated reissues later that did validly
bind sovereigns.
normal”>See id. at 4. “[E]ventually
it was confirmed at least thirty times before the close of the Middle
Ages.” Arthur
R. Hogue, Origins of the Common Law 54 (Liberty Press 1985) (1966).
[37] Magna
Carta, ch. 39, reprinted in Sources, supra note
36, at 17 (footnote omitted).
The great importance of Magna Carta was that it introduced a
. .
. theory of law, under
which the king could be legally bound.
It is most unlikely that any of those who attached their seals to the
Great Charter realized this, but it is implicit in chapter 39.
They did not, of course, reject the idea that the king was bound by
divine law and by the law of nature, but to this they added the third
concept, “the law of the land.” This
is not law which anyone has commanded.
It consists of those rules which are recognized as being obligatory
because they have been developed through the common custom of the realm.
This law of the land is binding on the king as well as on his
subjects.
Arthur L.
Goodhart, “Law of the Land” 27 (1966).
[39] See
The Federalist No. 78, at 402
(Alexander Hamilton) (George W. Carey & James McClellan eds., 2001)
(stating that the judiciary “may truly be said to have neither Force
nor Will, but merely
judgment”); see also id.
No. 47, at 249 (stating that “[t]he accumulation of all powers,
legislative, executive, and judiciary, in the same hands
.
. .
may justly be pronounced the very definition of tyranny”).
[40] 1 Blackstone,
normal”>supra note 27, at
*69.
[41] Cf.
James R. Stoner, Jr., Common Law and
Liberal Theory 19 (1992) (stating that common law authority Sir
Edward Coke “apparently takes it for granted that divine authority lies
behind the law.”).
[42] 1 Blackstone,
normal”>supra note 27, at *41.
[43] 1 id.
at *42.
[44] 1 id.
at *44.
[45] 1 id.
at *69-70 (footnote omitted).
[46] See
Rogers v. Tennessee, 532 U.S. 451, 472-79 (2001) (Scalia, J., dissenting)
(explaining the common law doctrine that judges discover, not make, law).
See also Bruno
Leoni, Freedom and the Law 85-86 (3d ed. 1991) (“According to the
English principle of the rule of law, which is closely connected with the
whole history of the common law, rules were not properly the result of the
exercise of the arbitrary will of particular man.
They are the object of a dispassionate investigation on the part of
courts of judicature .
. .
.
[t]he attitude of common-law judges towards the rationes
decidendi of their cases .
. .
has always been much less that of a legislator than that of a
scholar trying to ascertain things rather than to change them.”).
[47] See
Arthur E. Sutherland, The Church Shall Be Free 5-7 (1965) (describing
the fear of God and the piety of such monarchs as John, William the
Conqueror, and Henry II).
normal”>See also Berman,
supra note 33, at 479 (arguing that royal justice was more objective
than that available elsewhere, in part because royal judges “owed an
allegiance to the law, and to God, which was considered to be even higher
than their allegiance to the king,” the former allegiance to be honored at
the peril of their souls).
[48] Genesis
1: 26-27 (authorized King James version, in which italics signify words
with no verbal equivalent in the original text).
normal”>
Reflection on the relationship of human reason and freedom–and
the theological significance of this relationship in a tradition crucially
shaped by the biblical account of man as a possessor of spiritual powers
and, indeed, as an imago dei–helps, I believe, to make sense of the
centrality of law, and the rule of law, in Western thought about political
morality. In particular, it
helps to explain the stress laid upon the ideal of the rule of law as a
fundamental principle of political justice in the strand of the tradition
stretching from early and medieval Christian thinkers to John Paul II.
Robert P. George, Reason,
Freedom, and the Rule of Law: Their
Significance in the Natural Law Tradition, 46 Am. J. Juris. 249, 256 (2001).
[50] See
Elon, Auerbach, Chazin & Sykes,
supra note 19, at 587.
normal”>See also R.H. Helmholz, The
Development of Law in Classical and Early Medieval Europe:
The Bible in the Service of the Canon Law, 70 Chi.-Kent
L. Rev. 1557, 1573-77 (1995) (explaining that canon law found
fundamental procedural principles in Genesis
3).
[51] Genesis
3:11
[52] Id.
3:13.
[53] See supra text
accompanying note 38.
[54] Leviticus
19:15
normal”>.
[55] A.V.
Dicey, Introduction to the Study of the Law of the Constitution 114
(Liberty Classics 1982) (1885) (footnote omitted).
normal”>Magna Carta had provided for an equality of penal fines irrespective
of whether the one being fined was a “free man,” a “merchant,” or a
“villain.”
normal”>Magna Carta, ch. 20, reprinted
in Sources, supra
note
normal”> 36, at 15.
[56] Compare
Hammurabi’s Laws 105-07 (M.E.J.
Richardson trans., 2000) (prescribing compensation and fees for injury and
assault, varying with the status of the victim) with
Exodus 21 (prescribing
compensation for injury, fundamentally neutral with respect to the status of
the victim).
[57] See
O’Sullivan, supra
note 24, at 31-35.
[58] 1
James Kent, Commentaries on American Law *475-78 (O.W. Holmes, Jr.,
ed., 12th ed., Boston, Little, Brown 1873) (footnote omitted).
[59] Roscoe Pound, Puritanism
and the Common Law, 45 Am. L. Rev.
811, 827 (1911).
[60]
“For therein is the righteousness of God
revealed from faith to faith: as it is written, The just shall live by
faith.” (Romans 1:17); “To
declare, I say, at this time his
righteousness: that he might be just, and
the justifier of him which believeth in
Jesus.” (Romans 3:26).
Law had been conceived or existing independently of the will of any
ruler, independently even of the will of God; God himself was obedient to
law; the most glorious feat of his Omnipotence was to obey law:–so the
king, he is below the law, though he is below no man; no man can punish him
if he breaks the law, but he must expect God’s vengeance.
[62] See
John C.H. Wu, Fountain of Justice
71-77 (1955) (describing the importance of Bracton, and his title to being
acclaimed father of the common law).
[63] 2 Bracton,
normal”>supra note 3, at 33 (footnotes and original brackets omitted).
“Bracton’s book is the crown and flower of English medieval
jurisprudence.” 1 Frederick
Pollock & Frederic William Maitland, The History of English Law
206 (photo. reprint 1982) (Cambridge, Cambridge University 1899).
The beginning of this passage is famous also for being the words
Chief Justice Edward Coke quoted to James I during their argument on Sunday,
November 13, 1608. The king
became enraged, and nearly struck Coke with his fist.
See Catherine
Drinker Bowen, The Lion and the Throne 303-06 (1957).
[64] See,
e.g., Genesis 1:28 (recording that man is to exercise dominion over the
earth);
normal”>Matthew 5:17-18 (“Think not that I am come to destroy the law, or
the prophets: I am not come to
destroy, but to fulfil. For
verily I say unto you, Till heaven and earth pass, one jot or one tittle
shall in no wise pass from the law, till all be fulfilled.”); 1 Timothy
2:2 (exhorting prayer for kings “that we may lead a quiet and peaceable
life in all godliness and honesty”).
Harold J. Berman, The
Interaction of Law and Religion, 8 Cap.
U. L. Rev. 345, 351 (1979).
[66] Planned Parenthood v.
Casey, 505 U.S. 833, 868-69 (1992)
[67] Id.
at 868.
[68] Id.
at 851.
[69] Id.
at 996 (Scalia, J., concurring in the judgment in part and dissenting in
part). See
also Emery G. Lee III, Overruling
Rhetoric: The Court’s New
Approach to Stare Decisis in Constitutional Cases, 33 U.
Tol. L. Rev. 581 (2002). (“The
Court’s new overruling rhetoric appears to conceptualize the Justices’
role in a new way. Instead of
merely owing a duty to adhere to the Constitution’s meaning, as they best
understand it–however that meaning may be arrived at–under this new
approach, Justices have to take the expectations of the American people and
the Court’s own legitimacy into account.
These expectations go beyond the belief in the rule of law and the
subsequent need for continuity and stability on the law, although these are
important considerations.” Id.
at 617.).
[70] Habakkuk
1:1-7.