National University For Study and Research In Law

Constitutional Law

MID-TERM RESEARCH PAPER

FINAL DRAFT ON ‘RULE OF LAW AND CONSTITUTIONALISM’

Submitted to: Submitted by:

Dr. K.Shyamala Anwesa Paul

Semester IInd(A)

Roll no.-493
At least since John Locke, writers have pitted power against lawfulness, championing the rule of
law for its protection of the political order against both popular and governmental overreaching.
Aristotle is often cited as the source of this opposition between power and lawfulness insofar as
he takes law to constrain the overreaching characteristic of human nature, the rule of law to
exemplify reason’s moderation of desire, and the constitution to be the source of the rule of law.
Offering an interpretation of Aristotle which challenges the opposition between reason and desire
driving most formulations of the rule of law, this Article argues that Aristotle understands the
rule of law as itself a practice of political power, issuing from practical wisdom, which combines
reason and desire. Treating the rule of law, in this way, as the rule of men as well raises the
possibility that the question of political authority, at the heart of debates about constitutionalism,
is at the same time a question of political authorship and accountability — accountability to, and
of, both a regime and a people.

Most contemporary constitutional theorists answer the ontological question by treating a

constitution as the source of the rule of law and also as in itself a rule of law, the fundamental
law of the land, so to speak. But that only takes us so far. For there is substantial disagreement
about exactly what sort of fundamental law a constitution is and about what gives it its normative
force. Legal positivists who follow H.L.A. Hart’s influential Concept of Law tend to treat the
constitution as a rule of recognition, as, in other words, a socio-cultural fact, binding insofar as it
has been accepted. Deliberative democrats, following Immanuel Kant, tend to treat it, by
contrast, as a transcendent rule of right reason, regulative and binding as such. A third set of
theorists differs yet again, treating it instead as the intentional production of a several or
collective political will, binding because of its intentionality. Despite their differences, all three
approaches share two commitments: First, they insist that a choice must be made among their
respective positions. Because they take fact, reason, and will to belong to separate and opposing
justificatory and normative ontologies, a constitution must be understood existentially or
rationally or volitionally, but not as all three together. Second, albeit in different ways, they take
the constitution to stand opposed to and to set limits on power, both governmental power and the
power of the people. This Article challenges these shared commitments by turning to the
writings of Aristotle. This may seem to be an odd choice for two reasons. For one, it is not
obvious what a pre-modern like Aristotle might have to say to modern and contemporary
constitutional theorists or why they should care. Second, even if it makes sense to treat Aristotle
as an interlocutor for modern times, it is not obvious how Aristotle poses a challenge to the
dominant contemporary approaches. On the contrary, he is often viewed as an authority for the
commitments shared by those approaches, especially for the opposition they assume between law
and power. I return very briefly to the first challenge at the end of this Article. The bulk of this
Article focuses on the substantive issue, arguing that while there are good reasons for reading
Aristotle as a champion of the rule of law against power, he also appreciates the role of power in
establishing law, the rule of law, and, indeed, the constitution. Accordingly, he distinguishes
categorically between political or rotational rule, on the one hand, and mastery, on the other,
calling mastery (or absolute rule) inimical to a political life. He is on the whole hostile to rule by
the people, and particularly hostile to the sort of freedom as license he takes most forms of
democracy to encourage. Indeed, Aristotle treats the rule of law as a constituent feature of any
regime worthy of being called a regime. In Aristotle’s view, however, law, too, must be
moderated, for laws also, and all too often, aim at domination. It is for this reason that he insists,
following in the footsteps of Socrates, that unjust laws must be disobeyed. Insofar as he takes the
justice of laws to depend on the individual practice of good judgment, Aristotle sees the rule of
men, via their good judgment, as moderating excesses in the sovereignty of law. Aristotle, in
other words, holds both that the rule of law, and especially, as we will see, the constitution,
moderates the rule of men, and also that the rule of men moderates the rule of law, including the
constitution. This dual set of commitments is possible because, as I demonstrate in the Parts that
follow, Aristotle understands a constitution as both a rule of recognition and as a rule of reason.
And he takes a constitution to be binding because it is a product of citizen acquiescence and
reason and also because of its intentional design. In these ways, Aristotle’s constitutionalism
brings together the three disjunctive ontological and normative answers offered by contemporary
theorists, but with a twist. Through Aristotle’s treatment of the figure of Theramenes in his
Constitution of the Athenians, Aristotle understands social acceptance of, or citizen acquiescence
to, a constitution not as a fact, but as an active and everyday practice on the part of citizens,
informed by reason. And, naming the reason proper to politics practical wisdom, or phronesis, he
takes reason to be regulative and, indeed, imperative, not because it is transcendent or apolitical
but because it is situation sensitive and responsive to context. Through Aristotle’s criticisms of
the Spartan constitution in the Politics and through his celebration of the ancestral constitution
and the Constitution of the Five Thousand in the Constitution of the Athenians, the intentionality
Aristotle attributes to constitutions lies not in the will of a citizenry, severally or collectively, but
in the constitution itself. Specifically, I argue that Aristotle understands good constitutions to
intend the freedom of their citizens, freedom understood not as license but as self-regulation. I
show how these adjustments to contemporary constitutional theory bridge the tension between
constitutionalism and democracy at the heart of many contemporary debates. They do so by
orienting discussions about constitutionalism away from origin stories, founding moments, and
authorship of a past, and toward constitution as an ongoing ethical, social, and political practice
on the part of the same citizens that constitution governs, with a view to the future. The key to
this bridging and to Aristotelian constitutionalism more generally is Aristotle’s unique account of
virtue — as itself a kind of power — that is at the heart of a political life. Aristotle’s
understanding of virtue allows him to treat men and laws and, indeed, constitutions as sites of
power, which is to say as limiting and establishing power at the same time. Hannah Arendt owes
much to Aristotle when she claims that "only power arrests power without destroying it, that is to
say, without putting impotence in place of power."

I have argued that it is the everyday practice of law on the part of a polity’s phronetic citizens
that makes (or unmakes) its laws and that lawfulness is guided by a polity’s proper constitution
even as laws and lawfulness — themselves understood as practices of good citizenship —
preserve that constitution. The rule of (good) law, so understood, dependent on the rule of (good)
men, does not contradict popular sovereignty but, instead, promotes a political and citizen-
oriented practice of law that, while guided by the constitution, also founds and refounds that
constitution daily. Insisting that both the rule of law and the rule of men take their guidance from
the constitution does not contradict popular sovereignty either, because the authority of the
constitution, as the way of life of the people, lies in citizens’ participating as makers and subjects
of their own law. This politically-rich circularity affiliates the sovereignty of law with popular
sovereignty, both being practices of citizenship regulated by the constitutions that those citizens
authorize. So understood, the constitution disciplines the power of the people, the power of those
who govern, and the power of law itself. But it does so not by standing over and against a
citizenry, or its rulers, or the polity, for the source of its disciplinary power does not lie outside
those it regulates. Instead, the constitution is itself a practice of self-discipline. Aristotle
reconciles popular sovereignty with the rule of law by means of the dependence of both on
virtue, specifically, as we have seen, the virtue of moderation. It is the individual and
constitutional practice of moderation that is responsible for stemming the tendencies to overreach
on the part of rulers, citizens, and polities. Most important, perhaps, is that moderation preserves
or saves practical wisdom, whose imperative nature generates the laws that guide and command
citizens and rulers in much the same way that the rule of law guides and commands a political
life. If there is this direct relation between practical wisdom and law and practical wisdom gets
its bearing from moral virtue, then the political analog of moral virtue, Aristotle seems to
suggest, is the constitution. Just as virtue is comprised of sedimented habits, with no precise and
identifiable source, that are generated by actions and that themselves generate but do not fully
determine activity, so too is a constitution, as Aristotle’s endorsement of the ancestral
constitution implies, a product of long and unvarying habit, a "way of life of a people," generated
by a series of actions that have, by repetition and acquiescence, acquired the force of law. If
virtue "preserves" practical wisdom and so produces (even as it is guided by) good judgment
and, thereby, lawfulness, the polity’s proper constitution, by introducing predictability, pattern,
and order into individual practices, safeguards and preserves lawfulness to produce (even as it is
guided by) the common judgment of the community — its common sense or consensus.
Deliberative democrats tend to treat the constitution as a rule of right reason and to reify and
freeze it by locating it out of time, in an invariable realm that transcends that of human affairs.
Positivists similarly reify the constitution by treating it as a "dead" rule for the future, a fact of
social acceptance. In contrast, Aristotle’s constitutionalism refers not to time immemorial nor to
a specific founding moment, but rather to a way of life, whose origin is in the past but whose
force lies in the everyday social, political, and ethical practices of its citizens. Aristotle’s
constitution, like the practices that produce and preserve it, is changeable, albeit in the form of
the incrementalism and gradualism associated with changes in habit. In this way, it safeguards
the stability of a polity and is also able to recognize and accommodate the variability of human
affairs. Aristotle’s constitutionalism is able to do all these things because he treats a constitution
as a telos and, as such, as the way of life of a people in a regime. The tense of telos is futural,
intentional, and aspirational. Its focus, however, is not on the future but on the present.
Aristotle’s account of the telos of human beings, living well and happily (eudaimonia), for
example, concerns the practice of virtuous activities in the ongoing present of an individual life.
His consideration of the eudaimonic constitution does the same, attending to the ongoing
practices and institutions in existing regimes. If the Nicomachean Ethics investigates excellence
so that human beings may become good,thePolitics and the Constitution of the Athenians
investigate how Athens can attain its constitutional telos and become a good regime, which is to
say, one that is both democratic and oligarchic and neither, a regime Aristotle, not surprisingly,
simply calls, in the Politics, the constitutional polity or politeia. Is Aristotle’s constitutional
polity beyond the liberal imagination? Insofar as Aristotle’s politeia differs from modern liberal
democracies with, in particular, their theoretical commitment to a fundamental separation of
ethics from politics, the answer is yes. When, however, "liberal" is understood in its original
relation to liberality and liberty and hence to generosity and freedom — etymological
connections present in the Greek eleutheriotes (liberality) and eleutheria (liberty) as well — then
thinking critically about modern constitutionalism demands the exercise of a liberal, which is to
say, a generous and free, imagination. Drawing on a past to open possibilities for a future, a
generous and free imagination recognizes the importance of translating old to new in light of
both the signal discontinuities and the important continuities between past and present.
Imagination, so understood, distinguishes a practice of history, critical to modernity, which
Aristotle, in the Poetics, calls poetry.