political morality in addition to previous rules, are a required part of providing
the rule of law with its best explanation and justiWcation.
Dworkin’s emphasis on rationality and on the rule of law as rule of
reason is reminiscent of Aristotle, the thinker most often considered as its
ancient originator, and whose understanding of the rule of law also rests on the
judging agent. However, for Aristotle, such agents are politically circumscribed
much more restrictively, consisting of the citizen or citizens most capable of
‘‘right reason’’ and syllogism in contrast to those driven by physical and
political appetites. Aristotle writes in On Rhetoricof settling conXicts of
passions through the application of general rules (RhetoricI, 1354 a, 1366 b).
However, his perhaps more directly relevant vision of the rule of law is to be
found inPoliticsIII ( 1286 a, 1287 a, 1287 b) and IV ( 1295 a– 1296 b) and in the
Nichomachean Ethics(V, 1134 b 30 – 5 , 1137 b). The implications for an under-
standing of the rule of law drawn from such passages are, as more than one
commentator has noted, various and conXicting. What is clear is that Aristotle
imbeds the praxis of the rule of law in the judgment of a moderate middle class
of settled, virtuous ethical character, exceptional intellect, and constant dispos-
ition to reason syllogistically and to act fairly. Aristotle contextually nests the
rule of law in a thick political and ethical setting of the ‘‘practical best’’
community. Of course, it is commonly noted that Aristotle’s understanding
of rule of law is compatible with ancient slavery and could be seen as compatible
even with the modern ‘‘dual state’’ in its exclusion of parts of the state’s
population from the umbrella of the legal order (Shklar 1998 , 22 ) This contrasts
sharply with the principled generality of contemporary legal theories of
thinkers such as Fuller or Dworkin, for whom also the judging agent is delib-
erately abstracted from the political context within which the law was generated
and, as Shklar noted, for whom the actualpoliticalcontest that has produced the
cases for decision remains purposely unexamined (Shklar 1998 , 34 ).
2 Rule of Law and Constitutional
Limitation
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The rule of law as the rule of reason is often contrasted with a second, distinct
archetype that emphasizes institutional restraints on power holders, or forms
constitutionalism and the rule of law 321