The Common Law and the Religious Foundations of the Rule of Law before Casey
![handle is hein.journals/usflr38 and id is 509 raw text is: The Common Law and the Religious
Foundations of the Rule of Law
Before Casey
By CRAIG A. STERN *
The king must not be under man but under God and under the
law, because law makes the king.1
WHATEVER IT MAY mean,2 the rule of law commands apparently
universal respect-or at least receives apparently universal lip-ser-
vice-among civil governments.3 Classically, the rule of law has been
counterpoised to the rule of man, a rule held to be much inferior.
Man is willful, apt to help friends and to harm foes even when obliged
to judge fairly. Accordingly, the standard law dictionary gives these
two pertinent definitions of rule of law: 2. The supremacy of regu-
lar as opposed to arbitrary power .... -Also termed supremacy of law.
3. The doctrine that every person is subject to the ordinary law within
the jurisdiction .... -4 The rule of law is government according to
* Professor, Regent University School of Law. B.A., Yale University; J.D., University
of Virginia. The author thanks William F. Campbell for the invitation to present a summary
of this paper at the April 2003 National Meeting of The Philadelphia Society. The author
also thanks Jeff Brauch, Mary Bunch, Joe Kickasola, Courtney Laginess, Holly Miller, Susan
Stewart, Alvin Warren, Eric Welsh, and Regent University for their generous assistance.
1. 2 BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 33 (photo. reprint 1997)
(Samuel E. Thorne trans., Harvard Univ. Press 1968) (circa 1250) (footnote omitted). Ipse
autem rex non debet esse sub homine sed sub deo et sub lege, quia lexfacit regem (original Latin of
cited quote). 2 id. at 33 (footnote omitted).
2. SeeJudith N. Shklar, Political Theory and the Rule of Law, in THE RULE OF LAW: IDEAL
OR IDEOLOGY 1 (Allan C. Hutchinson & Patrick Monahan eds., 1987) (arguing that [i]t
would not be very difficult to show that the phrase 'the Rule of Law' has become meaning-
less thanks to ideological abuse and general over-use .... The upshot is that the Rule of
Law is now situated, intellectually, in a political vacuum.).
3. Brian Z. Tamanaha, The Rule ofLawforEveryone, Social Science Research Network
Electronic Library at http://papers.ssrn.com/sol3/delivery.cfm/SSRNID312622code0205
17140.pdfPabstractid=312622 (last accessed Apr. 18, 2004). Even Marxist rulers, if not
Marxist academics, have endorsed the rule of law. Id. at 4; see a/soJohn N. Paden, The World
Trade Organization and the Rule of Law in China: A First-Year Assessment, VA. LAw., Apr. 2003,
at 20, 21.
4. BLACK'S LAw DICTIONARY 1332 (7th ed. 1999).](ViewImageLocal?handle=hein.journals/usflr38&div=28&collection=&method=preview&ext=.png&size=3)
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The Common Law and the Religious Foundations of the Rule of Law before Casey
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