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[5] . Laws IV 715d at 102. Where the law is itself ruled over and lacks sovereign authority, I see destruction at hand for such a place. But where it is despot over the rulers and the rulers are slaves of the law, there I foresee safety and all good things which the gods have given to cities
[6] Plato Laws IV 713c, The Laws of Plato. trans. Thomas L. Pangle Whicago: University of Chicago Press, 1988) at 99. And see Laws IX, 875a-876a. In Plato's Laws personal rule or the supremacy of human beings in the political community is condemned because "human nature is not at all capable of regulating the human things, when it possesses autocratic authority over everything, without becoming swollen with insolence and injustice
[7] "...in public life and in private life-in the arrangement of our households and our cities should obey whatever within us partakes of immortality, giving the name *law' to the distribution ordained by intelligence." Laws IV 714a at 100. Plato identifies the rule of law with the rule of reason or understanding--"whatever within us partakes of immortality.
[8] Likewise, Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws." The ancient concept of rule of law is to be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that under the rule of law the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that suppresses in a legalistic fashion."
[9] Aristotle, Politics In, 1287a in The Politics of Aristotle. trans. Ernest Barker (New York: Oxford University Press, 1962) at 146. Barker points out in a note that Aristotle here uses the language of Plato's Republic for the paris of the soul. Plato's voice can be heard in Aristotle's account of the rule of law: "He who commands that law should rule may thus be regarded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast. Appetite has that character, and high spirit, too, perverts the holders of office, even when they are the best of men. Law ...may thus be defined as 'Reason free from all passion'
[10] For Aristotle the touchstones of good government are rule by law (so far as consistent with equity and administrative flexibility to cope with unforeseen situations) and constitutional stability. (6/26)
[11] there originates with Polybius the constitution of checking and balancing organs (not functions as yet). (6/26)
[12] In 1215 AD, a similar development occurred in England: King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta.
O. John Rogge * of the New York Bar (New York City).O. John Rogge， The,Rule of Law, 46 A.B.A. J. (1960) pages 981 to 986
[13] F. 5b. In 1215 in Magna Charta, King John promised his barons at Runnymede: "No freeman shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him, nor send upon him, except by the lawful judgment of his peers or [per legem terrae] by the law of the land." Bracton in his Tratatus de legibus, the second great treatise on English law, the main part of which was probably written between 1250-58, stated that the royal power should be exercised subject to the law
[14] 28Edw. 3. c. 3 (1354). Edward III (1327-77), in addition to his frequent confirmations of Magna Charta, in 1354 further provided "that no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer [par due proces de lei] by due process of law
[15] Edward Coke in his famous Sunday morning conference (1608) with James I of England quoted himself as saying, attributing them to Bracton, NON SUB HOMINE SED SUB DEO ET LEGE [not under man but under God and the law]. Bracton was an English judge and writer who died in 1268.
[16] At 27 (Morley ed. 1887). James Harrington in his The Commonwealth of Oceana, published in 1656 after the execution of Charles I and dedicated to Oliver Cromwell, insisted on "an empire of laws, and not of men
[17] It is by this mixture of monarchical, aristocratical, and democratical power, blended together in one s-y-stem, and by these three estates balancing one another, that our free constitution of government hath been preserved so long inviolate. (6/26)
[18] In England, where Montesquieu professed having found the doctrine in operation, there existed neither a separation of government organs nor a balance of social classes. The country was ruled, partly through a s-y-stem of pervasive parliamentary corruption, by an oligarchy of land- owning peers. There was, to be sure, a distinction of functions between legislation, on the one hand, and executive action under the residues of the royal prerogative, on the other. A separation of powers, however, did not go farther than the independence of the judges, guaranteed by the Act of Settlement (1700). (6/26)
[19] the rule of law become a fundamental principle of the common law. in its most basic form the rule of law means eauality, fairness, and justice before the law. By Barrie J.Saxton & Ronald T.Stansfield, Understanding Criminal Offences, Carswell 1996.P.3. (6/22)
[20] Subsequently, two of the first modern authors to give the principle theoretical foundations were Samuel Rutherford in Lex, Rex (1644) and John Locke in his Second Treatise of Government (1690). Later, the principle was further entrenched by Montesquieu in The Spirit of the Laws (1748).
[21] Locke, Second Treatise on Civil Government, ch. 12 §§ 149-50 (1685).)His separation of functions is plainly designed to guarantee the supremacy of the legislative, the rigorous sub- ordination of administration and judging, and hence predictable rule by law: “In a Constituted Commonwealth . . . there can be but one Supreme Power, which is the Legislative, -to which all the rest are and must be subordinate... For what can give Laws to another, must needs be superior to him.”
[22] In Montesquieu's words, "The national judges are no more than the mouth that pronounces the words of the law, mere passive beings incapable of moderating either its force or rigor. （11 Montesquieu, Esprit des Lois 6 (1748). Almost identically, see Chief Justice Marshall's opinion in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824).）
[23] The only innovation he contributed to the mixed-government doctrine lies in the nature of the governmental balance, it is his rigid separation of the three powers, coupled with the unwarranted implication in which it is necessary for organs (powers) and functions to coincide. (6/26)
[24] the legal doctrine of the French Revolution. All law is legislative will. Customary law and judicial interpretation alike are rejected. The judge becomes a "juridical slot machine," a "subsumption automaton" calculating decisions from the legal texts by means of mathematic-like formulae. (7/1)
[25] The first steps toward judicial independence in Prussia were taken in the Judiciary Act (Justizressortreglement) of 1749, fathered by the natural law jurist, Samuel von Cocceji.
[26] 4 Charles Francis Adams The Works Of JOHN Adams 230 (1851). In the next century John Adams, in his The Report of a Constitution, or Form of Government, for the Commonwealth of Massachusetts, proposed: "In the government of the Commonwealth of Massachusetts, the legislative, executive and judicial power shall be placed in separate departments, Lo the end that it might be a government of laws, and not of men。 In 1776, the notion that no one is above the law was popular during the founding of the United States, for example in the pamphlet Common Sense by Thomas Paine: "in America, the law is King. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men." (6/30)
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