“One who asks law to rule,” Aristotle observes, “seems to be asking god and intellect alone to rule, while one who asks man adds the beast.”
By god, Aristotle means the supreme intellect, whose superiority consists partly in not relying on a limited supply of brain cells, and partly in being free of the passions whose power so often “perverts rulers and the best of men.”
In this life, law cannot actually replace the rule of men, for men make the human laws, and even natural and divine law must be enforced here below by human beings, with all their beastly inclinations.
The true merit of the rule of law is not that it enables law to rule us without us, but rather that it structures our self-rule so as to check what is beastly and encourage what is godly in our nature.
Law brings out the best in us in several ways. To begin with, the drafting of laws invites us to search for our wisest men and let them craft the rules by which all (themselves included) must abide, assuming that we carry through with the bargain.
When, in the course of human events, we encounter peculiar or unanticipated problems, even the wisest laws will not have anticipated all the relevant details. In such cases, the rules must be adjusted or amended by “law-guardians” and “servants of the law,” whose study of and respect for the law has trained them to apply timeless principles to peculiar situations.
These men need not possess the genius of lawmakers, but they should at least have proven themselves their apt and dutiful students.
Finally, law refines our nature by dividing political authority into “certain offices,” none of which is able to rule alone, thereby preventing any particular faction within society from capturing government as a whole. The price of fulfilling one faction’s desires will be compromise with those of others, whose aversion to injury will stimulate them to object to the most objectionable features in one another’s plans.
What we call separation of powers, and checks and balances, work if and only if several elements come together: wise laws; education in those laws; and free and intelligent negotiation among men holding office under those laws.
When these desiderata hold, the hope is that the beastly desires of one group will be called out by another, and the native intelligence of the offenders will enable them to recognize their folly, and modify their demands.
They may then return this favor to their fellow citizens, when necessary.
The rule of law therefore presupposes citizens capable of reasoning soundly about public matters: that is, of deliberation.
How can we cultivate this virtue? As my piano teacher told me ages ago: practice makes perfect!
If we hope to restore our republic in the foreseeable future, daily exercises in deliberation are in order.
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