Frederick Schauer

Legislatures as Rule-Followers

Cambridge University Press


It is the signal achievement of Magna Carta to have established that even the king is subject to the law. Although a now-scorned account of law sees it as consisting in the commands from sovereign to subject, after Magna Carta it is commonplace that the sovereign stands not above the law, but rather as part of it and under it. And now that the notion of a unitary sovereign has in most societies yielded to a more complex understanding of the role and status of government, the legacy of Magna Carta can be appreciated, in part, as the widely accepted proposition that no part of government – neither legislature nor executive nor judiciary nor bureaucracy nor military – is above the law.

Yet although the proposition that government is not above the law will attract little dissent, the question of just what it means to say that government is not above the law is considerably more complex. Least controversially, the view that government is not above the law means that individuals who hold government positions are as subject as any other citizen to the laws of general application. Principles of diplomatic immunity may allow ambassadors to park with impunity in the vicinity of United Nations headquarters, but there exists no parallel principle of general governmental immunity that serves to immunize, except under rare circumstances, the actions of governmental officials from the ordinary application of ordinary law.


Frederick Schauer, Legislatures as Rule-Followers, in Richard W. Bauman & Tsvi Kahana The Least Examined Branch: The Role of Legislatures in the Constitutional State, Cambridge University Press, 468–479 (2006).

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