Imagine a couple—both partners happen to be Catholic—preparing to wed in the fall of 2020. The Catholic church where they would like to marry is in Washington, DC, whose mayor recently ordered that anyone traveling from certain states—those deemed “high risk” due to their COVID-19 case rates—must quarantine for fourteen days upon arrival. Among those high-risk states is Illinois, home to the groom’s family members, who of course want to attend the wedding, so the couple considers getting married at a church in Maryland, which does not (for the time being) require travelers from Illinois to quarantine. Knowing, however, that the quarantine rules in either jurisdiction might change at any time, they decide to wait before settling on a church for the wedding. This also means that they must wait to apply for their marriage license, because it must be granted by the appropriate jurisdiction. There seems to be no urgency to apply, because an internet search reveals that licenses can be obtained within a day or two.
Fast forward to the week before the wedding. The betrothed couple have settled on the Maryland church because there is no end in sight to DC’s quarantine order. Busy with wedding-planning details, as well as the purchase of a new home, the couple has yet to obtain their marriage license. The groom soon discovers, to his great chagrin, that the county offices are closed to the public due to the pandemic and are processing marriage licenses by mail, which, he’s told, takes a month. He asks if they could expedite the process, given his circumstances, but it’s not possible. He calls the neighboring Ann Arundel County courthouse and finds he can leave the application in a drop box at the courthouse; it will be processed within twenty-four hours and will be valid for another twenty-four hours. In Maryland, however, one’s marriage license must be granted by the county where the marriage is to occur, so the groom drops off the completed application on Tuesday, and the couple performs their civil marriage at the courthouse on Thursday. The civil marriage is then canonically convalidated by the Catholic Church at their “real” wedding on Saturday.
This story is not imaginary. It is, in fact, the story of my own wedding. And while everything turned out fine in the end, I tell the story to help illustrate why the rule of law matters. The story shows how departures from the rule of law—regardless of whether the changes are justified or not by an emergency—can significantly disrupt our lives. While the example of my marriage is humorous in hindsight, countless other stories from these past pandemic years (many without happy endings) could be told about the difficulties of making and carrying out plans in any area of life when the relevant “rules of the game” might be changed at any moment.
Will the children be able to attend school in person this week (or month or year) or not? Will my business be allowed to remain open or not, and if not, for how long? Will I lose my job if my company shuts down due to declining revenues? Will I be able to travel to another state or another country three months from now, and what requirements (testing, quarantine, vaccination, etc.) will I need to comply with to do so? Will I be able to hold an in-person gathering, personal or professional, in six months or a year? How many people can I invite, and what requirements will be imposed on the guests? What happens if the requirements unexpectedly become more stringent the week before the scheduled gathering? These questions reflect just a few of the myriad uncertainties that have complicated our lives, frustrated our plans, and caused economic and emotional hardships over the past couple of years. And they show why the rule of law—which is characterized in part by its relative stability and predictability—is so important for human flourishing.
Before considering in greater depth why the rule of law matters, let’s step back for a moment to consider what the term means. The distinction between the “rule of law” and the “rule of men” (and the claim that the rule of law is a crucial feature of a just government) goes back to the ancient Greek philosophers and was reiterated and developed throughout the medieval and modern eras by a variety of thinkers, including Thomas Aquinas and John Locke. Perhaps the most fully developed statement of the formal requirements of the rule of law can be found in Lon Fuller’s The Morality of Law. In chapter 2, Fuller outlines eight characteristics of the rule of law, which I summarize here.