Judicial ReEngineering

In 1607, English Chief Justice
Sir Edward Coke said in the
Case of Prohibitions (according
to his own report) "that the law
was the golden met-wand and
measure to try the causes of the
subjects; and which protected
His Majesty in safety and peace:
with which the King was greatly
offended, and said, that then he
should be under the law, which
was treason to affirm, as he said;
to which I said, that Bracton
saith, quod Rex non debed esse
sub homine, sed sub Deo et lege
(That the King ought not to be
under any man but under God
and the law.)."
Among the first modern authors
to give the principle theoretical
foundations was Samuel
Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the traditional
formulation rex lex ("the king is law"). John Locke also discussed this issue in his Second
Treatise of Government (1690). The principle was also discussed by Montesquieu in The Spirit
of the Laws (1748). The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755).
In 1776, the notion that no one is above the law was popular during the founding of the United
States. For example, Thomas Paine wrote in his pamphlet Common Sense that "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."
Categorization
The Oxford English Dictionary has defined "rule of law" this way:
“The authority and influence of law in society, esp. when viewed as a constraint on individual and
institutional behaviour; (hence) the principle whereby all members of a society (including those in
government) are considered equally subject to publicly disclosed legal codes and processes.”
Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that
the ruler is above the law, for example by divine right.
Despite wide use by politicians, judges and academics, the rule of law has been described as "an
exceedingly elusive notion" According to political theorist Judith N. Shklar, "the phrase 'the Rule
Page 63 of 115