A Government of Laws, Not Men

Professor Josh Dunn explains the rule of law as the alternative to tyranny and a means to prevent arbitrary power. He traces its origins from Aristotle's concept that "law is reason unaffected by desire" through the American founders' attempts to create institutions that force reflection on the common good rather than self-interest.

• Rule of law requires three principles: constitutionalism, equality, and transparency
• Constitutionalism establishes rules of governance ahead of time through separation of powers, checks and balances
• Equality means laws must be applied identically to everyone regardless of wealth or status
• Transparency requires laws to be known, understandable, and accessible to citizens
• James Madison worried about laws becoming "so voluminous they cannot be read or so incoherent they cannot be understood"
• John Adams described the goal as creating "a government of laws and not of men" in the Massachusetts Constitution of 1780
• Modern challenges include the vast volume of laws and regulations created by multiple levels of government and administrative agencies
• The rule of law is necessary for freedom because citizens must know what is allowed to direct their actions

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Episode Transcript

Speaker 1 (00:00):
All right, welcome back everyone.
This is actually the lastquestion for our first section
and I am really excited to haveProfessor Josh Dunn with us.
I have worked with Dr Dunn onmany occasions.
He is now a professor and theexecutive director at the
Institute of American Civics atthe University of Tennessee,
knoxville.

(00:20):
Dr Dunn, thank you so much forbeing here.
And our question today looks atthe rule of law.
So can you tell us what is therule of law and why is it
important?

Speaker 2 (00:32):
So I'll start with the second part of that question
first, and it's great to bewith you again.
The answer to the second partof that question is the
alternative to tyranny.
The American founders saw therule of law as the antidote to
arbitrary power, and arbitrarypower was the definition of

(00:52):
tyranny.
I want to go back in time alittle bit, though, and look at
what Aristotle said about therule of law.
The most famous thing everwritten on the rule of law comes
from his politics, and it'sthis passage.
He said he who bids the lawrule may be deemed to be God and
reason rule alone, but he whobids man rule adds an element of

(01:14):
the beast, for desire is a wildbeast, and passion perverts the
minds of rulers, even when theyare the best of men.
Law is reason unaffected bydesire.
Law is reason unaffected bydesire.
I think there's a deep truth tothat, and when we start to look
at the American founders and thepeople who influenced them,

(01:35):
like John Locke, we see some ofthis conception of the rule of
law emerging in their thought,and then also the mechanisms for
trying to attain it.
Now you'll notice, of course,this might be a little bit of a
problem.
It says if you want the law torule, you're bidding God to rule
, and so in the absence oftheocracy, you can't have that

(01:57):
and reason to rule alone.
And then he says if you haveman rule, you add an element of
the beast.
An element of the beast.
So the problem is is that wecan't really have rule by God if
we don't have theocracy, sowe're stuck with human beings,
men, and so there's this elementof the beast.
And so the trick is trying tofigure out how to get to reason
unaffected by desire, that partof us that allows us to

(02:20):
transcend our own passions anddesires and push us towards the
common good, which is ultimatelywhat the rule of law is
supposed to lead us towards.

Speaker 1 (02:33):
So in the Aristotle quote you gave, talking about
reason unaffected by desire, canyou, for our listeners, kind of
go into that a little bit moreLike what does it mean to be
unaffected by desire in terms ofgoverning and things like that?

Speaker 2 (02:50):
So I think the best way to think about it is that
you are put in a position whereyou are forced to reflect on the
common good rather than justyour own good.
Everyone comes to the politicaltable wanting what they want.
They have their own interests,and the language of the
Federalist Papers and Federalist10 were all parts of factions,

(03:13):
and so what the founders triedto do was organize the regime in
such a way and the institutionsin such a way so that people
were forced to set aside theirown immediate interest and
reflect on the public good.
And you actually see JamesMadison say this at the end of
Federalist 51.
He talks about how, in theextended republic of the United

(03:36):
States, along with institutionssuch as separation of powers,
checks and balances andfederalism, is going to be very
difficult for one group to uniteagainst all the common
interests, and so people wouldbe forced to reflect on justice
and the general good, and sothat would be reason unaffected
by desire.

Speaker 1 (03:54):
So a properly structured political regime kind
of forces you to think beyondyour own immediate self-interest
currently so, for, you know,talking to students or anybody,
that's like you know, thissounds like you know, aristotle
is back in the day and JamesMadison, you know, back in the
day.
How does rule of law affect ustoday?

Speaker 2 (04:17):
Well, so if you look at the founder's understanding
of the rule of law, you can atleast see three principles that
are required to be met in orderto achieve it you have to have
constitutionalism, you have tohave equality and you have to
have transparency.
So you think aboutconstitutionals and what is

(04:37):
constitutional and really whatconstitutionalism is?
Establishing the rules of thegame ahead of time so that when
government makes decisions ithas to follow these fixed rules.
And you can see that withseparation of powers, checks and
balances, federalism in theConstitution.
So constitutionalism, I think,matters for us today.
Everyone should understand thatand recognize that the law and

(05:07):
again you go back you can seeJohn Locke talk about this there
shouldn't be one rule for thewealthy person and another for
the poor.
Everyone has to be treatedequally under the law in order
for you to really have the ruleof law.
Otherwise you just kind of havearbitrary power.
If some people are treateddifferently, it doesn't mean
social equality.
It means that the legal rulesare applied to everyone in the

(05:28):
same way.
And then transparency, andtransparency would mean that the
laws have to be known andunderstandable, established laws

(05:48):
or rules.
So to promulgate means toannounce.
In other words, you can't havesecret laws.
Yeah, communist regimes lovedsecret laws because that meant
that they could always getpeople, but that wasn't the law
then, because you never knewwhat you were allowed to do and
what you weren't allowed to do.
And in a way, you can think ofit this way that the rule of law
is necessary for freedom,because if you don't know what
is allowed and not allowed, youdon't know how to direct and

(06:10):
order your actions.
And then the understandablepart of transparency.
So when Locke talked about theyhad to be established.
That meant that they couldn'tbe routinely changed, because
that would make it difficult toknow what they are.
And another element of thatwould be that they have to be

(06:30):
accessible to the people.
And this raises perhaps someuncomfortable questions for us.
Today.
When we have such a voluminousbody of law, is it really
possible for the ordinarycitizen to know what is allowed
and what's not allowed?
And then, when you haveadministrative agencies, for
instance, what's not allowed,and then, when you have
administrative agencies, forinstance, constructing rules
that have the full of force andeffective law, that makes it

(06:51):
even more difficult.
So you have the laws thatemerge from Congress, the
president, from the legislaturesstate legislatures, local
governments, but then you alsohave these administrative
agencies at multiple levels ofgovernment as well.
So there is yeah, I think youcould ask some questions about
how understandable it is, howtransparent it is for the

(07:13):
ordinary citizen today when youlook, say, at the Federal
Register.

Speaker 1 (07:17):
And I love that you kind of go through these three
principles.
And I want to talk quicklyabout equality under the law.
So that means if you're acongressperson, if you're a
judge, if you're a teacher or astudent, the law applies to
everyone equally, is thatcorrect?

Speaker 2 (07:44):
on you, throw you in jail.
It's charging you with a crime.
The rule of law requires thatyou be given the same legal
procedures as everyone else.
That just because you might bean unpopular defendant doesn't
mean that they get to waive yourright to confront your accuser
or have a jury of your peers ora right to counsel.
That would be equality of thelaw in the judicial setting.
That would be equality of thelaw in the judicial setting.

Speaker 1 (08:02):
So when you talk about accessibility, I'm
thinking about like the amountof laws there are and like
understanding what that is.
Is there any founder that?

Speaker 2 (08:19):
kind of gave us a quote or like some insight on
that.
Yes, in Federalist 62, jamesMadison said it will be of
little avail to the people thatthe laws are made by men of
their own choice if the laws beso voluminous that they cannot
be read or so incoherent thatthey cannot be understood.
So he obviously was deeplyconcerned about this potential

(08:40):
for the laws to you could saymetastasize and become so large
and incoherent that no one couldactually understand them.

Speaker 1 (08:47):
And then, is there any kind of in the founding era
applications to this Like werethere any states, any
constitutions like that?
That would give some insight aswell.

Speaker 2 (09:00):
Yeah.
So one great place to lookwould be the Massachusetts
Constitution of 1780.
So John Adams came back toMassachusetts he had been
serving in France as a diplomatfor us during the Revolutionary
War and he returned for a fewmonths to Massachusetts and then
promptly wrote the Constitutionof Massachusetts and the

(09:21):
conclusion there, theConstitution that he wrote when,
if you look at it, it containsmany of the same principles that
you end up seeing in thefederal Constitution, such as
separation of powers.
But he said, the end result ofthis is supposed to create a
government of laws and not ofmen.
The goal of this, theseinstitutions, this

(09:42):
constitutional framework, was tocreate a government of laws and
not of men.
So this was deeply embedded intheir minds.
They thought it was absolutelycrucial and the point of the
Constitution, the point of theMassachusetts Constitution, the
point of the US Constitution,was try to achieve this result
of a government of laws and notof men.

Speaker 1 (10:00):
Wonderful.
Dr Dunn, thank you so much.
You've given us so much tothink about in such a short time
and I really appreciate yourtime and expertise.

Speaker 2 (10:10):
Thanks for having me, Liz.
It's great to see you again.