B1b Consecration of the Law and Demotion of the Executive
The Idea of the Rule of Law The democ ratic ideal derives from a conception of society as a purely human creation. This was taken to imply that the sovereignty of the people had to be extended by making the people its own legislator. In the eighteenth century, the democ ratic ideal came to be conjoined with a veritable sacralization of the law. The powers of government, it was believed, must possess a generality that is both procedural and substan tial, in accordance with a wholly novel approach to the management of human affairs. T here was a practical and rationalizing purpose in this, namely, simplifying and stabilizing the administration of justice by imposing a uniform order on the existing jumble of legally sanctioned customs. But the pol itical reformers of the period had something much more ambitious in mind. Their aim was to revolutionize public action, not only by ridding it of its arbitrary aspects, but also, and more funda mentally, by desubjectivizing it, as it were, by substituting an objective form of authority for the w ill of a single person. Cesare Beccaria, the great philosopher of law of the Enlightenment, brilliantly expounded the new conception of the role of law in a work that was to have a lasting influence, Dei delitti e delle pene [On Crimes and Punishments, 1764].1 Its point of departure was classically liberal.
Brought to you by | Boston University Libraries Authenticated Download Date | 11/30/19 6:42 PM
