In a recent article, I drew attention to the way that contemporary figures often falsely claim that the rule of law is a fundamentally liberal political principle that developed in modernity with little ancient or medieval precedent. I further argued that modern liberal political philosophy ultimately corrupts the idea of a law-governed state. Modern liberal political philosophers, from John Stuart Mill to Friedrich Hayek, have held that the only way to keep the rule of law sacrosanct, to protect it from vested interests or the abuse of tyrants, is to eliminate all moral judgement from the art of law-making. This leaves us with a supposedly ‘neutral’ state—if such a state, governed by human beings as all states are, can be believed to exist—concerned only with preventing harm to citizens. In practice, I argued, this idea of a neutral state serves to harm the lives of those it seeks to protect. Today, I will build on this initial argument by examining the ancient and medieval roots of the rule of law and indicate how these roots provide a firmer foundation for a healthy society.
The idea that the law should rule before any one of the citizens is of ancient pedigree, being tracible at least to the 4th century BC in Aristotle’s Politics. However, the claim that the rule of law necessitates perfect indifference to all moral issues (except when harm is suffered without consent) is a distinctly modern innovation. In stark contrast to this modern idea, thinkers of classical antiquity and medieval Christendom recognized that a legal order that reduces human relations to a pure calculus of consent, harm, and maximal autonomy would soon find itself presiding over a mass of deracinated citizens lost in an ocean of relativistic chaos. Our post-Christian societies are already husks of their more ethically rich former selves, due to a gradual breakdown of confidence in our right or even ability to judge between good and evil.
But for ancients like Plato and Aristotle, politics was morality writ large and the law, while independent of power, was its main instrument. This same idea was later inherited by St. Thomas Aquinas who, being a Christian, further believed that the shared understanding of ethical life at which politics properly aims could be supported by Divine revelation. Again, none of this served to make Aristotle or Aquinas at all hostile to the rule of law.
If anything, the reverse is true—certainly with respect to Aristotle, who pithily stated the principle, and Aquinas, who then adopted it. In Summa Theologiae, Aquinas even devotes a whole section to ‘the power of human law’ in which the following two-pronged question is posed: whether it is the place of secular law “to repress all vices” and “to direct all acts of virtue”? Aquinas answers first that it is not the role of law to crack down on all human wrongdoing, for “laws imposed on men should be in keeping with their condition” which is “not perfect in virtue.” He realized that a rigidly moralistic dystopia run by Bishops was inconsistent with the reality of human sin, the punishment of which cannot be perfectly executed by man and in many cases must be left to “Divine providence.”
However, Aquinas did not therefore believe that the legal order should remain silent on questions of virtue. Laws are just, he says, when they prescribe acts of virtue that are “ordainable to the common good.” But a law can also only be just, he then adds, if it is harmonious with the ideal of ranking law above power: “when the law that is made,” as Aquinas puts it, “does not exceed the power of the lawgiver.” The liberal assumes that this second statement in defence of the rule of law necessarily conflicts with Aquinas’s first statement in defence of legally prescribed duties directed towards enhancing “the common good.”
Again, this false dichotomy only applies if the rule of law is redefined as complete moral neutrality in every situation that does not involve direct, physical harm to non-consenting individuals. But Aquinas demonstrates that it is not only possible to reconcile a culturally dominant set of norms with the rule of law, but necessary for laws to enshrine and draw inspiration from whatever virtues the community regards as preconditions for human flourishing. Checks should exist to ensure that this undertaking does not transform legal authority into the plaything of tyrants, but the insistence that it necessarily does so is an unhelpful liberal fiction.
Aquinas was a deeply tolerant political thinker. He understood that it was not within man’s power to stamp out every behaviour that falls short of Christian duty, but “only the more grievous vices, from which it is possible for the majority to abstain.” Opinions will always differ on what best approximates the common good and on the utility of law as an agent of virtue in any particular case. But to imitate the liberal silence on such crucial questions is to invite radical neo-Marxists to answer them for us. Worse still, if granted a blank cheque to build their very own gerechte Staat, there can be no doubt that these secular wokesters, as fanatical believers in human perfectibility, will be far less forgiving than Aquinas was of whatever vices, real or imaginary, they come to resent for standing in their way.
Once lauded by our ancient and medieval forebears as the link between ethical and political life, law in the modern West is moral chaos writ large. To the liberal observer, this is its crowning virtue: better that the autonomous, self-actualizing individual should live how he wants than be oppressed by an unchosen, coercive, and reactionary set of legal and social duties. Of course, it is not feasible to run society like an ascetic convent or a medieval monastery. But nor is it feasible to embrace the liberal commitment to a fictitious moral neutrality. When the law ceases to be a shepherd of virtue, it does not become a neutral, tranquilising force in human affairs. Despite liberal pretensions, as moral creatures we are utterly incapable of being neutral in anything, from law to what we eat for breakfast. In the absence of shared values to hold up and reaffirm, law will only go one of two ways. It will either reflect that moral relativism back into the world or else be manipulated by some demagogue eager to exploit the chaos for his own ends.
The liberal severing of law from morality will not save the rule of law from the clutches of despotism. As Aristotle and Aquinas knew, the rule of law is not only sacrosanct, but for its coherence depends on some substantive vision of the common good—exactly the kind of language, like gerechte Staat or Volksgemeinschaft, that liberals attack as a pretext for coercion. But what is the point of cherishing the rule of law, if it does not raise the moral character of those over whom it is sovereign? The liberal belief that a conflict must exist between ethical duties and freedom under law, and that it can only be overcome by forcing ethics as a whole to the margin of private life, is therefore wrong. Our task should be to deliberate over the exact nature of the common good, while remembering that, however defined, the law by which it is set down will lose its required hold on public sentiment if it becomes the slave of power and no longer protects our most basic freedoms of speech, conscience, thought, and assembly. The key is not to bully people into being good, but to encourage virtue by making it easier for the average person to practise and rewarding its exemplars.
But if we continue to banish moral judgement from all law-giving, we will only worsen the empty chasm that increasingly defines our relativistic culture, with its broken family homes, its epidemic of drug abuse and teenage self-harm, and its indulgent gestures of cultural self-loathing. It will not be long before this void becomes so immense, and our Judeo-Christian heritage so distant, that only a tyrant can fill it.
