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The Conservative Version of The Rule of Law
Originally published in George Mason Legal Studies Research Paper No. LS 24-27
Establishing the rule of law requires two elements. First, an articulation of the concept that there is a higher law above the government from which the government derives its legitimate authority but which also constrains the exercise of that power. Second, there must be an effective institutional structure for actually enforcing the rule of law's limits on the government in practice.
Three theories have been articulated that can meet these challenges of the rule of law: natural law, social contract theory, and a "conservative" version of the rule of law. This essay focuses on the last. Under the conservative version of the rule of law, both the legitimate authority of the government and constraints upon it are derived from history, tradition, and the particular character of a political community. Rather than the concept of the rule of law emerging as a pre-political concept which is then implemented in practice, under the conservative version of the rule of law, limits are first imposed on the government in practice and only later theorized into principles of constitutionalism. The logic of the conservative version of the rule of law is illustrated through a focus on the ideas of three thinkers: David Hume, Edmund Burke, and Russell Kirk.
