Chapter 3 - Sovereignty

Summary

With the expression ‘government of laws not men’, the rule of law promises the restraint of sovereign power. Its guarantee to bind government to law and keep tyranny at bay is arguably the rule of law's most compelling claim as a public good. Indeed, in the aftermath of September 11, 2001, discomfort with counter-terrorist measures ‘at home’ have been consistently articulated in rule of law language, while – as we shall see in Chapter 5 – similar measures undertaken abroad are described as ‘rule of law promotion’.

In keeping with the overarching theme of Part I, I will not be seeking here to define the ‘rule of law’ as a known art of subjection of sovereignty to law; rather I will be inquiring into the historical and thematic shaping of this central element of the rule of law register. In a first section I will revisit the inaugural, but highly ambivalent, discussion of the ‘sovereignty of law’ in Aristotle's Politics, a treatise often said to lie at the origin of the modern rule of law. A second section will turn to a contemporary philosopher, Giorgio Agamben, who describes a relation between law and sovereignty that is rather mutually expansive than restraining.

ARISTOTLE: NOMARCHY (THE SOVEREIGNTY OF LAW)

The conception of the rule of law as prioritising or guaranteeing sovereign restraint is often traced back to a statement of Aristotle's, often translated as follows: ‘The rule of law, it is said, is preferable to that of any individual.’