Is the rule of law sacred?

Just because preserving the rule of law is a French problem does not mean it has no relevance to the United States. On the contrary. The current Minister of the Interior, France’s top cop, recently stated (see Nicolas Bastuk and Samuel Dufay, “Is it droit il sacré?‘ or ‘Is the rule of law sacred?’ in Le PuntOctober 10, 2024):

The rule of law is neither inviolable nor sacred. [Its] source is the sovereign people.

The right to act is intangible and sacred. [Sa] source, c’est le peuple souverain.

The classical liberal definition of the rule of law can be taken from Friedrich Hayek. In his Law, legislation and freedomwith which he identified it

rules that regulate the behavior of persons towards others, apply to an unknown number of future cases and contain prohibitions that demarcate the boundary of each person’s protected domain.

The rule of law is a “government of laws” rather than a “government by men,” as the standard formula goes. The so-called ‘sovereign people’ themselves are just a group of men. Hayek believed that, unlike political gangs, these general rules or laws necessarily emerge in the long run from the opinion of “the people” – which introduces some indeterminacy into the distinction between the rule of law and popular sovereignty. But like all classical liberals, Hayek was still convinced that the people should not be considered sovereign, that is, that they should not have supreme or unlimited power.

The idea that the rule of law is incompatible with the sovereignty of the people was powerfully expressed by Émile Faguet, a French literary critic and historian of political ideas, in his 1903 book Liberalism (Liberalism):

[My translation:] If the people are sovereign by right, and that is exactly what the authors of the Declarations do [the 1789 Declaration of the Rights of Man and the Citizen, and the one of 1793]the people, because they are sovereign, have the right to abolish all individual rights. That’s the conflict. For example, placing the rights of the people and the rights of man, the sovereignty of the people and freedom, on the same level in the same declaration is like throwing water and fire and asking them to settle their differences. …

The authors of the Declarations, even of the less flawed first, were both Democrats and Liberals; they believed in both individual freedom and the sovereignty of the people. This led them to incorporate a fundamental antinomy into their work.

[Original French:] If the people have the right, it is worth paying attention to this editorial Statementsthe people in law, in their sovereignty, receive the rights of the individual. And voilà the conflict. With a single declaration of the people and their lives, the sovereignty of the people and freedom as an example, with a good title, it is also a matter of nature and life and the freedom of expression. bien s’arranging ensemble. […]

The authors of Statementsmême de la première, quoique moins, étaient à la fois démocrates en libéraux, et ils croyaient à la fois à la liberté individualelle et à la souveraineté du peuple. It is a flaw in his work, a fundamental antinomy.

Heirs of the Enlightenment, like the French constitutional writers, the American founding fathers made the same mistake, even if they were more suspicious of popular sovereignty; their descendants became less suspicious as time went on. The issue remains very relevant in today’s America.

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