The Difference Between "Rule of Law" and "Rule by Law" (A.G. Gonzales Please Take Note)

Brian Tamanaha

Although there are various definitions of the “rule of law,” a core element that all definitions share is the notion that the government and its citizens must abide by the law. This idea raises a problem that prompted philosophers as diverse as Aquinas and Hobbes to express doubts about whether the rule of law is possible. The problem is this: the government is the source of (state) law, so it cannot be bound or coerced by the law, because one cannot bind or coerce oneself. In Hobbes’ words, “he that is bound to himself only, is not bound.” Aquinas put it in these terms: “The sovereign is said to be exempt from the law; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence upon him, if he acts against the law.”

We have partially solved this conundrum through an institutionalized separation of the “sovereign.” Now there is no single sovereign in control of producing and applying the law, but rather legal actions are divided up between the legislature, executive, and judiciary. Thus it is no longer the case that a sovereign “is bound to himself only,” because each institution has various ways to hold the others accountable to the law. That’s how it’s supposed to work in our system (in theory anyway).

This arrangement helps, but it does not eliminate the problem. The ultimate guarantor of the rule of law is the power to threaten and exert violence, which is allocated to the executive branch. That is where the problem reappears in concentrated form. How can the executive branch be subject to coercion if it is the source of coercion? More specifically, how can we insure that the Justice Department, which holds the coercive power of the federal government, abides by and enforces the law?

We can try internally dividing up the Justice Department, with one part holding the others accountable, but that can only go so far. The Office of the Inspector General and the Office of Professional Responsibility investigate questions of legal impropriety within the Justice Department (and by internal regulation an independent prosecutor can be appointed when the need arises). But none of these various institutional arrangements necessarily solve the problem, for all are internal to the Justice Department, and therefore are susceptible to influence. If the entire Justice Department is compromised, it is impossible to construct any mechanism that will be capable of “coercing the coercive power.” Under these circumstances, the rule of law, in the sense that the government is bound by the law, would indeed be impossible.

In the end, Hobbes and Aquinas were right: whatever wields the coercive power cannot coerce itself. The only possible answer to this problem was given by Aquinas: the source of coercive power, through a commitment of its own will, must bind itself to abide by the law in good faith. Without this, the rule of law would not exist. It’s a thin reed on which to rest the rule of law, but there is no other way.

For this reason, although it has largely gone unnoticed from the outside, the non-partisan culture within the Justice Department has made a large contribution to the rule of law. Although the heads of divisions are political appointees who change with administrations, the rank and file have always taken pride in being excellent lawyers committed to upholding the law. The political party membership of the lawyer didn’t matter. Administrations may be Republican or Democratic, but never the Justice Department itself. What made this work was the commitment of each lawyer to, above all else, abide by and act consistent with the law.

This is why the systematic ideological (party membership, political beliefs, etc.) screening of applicants for positions in the Justice Department poses such a serious threat to the rule of law. The evident purpose of this screening is to insure that the legal actions and decisions of Justice Department lawyers will be consistent with and further an ideological agenda. Although recent reports about this effort place the blame on a neophyte lawyer, Monica Goodling, she was appointed by others who knew what she was doing, and she is just one player in a broader pattern to seed the Justice Department with ideologues.

An editorial in the New York Times said this effort by the Bush Administration would “politicize the rule of law,” but that is an oxymoron. When the institution that has the authority to enforce the law—wielding the awesome coercive power of the government—becomes “politicized,” the “rule of law” fails to exist.

The system becomes one of “rule by law,” in which those who control the levers of government utilize the law to advance their ends (as Marty details below). This is not a partisan issue. Everyone—Republicans, Democrats, and independents—should be alarmed.
Posted 3:43 PM by Brian Tamanaha [link]