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8 Harv. J. L. & Pub. Pol'y 323 (1985)
Constitutionalism and the Rule of Law

handle is hein.journals/hjlpp8 and id is 339 raw text is: CONSTITUTIONALISM AND THE RULE OF
In moments of self-congratulation, we say to ourselves that
we have a government of laws, not of men. It was such a
moment when Americans rid themselves of Richard Nixon, us-
ing this phrase to show that it was not enough for the landslide
majority of Nixon voters to win, or that it was not even win-
ning, unless such a person as he turned out to be was unseated
with a reassertion of law. As citizens and voters, we prefer a
triumph that we share with a triumph of law over a purely parti-
san or personal triumph. I will discuss this rule of law briefly
from Aristotle, particularly Book III of his Politics, under the
confident assumption that no new diffidulties have been found
since Aristotle, though perhaps a new solution has appeared.i
The government of men means a government of particular
men, but all men are particular men. Therefore, a government
of laws, when it is understood as against a government of men,
is understood as against men in general as rulers. In this view,
law appears to be superior to men, as a link between the human
and the nonhuman, or the nonhuman that is superhuman, so
that the impartiality of law comes from its being above human
.beings-from God, or from nature.2 This impartiality of law
holds down our human partiality, and prevents us from hav-
ing it our own way. It is a restraint on our self-preference, our
ambition, and our boastfulness. In light of the things above us
which are brought home to us by law, men are inferior crea-
tures, incapable of governing on their own.
In the phrase government of laws, law also has another,
opposite function. It is not only a link between the human and
the superhuman, but also the distinguishing boundary between a
community of human beings and a herd of beasts.3 A herd of
beasts which lives by its instincts is to be distinguished from a
* Professor of Government, Harvard University.
1. See ARISTOTLE, THE POLITICS (C. Lord trans. 1984). For ease of reference to the
various editions of Aristotle's Politics, specific passages will be cited, as is the scholarly
convention, by the 1831 Berlin edition notation rather than by the pagination of the
Lord translation.
2. Id., 1287 a 28-32.
3. Id., 1281 b 15-1282 b 7.

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