2 Evolution of the Principle

1. Antiquity: Aristotle's Politics — government by the best man is the best ideal, but law is "reason free from passion," so the rule of law is the safe second-best in the real world; Roman law's legibus solutus debate (is the prince above the laws? The civilians' answer: the prince pleases the laws by submitting to them — princeps legibus solutus est sed tamen Legibus sealligare dignatur).2. Magna Carta 1215: the first great charter of limits — no taxation without common counsel, no imprisonment save by lawful judgment or the law of the land (clause 39), justice to no man denied or delayed. Medieval constitutionalism institutionalizes "law above the king."3. Seventeenth century: Coke's Dr. Bonham's Case dictum that the common law controls even Acts of Parliament (the seed of judicial review); the Petition of Right 1628 and the settlement of 1688 — parliamentary sovereignty replacing royal absolutism, with the judiciary independent (Act of Settlement 1701).4. Enlightenment: Locke (government by settled standing laws, not extemporary arbitrary decrees); Montesquieu (separation of powers as the security for liberty); the American and French revolutions entrenching law's supremacy in written constitutions; Kant's Rechtstaat (the state as union under laws).5. Nineteenth century — Dicey's classic formulation (1885): discussed below; the high tide of laissez-faire legality.6. Twentieth century — liberalization of the doctrine: the welfare state required…