The present controversy over the nomination of Sonia Sotomayor to the Supreme Court makes this a good time to discuss the rule of law. While I certainly have no sympathy for identity politics, I find the particular lines drawn here most peculiar. The Republicans uphold the rule of law, by which they seem to mean positive law; the democrats oppose it. This is exemplary, I believe, of an odd correlation throughout American politics.
A legal positivist, for example, ought to support the rule of law so defined. As a legal positivist, the law is not answerable to any higher standard, and so any deviation from the law, rigorously applied, can only be arbitrary. Furthermore, legal positivists tend to be communitarians, believing that the individual reaches fulfillment in the community. Correspondingly, such people should hold that the individual agents of the government reach fulfillment when acting as part of the whole, bound together by common principle: the positive law. However, this correlation does not obtain: as evidenced by the recent Supreme Court nomination, our resident population of communitarian legal positivists seems rather hostile to the rule of law in favor of identity and personality politics.
Contrapositively, one would expect those who accept natural law to oppose the rule of positive law. If the law is answerable to a higher standard, then the law should not rule except insofar as it conforms to that standard. Yet libertarians in this country seem to hope to use the law to curb the government. If the law is unjust, they appeal to the Constitution. And if the Constitution is unjust? Few libertarians have a graceful option in that circumstance. It is said that Judge Learned Hand once told Justice Holmes to “Do justice, sir, do justice”, to which Holmes replied “That is not my job. It is my job to apply the law.” And many of those who profess to support limited government support Holmes’ rejoinder. Robert Bork is a poor example, being himself a legal positivist in strange alliance with those who at least professed to support natural law, but the sentiment is widespread: Clarence Thomas holds that it is his duty to uphold the human law, whatever may be just; noted supporters of limited government Thomas Sowell and Walter Williams concur.
This definition of the rule of law does not even allow for any sensible interpretation of its common expansion, “the rule of law, not of men”, for all positive law is, by definition, made by men. Perhaps there is some benefit in having all legal decisions reference one standard, but so long as that standard is positive, the rule is still of men, merely several steps removed.
Therefore, it seems to me that the identity of the law in question must be altered from the positive law to the natural law. This law is discovered, not made, and thus its rule may be properly distinguished from that of men. It makes sense for someone who believes in the moral supremacy of natural law to support its legal supremacy as well, while it also makes sense for someone who rejects natural law to oppose its rule. Thus, interpreting the rule of law as referring to natural and not positive law explains its usage and affiliations.
Given that, however, the conclusions reached from support of the rule of law demand reconsideration. Those who support the rule of law tend to strongly oppose judicial activism. However, leaving aside activism arising from corruption or whim, I can find no fault with the judge who upholds the natural law above all human orders. Can it be consonant with the rule of law to transgress the true law on account of human fictions that aspire vainly to the title, for, as so often repeated, an unjust law is no law at all? Is not that such rule of men, and not of law? However useful human constructions may be in following the natural law, one should never bind oneself to what is not fixed. One should not bind oneself to the statutory laws, for they might be altered, and thereby made unjust. One should not bind oneself to the Constitution, for it might be amended, and thereby brought into conflict with the natural law (not to mention its myriad conflicts as it stands). One should only bind oneself to what is immutable by all human devices, the natural law.
Thus, I fail to see why Sotomayor ought to be disqualified from the Supreme Court merely because she wishes to uphold a law other than human law. The critical question, rather, should be whether she upholds the true natural law, for any other law is just as much a human invention as the laws of the US Government. However, the fact that the oath of office requires pledging allegiance to the Constitution, and not the natural law, raises difficulties perhaps insurmountable. One cannot take an oath with reservation (although signing laws with reservations seems to be working well for our presidents), so I cannot see how anyone who believes in the natural law could take the oath of office in good conscience. However, this is its own dilemma, and no fault of Sotomayor: those who are ideologically qualified to sit on the Supreme Court cannot take the oath of office in good conscience; those who are not are obviously unacceptable.