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Copyright (c) 2004 University of San Francisco School of Law
University of San Francisco Law Review

ARTICLE: The Common Law and the Religious Foundations of the Rule of Law Before Casey

Spring, 2004

38 U.S.F. L. Rev. 499


By Craig A. Stern*


WHATEVER IT MAY mean, 2 the rule of law commands apparently universal respect - or at least receives apparently universal lip-service - among civil governments. 3 Classically, the rule of law has been counterpoised to the rule of man, a rule held to be much inferior. Man is willful, apt to help friends and to harm foes even when obliged to judge fairly. Accordingly, the standard law dictionary gives these two pertinent definitions of "rule of law": "2. The supremacy of regular as opposed to arbitrary power ... . - Also termed supremacy of law. 3. The doctrine that every person is subject to the ordinary law within the jurisdiction ... ." 4 The rule of law is government according to rules. 5 It requires that those who govern not only govern by law, but also see to it that they themselves are governed by law.

Necessarily, the idea that the rule of law is preferable to the rule of man is one founded upon presuppositions regarding civil justice, authority, man, and what is good. Ultimately, the system of such presuppositions is a religious system. Delve deeply enough, and the ideal of the rule of law rests upon the most fundamental beliefs. 6 It rests upon fundamental beliefs as a concept and it rests upon fundamental beliefs as a practice. This paper attempts to limn the religious foundations of the rule of law, and especially the rule of law embraced within the common law, 7
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