Rule of Law

Historical Roots of the Concept

Prima facie, the institutional ideal of the rule of law pivots on the meaning of impartial and abstract rules, on the foundations of the nomos (order). The origin of the concept of rule of law dates back to classical Greece. By emphasizing the importance of relations among equals, Plato's Laws and Aristotle's Politics, Book III elaborate a vision of nomos whose rules transcend the subjective will and men's protean proclivities. A nomos is the rule of laws, which is in contrast with the rule of men. The relevance of cogent laws for the entire political community became one of the pillars of Roman civilization, within which the law (ius) split into ius gentium (the Roman law that is in force for other populations) and ius civilis (the ensemble of laws deriving from legal experts, assemblies, and emperors' rule-making activities). Part of the ius civilis was constituted by laws in the strict sense of the word or, more precisely, by those laws adopted by assemblies (lex). As Charles McIlwain (1940) stressed, the difference between the concepts of ius and lex can be summarized against this background in classicism, from which the term rule of law inherited a semantic ambiguity, being understood as both rule by ius and rule by lex.

The Middle Ages grafted on this first form of ambiguity (law vs. enacted law) the seed of a second element of criticality. In the Middle Ages, the [Page 2336]political order was legitimate to the extent that it reflected the rationale (ratio) of a transcendent order, the divine one. From this viewpoint, formal legitimacy and substantive legitimacy could only converge. As noted by James Blythe (1992), a political order, such as the Holy Roman Empire, that emanated from divine investiture (and from obeying the behavioral precepts mandated by the religious tradition) had to derive from that investiture the pledge of its own “fairness.” The appearance of modernity on the institutional scene, and with it the separation of the moral system from the political and legal system, created an irreparable split between the formal and the normative understandings of the rule of law.

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