Government Under the Law
Most Americans, and other Westerners, claim to value a government under the law. But to what law do they refer? This law could be a law the government sets for itself, but then the statement would be meaningless: even a despotism is likely to have some standard procedures, yet no one would consider such a government to be under the law. Indeed, such a system does not strictly fit the statement, for the government would be simultaneously over and under the law, rather than purely under it. Thus, the government cannot be the source of this law.
Perhaps, then, this law is a law set by the people, yet unique to the government. But following this standard, any representative government (directly or indirectly) would be under the law, for the people in those circumstances establish a law for the government, but that law may yet be highly mutable. The Athenian admirals were executed in consonance with the laws established by the Athenians, yet few would consider the Athenian ochlarchy to be government under the law. Really, this is naught but a special case of the first instance, where the government sets the law; for in a representative, the people are the government, and thus no law alterable (or even once established and then immutable) by the people can base a government under the law.
Thus the law under which a government under the law operates comes not from the government, nor from the people. Whence else can it come? If from some external, active source, merely considering that source of law to be the government restores the objection. Thus, the law must be eternally immutable, existing outside any human agency: the natural law. A government under the law means a government under the standards of human rights established in the essential order of the universe.
Government under the law and rule by law compared
This definition of government under the law dissatisfies some, for it describes a government where the laws accord with natural law, but in which men may still rule. Should we not seek a form of government in which laws and not men rule? No, for it is impossible. Government under the law is possible, if difficult to attain and to maintain; rule of law cannot exist. Only that possessed of agency can truly rule, and agency is to God and his rational creations alone; to say that anything else rules is merely to inaccurately say that men rule in accord with laws. But they are under no necessary compulsion to do so. If a judge judges by whim, and not by law, what power has the law to punish him? Only another ruler, a man and not a law, can do so, and that ruler is either under the authority of another man or is a law unto himself. What legislator, legislating from inclination and contrary to the Constitution, has been struck by lightning emanating from the violated article? To ask the question is absurd, for parchment cannot act.
Government under the law is a condition of government, transient with each new law and each new judicial decision, and not a form of government. No form of government can assure adherence to natural law by elevating laws above men; we must only seek that form most likely to uphold natural law.