By D P Curtin, Public Discourse.
The rule of law endures only where law acknowledges that the state is not the highest authority.
The modern legal system often speaks as if the rule of law were purely and exclusively a procedural achievement: stable social institutions, predictable and cogent rules, neutral and nonpartisan enforcement. This view of jurisprudence is commonly called legal positivism. According to this view, law does not need moral content so long as it is applied consistently.
The idea of justice has little objectivity in this account and is largely synonymous with the idea of administrative regularity. However, this understanding rests on a quiet assumption that has become increasingly difficult to defend in the rising tide of postmodernity: the authority of law can be generated entirely from within the authority and competence of the state. Moreover, it presumes that the institution of the law is entirely constructivist by nature and does not require a foundational source.
Western legal tradition, by contrast, has long maintained that law depends on moral limits the state does not invent and cannot, by its limited functional competence, erase. Without the recognition of those limits, legality collapses into being solely a function of “might makes right,” and devolves into the exercise of arbitrary political power.
This time-tested insight is nowhere more clearly articulated than in the thought of St. Augustine of Hippo, one of the most perceptive analysts of political authority in late antiquity. His seminal work, The City of God, would imprint itself on Western moral consciousness and ideas of the legitimacy of state and government for the next fifteen centuries. Writing in the shadow of the Roman Empire’s collapse, St. Augustine confronted a moral problem that remains just as pressing today as it was in the fifth century: what distinguishes lawful authority from organized coercion?
His answer to this is fairly stark. A state that lacks justice, he argues, differs from a criminal band only in scale. Laws that abandon justice may still be enforceable, but they lose their claim to moral legitimacy. Obedience to the law may still be compelled by the powers that be, but it is no longer owed in the fullest sense.