scaVold and through the parliamentary imposition of a new oath of accession
on his successors.
This perspective on the rule of law as inherently political rather than
formal presents a puzzle to contemporary constitutionalists. On the one
hand, modern constitutionalism is a system constructed so as not to be
fully congenial to majority control. As Tocqueville recognized, the rule
of law might easily become rulebybad laws in the sense of their failure to
protect democratic political rights from majority tyranny. On the other, the
rule of law may only come to have prescriptive force if the most numerous or
powerful politically believe the law to be on their side, or once again as
Stephen Holmes puts it, conversely, ‘‘when the law is the preferred tool of
the powerful’’ (Maravall and Przeworski 2003 , 3 ). This political model under-
stands the rule of law not as Aristotle’s rule of reason in a normative sense,
which it deems ‘‘aWgment of the imagination of jurists’’ ( 2003 , 1 ), but rather
as a matter of strategic bargaining over the distribution of power. In this they
forgo the Aristotlean and essentialist question of ‘‘what is the rule of law?’’
and ask instead the modernist empiricist question, ‘‘why do people obey
laws?’’ or ‘‘why will the powerful choose to restrict themselves by law?’’ It is a
thoroughly modern perspective on law and one which has led thinkers such
as Robert Barros to consider whether standard interpretations of authoritar-
ian regimes, such as that of the Chilean dictator General Augusto Pinochet,
might have overlooked the extent to which ‘‘even under a highly repressive
dictatorship a form of rule of law is possible’’ (Barros 2003 , 215 ).
4 Constitutionalism within Game
Theoretic and Rational Choice
Accounts
.........................................................................................................................................................................................
As F. M. Cornford has noted, the Greeks did not consider the larger universe as
a law-like ‘‘machine,’’ operating according to principles of cause and eVect
(Cornford 1931 , 21 , 26 ). Modern rule of law as the politics of power accepts a
psychology of causal eYcacy (rather than a strict causal logic), which as Hume
constitutionalism and the rule of law 325