I will resume (and conclude) my series on Jean-Jacques Rousseau and the paradox of politics next week. In the meantime, I want to share some thoughts on the rule of law. In my recent talk on Friday, 21 November, at the St Thomas University Law School in Minneapolis, I identified two deep puzzles about the “rule of law” ideal. One of my puzzles is historical; the other, theoretical or definitional.

Let’s begin with my historical puzzle first by comparing and contasting the Magna Carta (1215) with the French Declaration of the Rights of Man and the Citizen (1789). By all accounts, the Magna Carta was extorted by force. King John agreed to the Great Charter at the point of a dagger! (See, for example, the artistic rendering of the signing of the Magna Carta below.)

The French Declaration of Rights, by contrast, was adopted democratically when the Three Estates met in Paris in 1789. Yet unlike the Magna Carta, the ill-fated French Declaration of Rights proved to be an ineffectual legal document, one that failed to curb the violence of the Reign of Terror (1792-94) or prevent Napoleon’s consolidation of power in 1799.

In short, why did the “MAGNA CARTA STRATEGY” of carefully limiting royal power on such mundane matters as weights and measures succeed while the “FRENCH DECLARATION STRATEGY” of identifying supposedly-inviolable and fundamental individual rights fail? (To be continued …)