It’s a phrase we hear often, isn't it? "A government of laws, not of men." John Adams himself championed it, and it’s become a cornerstone of how we think about good governance. The idea is simple, really: in a just society, it's the established laws, not the whims of individuals, that should guide our lives. This principle suggests that laws are objective, consistent, and reasoned, providing a predictable framework for everyone. When we look to the law, we expect to find clear answers, a pre-existing normative structure that ensures decisions are fair and not arbitrary.
But what if this neat picture isn't the whole story? What if the very idea of law as a fixed set of pre-determined norms misses something crucial about how power actually works and how societies are truly governed?
This is where thinkers like Carl Schmitt come into the conversation, offering a rather provocative challenge to this liberal, positivist view of law. Schmitt believed that by focusing solely on norms, we misunderstand the essence of law. He argued that this approach doesn't necessarily bring objectivity; instead, it can render law a hollow shell, reducing all state actions to mere competencies and trapping life within rigid frameworks. For Schmitt, law isn't found in abstract rules waiting to be discovered. Instead, its true nature is revealed in the concrete act of decision-making.
He famously suggested that the 'exception' can be more revealing than the 'rule.' It's in those moments of crisis, when the established norms might not fit, that the real character of authority and the will behind the law come to light. Law, in this view, is concretized not in a norm, but in a judgment. It’s the decision, the act of choosing and acting, that truly constitutes law. This perspective shifts the focus from a static body of rules to the dynamic, often political, will of those who decide.
This debate isn't just an academic exercise confined to dusty books. It echoes in contemporary discussions, particularly within American constitutional scholarship. Here, too, we see a tension between viewing the Constitution as a set of fixed, positive norms and understanding it as the continuous, living decision of the people. The latter view suggests that the Constitution is less about abstract rules and more about the ongoing will and choices of the populace, shaping and reshaping the legal landscape.
So, when we ask what makes a government legitimate, perhaps we need to look beyond just the existence of laws. We might need to consider the will that enacts them, the decisions that give them life, and the capacity to act decisively when circumstances demand it. It’s a more complex, perhaps less comfortable, but ultimately more realistic understanding of how governance truly functions.
