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The Rule of Law and the Rule of Men: History, Legacy, Obscurity. The distinction between “the rule of law” and “the rule of men” is still in use, after more than two and a half thousand years. It is well known that Aristotle’s aphorism extols government according to institutionalized impersonal rules and condemns government by personal fiat.
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However, the formulation has another dimension that, during the course of the modern era, has gradually been obscured: Aristotle, following Plato, is making a set of philosophical points about the relations between human nature, the wider natural order, and positive law. The first part of this article offers an account of this neglected dimension of the ancient contrast between “the rule of law” and “the rule of men”. The second part of the article considers the reception of the contrast in the early modern age, focussing on the limited government tradition which emerged in the seventeenth and eighteenth centuries. The article concludes by considering how the rise of so-called “formal” accounts of the rule of law tend not merely to deny the validity of the Classical approach, but to render it increasingly obscure. This is a preview of subscription content, log in via an institution to check access. Access this article. Subscribe and save. from €37.37 /Month. Starting from 10 chapters or articles per month Access and download chapters and articles from more than 300k books and 2,500 journals Cancel anytime. Buy Now. Price includes VAT (Ukraine) Instant access to the full article PDF. Similar content being viewed by others. A General Perspective on the Historical Development of International Law. Chapter © 2022. The Rule of Law as the Measure of Political Legitimacy in the Greek City States. Article Open access 11 May 2017. Status of Law. Chapter © 2017. Explore related subjects. Fundamentals of Law Legal History Law and Religion Philosophy of Law Philosophy of the 18th century Theories of Law, Philosophy of Law, Legal History. Notes. Aristotle (2000) III.16.1287a. Krygier (1991), Krygier (2016), pp. 205–208, Krygier (2019a, b), Sadurski (2019), Sempill (2016), section VI. See the helpful analysis of this aspect of the Republic in Lewis (2009a), section I. Krygier (2016), pp. 205–208. Endicott (2003), p. 86, see also Endicott (1999), pp. 2–3. Endicott (2003), p. 86. Raz (1979), p. 212. Waldron (2002), p. 141. Waldron (2011), p. 11. Finnis (2011), p. 267. Sadurski (2019), p. 378. I have relied heavily on the following accounts of the relevant intellectual climate: Canevaro (2017), Guthrie (1971), Guthrie (1986), Jaeger (1945), Jaeger (1947), Lewis (2009a, b), MacIntyre (1981), MacIntyre (1998), MacIntyre (2001), Ostwald (1969, 1989), Sandel (2014). Krygier refers to Aristotle (2000) at 1287a. Krygier (2016), p. 206. Citations omitted. Canevaro (2017), p. 224. Canevaro (2017), p. 231. The leading proponents of the classical approach to law are Plato, Aristotle and Aquinas, and this tradition has been continued by an array of modern disciples, including, most prominently today, John Finnis. See Finnis (2014), Finnis (2011) and Finnis (2003). For a relevant and very helpful interpretation, see Lewis (2009b), section I. Plato, Republic 331b–d. Plato (1926) 875c–d. Endicott (2010),, Simmonds (2007) and Simmonds (2010). See generally Ostwald (1989), ch 1. Jaeger (1947). On Plato, see Stalley (2015), p. 66. Plato (1926) 875c–d. Whether to characterise law and the rule of law as an “ideal” is a subject of contemporary discussion: e.g., according to Finnis, ‘moral ideal is not a good name for the moral requirement that such an order of rules be desired, sought, introduced, accepted, refined and adjudicatively and forcefully applied—all for the sake of justice, responsible government and the pursuit of the common good…’: Finnis (2010), p. 250. See also the contributions of Nigel Simmonds (2010) and Timothy Endicott (2010) in the same volume of Jurisprudence. See also Finnis (2003), p. 112. Plato (1921) 151e. Plato (1921) 167c. Plato (1921) 168b–c. Plato (1921) 169d. Plato (1921) 179b. Plato (1921) 172b. Plato (1955) 313b. Plato (1955) 314c. Plato (1955) 317d, 315a. Plato (1955) 316c. Lewis (2009b), p. 638. Jaeger (1947), p. 368. Jaeger (1947), p. 371. Jaeger (1947), p. 369. MacIntyre (2001), p. 88. Plato (1926) 713d–714a. Compare Stalley (2015), p. 72. Finnis gives an account of the notion of the “central case” method, which bases on the Aristotelian notion of “focal meaning”, Finnis (2011), p. 10 and ch. I.3 ( passim ). In Plato’s Laws , it is envisaged that “officials must be subject to law in everything that they do. This is ensured by complex constitutional arrangements”: Stalley (2015) p. 70. In the Laws , “it is clear that there are objective standards of right and wrong that can be known by reason and embodied in law”: Stalley (2015), p. 71. Stalley (2015), p. 75. Plato (1926) 715d. Waldron (2002), p. 141. “It is Plato’s project which Aristotle vindicates and … completes”, but he is also involved “in a partial rejection, or at least correction, of Plato”: MacIntyre (2001), pp. 89–90 and generally “Aristotle as Plato’s Heir”, ch VI, see also the discussion in Miller (2015), p. 97. Guthrie (1975), pp. 477–478. Jaeger (1947), pp. 358–359. Jaeger (1947), p. 369. “That justice which manifests itself in the life of the state is according to Plato only a secondary form of this quality in the individual. It is derived from what he calls justice in the primary sense, which is the normal condition of the human soul. In strict analogy to it, social justice is to Plato the perfect harmony of the various constitutive elements of the social organism which we call the state.”: Jaeger (1947), p. 366. Though the latter once established also promotes the former such that the two elements are mutually supporting. In Plato’s Laws the Athenian argues that “It is certainly not necessary that all citizens be virtuous (the Athenian admits that they will not be), but it is necessary that in the city as a whole a modicum of virtue prevail and that the city’s order be determined by the priority of the goods of the soul”: Lewis (2009a), pp. 67, 78.
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