Fair Play or the Rule of Law?

The rule of law is at the center of modern constitutional thought. The phrase "rule of law" was coined in the late nineteenth century by A.V. Dicey, the influential British constitutional scholar. People have different views about what this ideal means today, but the importance of the rule of law is not denied. Indeed, we often hear worries that government actions pose a threat to the rule of law or are vital to  protecting that principle.

If you look back at the leading democratic leaders of the twentieth century, though, they said little about the rule of law. Instead, they emphasized the importance of "fair play." For instance, in his 1937 Constitution Day Address, President Franklin D. Roosevelt said: "The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect." In 1946, Winston Churchill told a Dutch audience that one of his tests for a successful democracy was whether independent courts “administer public and well-established laws associated in the human mind with the broad principles of fair play and justice? Will there be fair play for the poor as well as the rich? Will there be fair play for private persons as well as for Government officials?"

I do not know why fair play fell into decline as a democratic principle or why the rule of law became the slogan of choice. There is, though, an important difference between the two. The rule of law says  nothing about the substance of the law or about governmental norms. By contrast, fair play is a test that governs all official actions and does speak to the substance of what they do. One might say that the rule of law is a necessary, but not a sufficient, condition for constitutional democracy. 

Consider the current impeachment inquiry. When people allege that the President abused his power, they do not mean that he violated a statute or a court order. They are saying instead that he was being deeply unfair to the other party--it was not fair play. There are many legal actions that can be seen as not fair play (including FDR's own Court-packing plan, defeated in 1937). But how should fair play be defined? How did these past leaders define that idea? These are important questions worth asking.