Nomocratic versus Teleocratic

In 1975, Michael Oakeshott’s On Human Conduct [see yesterday’s Daily Quiddity entry of this blog] distinguished between ‘nomocratic’ and ‘teleocratic’ regimes. The latter, he claimed, seek to impose an abstract vision of human flourishing onto contingent historical circumstances. Teleocratic regimes take their orientation from a particular philosophical goal, or telos, and slash through the dense web of custom and tradition in order to implement it. In teleocratic regimes, the law shapes history.

Nomocratic regimes are more modest. Rather than attempting to alter their societies, these regimes seek to protect the traditional liberties and social norms of their citizens, their nomos. Whereas the teleocratic regime is universal and philosophic, its nomocratic counterpart is local and historical. One might point, for example, to the early-modern British Common Lawyers, who (as J.G.A. Pocock has shown) sought to erect a legal order upon precedent and prescription. In nomocratic regimes, then, the law reflects history.

Oakeshott saw the teleocratic regime as uniquely modern. Yet he said little about how such a regime might evolve from a nomocratic one, and was vague about where, historically, the border between them lay.

static.uni-graz.at/.../Docservice/20140227_History_and_the_Law.pdf

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Nomocracy [Wikipedia redirects this

term to its article on “Rule of Law”]

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.  The phrase can be traced back to 16th century England, and it was popularized in the 19th century by British jurist A. V. Dicey.  The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".

Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.

History

Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey, development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India  and Rome.

In the West, the ancient Greeks initially regarded the best form of government as rule by the best men.  Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.  Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state."  More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.  In other words, Aristotle advocated the rule of law:

It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.

According to the Roman statesman Cicero, "We are all servants of the laws in order that we may be free."  During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.

In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law.  In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.

There has recently been an effort to reevaluate the influence of the Bible on Western constitutional law. In the Old Testament, there was some language in Deuteronomy imposing restrictions on the Jewish king, regarding such things as how many wives he could have, and how many horses he could own for his personal use. According to Professor Bernard M. Levinson, "This legislation was so utopian in its own time that it seems never to have been implemented...."  The Deuteronomic social vision may have influenced opponents of the divine right of kings, including Bishop John Ponet in sixteenth-century England.

http://en.wikipedia.org/wiki/Rule_of_law

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Teleological

Variant of teleology
noun

1. the study of final causes
2. the fact or quality of being directed toward a definite end or of having an ultimate purpose, esp. as attributed to natural processes
3.  
1. a belief, as that of vitalism, that natural phenomena are determined not only by mechanical causes but by an overall design or purpose in nature
2. the study of evidence for this belief
4. Ethics:  the evaluation of conduct, as in utilitarianism, in relation to the end or ends it serves

          http://www.yourdictionary.com/teleological

 

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Summary by the Blog Author

Thus a teleological approach to government is one for which the institutions and laws are geared toward the results achieved and ends served.  This teleological bent is different from the rule of law approach (nomological) in that the head of state probably asserts sovereign immunity and the actions of the government are judged by whether the ends are reached rather than by whether the agents followed the law as subordinates to it.