Higher Law and the Rule of Law: The Platonic Origin of an Ideal

Abstract

The theoretical argument for the rule of law has a long history in the West, and the further back one goes, the closer one gets to an explicit connection with something like "higher law." There is an explicit connection at the very beginning of the tradition, but it entails an often overlooked aspect. While we can find the earliest arguments for the rule of law in the writings of Plato and Aristotle, it is perhaps even more striking to those of us trained in the view of the rule of law simply as a kind of ideal that the classical authors saw it as a second-best solution to a larger problem. Indeed, they are just as aware of its drawbacks as of its advantages. For the classics, the ideal is the rule of reason or intelligence, and the rule of law is a kind of necessary compromise of that. We can see this most clearly illustrated in the writings of Plato. In what follows, I try to excavate this tradition by looking at two parts of Plato's account: his argument for the priority of the rule of the virtuous wise in the Republic and his argument for the rule of law in his less often read Laws. It is important that the rule of law is more complicated than often noticed. Law does not simply rule on its own but is intelligible and made possible by a context of challenges and supports. The rule of law is difficult to successfully establish and difficult to maintain absent a supporting culture. Such a culture includes opinions that back the efficacy of law and other quasi-legal practices and habits. It also requires both a disinclination to change law and a means of doing so when necessary. These are all parts of Plato's argument in the Laws, and they reveal frequently overlooked aspects of what is often taken to be something of a commonplace. It is also important throughout that the second-best standard of the rule of law retains its connection with the simply best: the rule of reason. In the concluding section, I briefly look at how the Platonic notion made its way through the thought of Aristotle to the most celebrated natural law account, that of Saint Thomas Aquinas.