Uncovering the Historical Origins of the Rule of Law

Abstract

The normative ideal that laws, not men, should rule can be attested in many different cultures (Fukuyama, 2011; Tamanaha, 2004). But all aspects — save exception — of the modern notion of the rule of law derive from Europe and the European settler colonies. To discover the historical origins of the rule of law, it is necessary to delve into medieval Europe. As Hintze (1975 [1931]) and Downing (1992) have both argued, the presence of ‘medieval constitutionalism’ sets Europe in the Middle Ages apart from all other cultures (see also Huntington, 1968; Finer, 1997b; Sabetti, 2004). In the words of Jones (2003 [1981], p. xiv), ‘Europe alone managed the politically remarkable feat of curtailing arbitrary power.’