For much of human history, the dominant legal principle was rex lex—“the king is law.” In the 1600s, though, that view was subverted, mostly by Christian thinkers like Samuel Rutherford, who claimed lex rex—“the law is king.” Since then most Western governments have adopted the principle of that the rule of law, rather than the arbitrary diktats of government officials, should govern a nation.
Increasingly, though, the principle of rule of law is being replaced, as Bruce Frohnen says, by “rule by law.” The idea is that since the final power to decide must reside somewhere, whoever has that ability to decide is sovereign (a prime example is the concept of “judicial supremacy”). This shift from rule of law to rule by law (or rule by quasi-law) has profound effects on both our freedom and the legitimacy of the law itself:
The distinction between rule of law and rule by law is an important one. It shows that we have allowed development of a power that is no longer limited by the rules of our Constitution. A people merely ruled by law is less free than one living under the rule of law for the simple reason that the laws do not apply to the rulers. Thus, for example, members of Congress do not have to abide, in their own offices, by the labor, safety, and other laws that apply to private sector employers. Those in government, no longer constrained by having to live under the laws they make, take it upon themselves to micromanage the rest of us in ways that make sense only in terms of the abstract goals they set for themselves. They use “law” to signal to voters that they “care” about various good things—from workplace safety to the environment—but leave the difficulties of actually formulating rules of action to the discretion of administrators. Increasingly, those who are or have been in government form a class separate from the people, with separate goals and interests, including economic interests dictating policies and laws that undermine the common good. Thus massively unpopular policies, like those enticing large numbers of workers to immigrate to the United States to undercut domestic salaries, massive bailouts for corrupt bankers, and massive subsidies for well-connected “green” industrialists, become standard fare.
But something else happens as well. Under rule by law the rule of law is not merely cabined; that is, it is not merely the case that the people are ruled by law while the rulers are not. Increasingly, law itself is undermined, tailored, and overridden to the point where it loses its essential character.