Aristotle on Constitutionalism and the Rule of Law

Abstract

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.