For over a year, the Dissident's Guide to the Constitution podcast series has been on pause, partly because the planned theme of the next episode after democracy was the rule of law and we were at a loss to know how best to cut through the vari…
For over a year, the Dissident's Guide to the Constitution podcast series has been on pause, partly because the planned theme of the next episode after democracy was the rule of law and we were at a loss to know how best to cut through the various claims and counter-claims as to what the phrase means.
Some of these claims have much rhetorical and philosophical merit—such as Giorgio Agamben's and John Waters' writing on the replacement of lawful government by a permanent "state of emergency", Lord Bingham's historical scheme of the development of the concept, and Peter Hitchens' quiet insistence that the rule of law is a voluntary submission or a consent of the governed—but there are also many judicial and political figures active in this era who make strident assertions as to what the phrase "the rule of law" means.
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Is "the rule of law" a counterbalance to democracy or the means by which democracy triumphs? Is it still supposed to be the same concept at home as abroad? Is it the same thing as the Western deep state's recent pet term, "the rules-based international order", or something else entirely? Does this ruling "law" have to do with the authority of institutions or with legitimacy? Does the concept bind the government or the governed? Does the rule of law give us any rights, or do rights give us the rule of law?
Because there is no prevailing agreement on the answers to these questions, we decided to take a first-principles look at the concept of the rule of law, availing ourselves of two of the most honest definitions of the phrase proffered by legal scholars: Albert Venn Dicey and Lord Jonathan Sumption.
We conclude that the rule of law is a captured concept and that its definition—or its undoing—is the matter of who writes the law that is said to rule, and where that law is derived from. If we do not understand this, David Scott argues on the basis of his encounter with a stormtrooper, the phrase degenerates into meaning "The experts' discretion defines your freedom"; a coercion by power rather than a limitation on power. If the law has lost its majesty—if there is no longer any law that is understood to be "anterior, antecedent, inalienable, imprescriptible, indefeasible and superior to all positive law"—then the phrase "the rule of law" is surely no consolation but a tyrant's charter to be fled from.
The recording of Frédéric Bastiat’s The Law recommended by David Scott at the end of the episode is here.
The next episode, covering the nation state and the Crown, will be the last in the first section of this series, before we move to a second section that overviews English, Scottish and then British constitutional history.
