SCOTUSblog » Academic Round-up

Wednesday, July 11, 2012

"Rule of Law" v. "Rule of the Powerful"

Aristotle wrote that "it is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws." Hence the phrase "rule of law."


The problem arises when we seek to define the law. Dictators will use the phrase to claim legitimacy. They say "I make the laws, and therefore to abide by the rule of law everyone must do as I say." But such a claim undermines the very purpose of the concept. Aristotle's point -- reiterated and explained by John Locke and Jean Jacques Rousseau among myriad others -- is that LAW exists above and beyond any particular legislators. Majority rule may or may not automatically establish legitimacy, but Congress could no more claim to be the be-all of the LAW than the president could. Generally, the LAW limits power because it requires adherence to a set of principles that dictates what laws are legitimate.


In Egypt these days we have a dispute over this idea. The military junta currently in control complains that newly-elected President Mohamed Morsi has defied the rule of law by calling for the restoration of Parliament. The junta says that they dissolved the Parliament, and they are the law and therefore they rule. The Supreme Constitutional Court agrees with the junta.


Morsi, though he now says he will abide by the ruling of the Court, is correct and the Court and the junta are wrong. In fact, Morsi's actions today only reinforce the idea that he grasps the concept better than the military because he is accepting limits to his own power when he might have recourse to do otherwise.


On this will hinge the future of a democratic Middle East.

No comments: