January 14, 2006

More freedom but not more right or more rule

I wasn't as knocked over by the out-of-place reflexive as Geoff Pullum was, but I did notice something in President Bush's news conference yesterday with Angela Merkel. In two places, he used the phrase "rule of law" without an determiner:

We share common values based upon human rights and human decency and rule of law; freedom to worship and freedom to speak, freedom to write what you want to write.

I think the best way for the court system to proceed is through our military tribunals, which is now being adjudicated in our courts of law to determine whether or not this is appropriate path for a country that bases itself on rule of law, to adjudicate those held at Guantanamo.

This is not the first time he's made this choice. For example, on 11/04/2005, in remarks headlined "President Bush Meets with President Kirchner of Argentina", he said:

Argentina and the United States have a lot in common. We both believe in rule of law.

Sometimes, however, he (or his speechwriter) says "the rule of law" in similar contexts:

As two strong, diverse democracies, we share a commitment to the success of multi-ethnic democracy, individual liberty, and the rule of law.

My initial reaction was that the determiner is optional with freedom, but required with right and strongly preferred with rule:

I believe in freedom of speech.
??I believe in rule of law.
* I believe in right to bear arms.

Web search supports the notion that freedom is different from the other two:

  MSN Yahoo Google
believe in the freedom of
believe in freedom of
the/0 ratio
believe in the rule of
believe in rule of
the/0 ratio
believe in the right to
believe in right to
the/0 ratio

However, the specific phrase makes a difference: "right to life" occurs an order of magnitude more often without an article than "right to bear arms" does. In fact, it seems that the article is dropped from "the right to life" much more often, relatively speaking, than from "the rule of law".

  MSN Yahoo Google
believe in the rule of law
believe in rule of law
the/0 ratio
believe in the right to life
believe in right to life
the/0 ratio
believe in the right to bear arms
believe in right to bear arms
the/0 ratio

"You have right to remain silent" sounds like my Russian grandfather, and indeed the web instances of that phrase that I checked seemed either to be typos or associated with writers from places like Ukraine.

The media sometimes use "rule of law" without an article:

(Salem Statesman Journal) (link) Respect for rule of law and oversight of those in power distinguish our democracy from a dictatorship.

but the article seems to be commoner (except in headlines):

(New York Times) (link) Speaking calmly, if with a continued hint of nervousness, Judge Alito provided no substantive new insights into his judicial philosophy or background as he tried to cast himself as open-minded and dedicated to the proposition that the rule of law should trump personal views and public opinion.

If there were a categorical difference between freedom on one hand, as opposed to rule and right on the other, we could attribute it to the fact that freedom is often used as a mass noun:

I just want some freedom.
They want more freedom.

whereas rule and right are not:

??I just want some rule.
??They want more rule.

However, it's clear that some native speakers think that it's fine to use "rule of law" or "right to life" without an article. The more I read the examples, the more plausible they sound to me as well. I suppose that these phrases are on the way to becoming conventional names for belief systems -- intellectual brand names, so to speak -- so that their use without articles follows the pattern of phrases like "I believe in verificationism" or "we share a commitment to democracy".

One historical note on "rule of law": the OED suggests that this phrase began (and also continues in lawyers' use) as a way of referring to specific legal principles, rather than as a term for the general idea that "no person ..., no matter how high or powerful, is above the law, and no person ... is beneath the law" (as Judge Alito put in in his confirmation hearings).

1765 BLACKSTONE Comm. I. 70 Whenever a standing rule of law..hath been wantonly broke in upon by statutes or new resolutions.

1827 JARMAN Powell's Devises (ed. 3) II. 89 This case was considered to have fixed, beyond controversy, the rule of law upon this subject.

1861 MAINE Anc. Law ii. (1876) 26, I employ the expression ‘Legal Fiction’ to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration.

1994 (title of Act) Sale of Goods (Amendment) Act: An Act to abolish the rule of law relating to the sale of goods in market overt.

[gloss for maxim] 2. a. Law. A proposition (ostensibly) expressing a general rule of law, or of equity

The earliest citation for "the rule of law" in the sense of "political supremacy of an independent legal system" is from 1981:

1981 Times 10 Feb. 9/3 Geriatric judges with 19th century social and political prejudices only bring the rule of law into disrepute.

1988 Representations Autumn 117 Pudd'nhead Wilson translates mob opinion into the rule of law at the conclusion of Twain's novel.

But I expect that Ben Zimmer will find that Horace Greeley, if not Benjamin Franklin, used this term in its contemporary sense.

[Update: Ben writes:

I can't take it back to Greeley or Franklin, but the generalized sense of "rule of law" was definitely in common use by the fall of 1914, shortly after the outbreak of World War I. Both American and British scholars used the phrase in their justifications for war against the Central Powers.

"The Meaning of the War", New York Times, Sep. 23, 1914, p. 8
By David Starr Jordan, Former President of Leland Stanford University.
The invasion of Belgium changed the whole face of affairs. As by a lightning flash the issue was made plain: the issue of the sacredness of law; the rule of the soldier or the rule of the citizen; the rule of fear or the rule of law. ... However devious her diplomacy in the past, Britain stands today for the rule of law.
Reprinted in The New York Times Current History of the European War, Vol. 1

"Oxford Historians Defend England," New York Times, Oct. 14, 1914, p. 4
"The war in which England is now engaged with Germany is fundamentally a war between two different principles — that of raison d'état, and that of the rule of law."
Quoting Why We Are At War: Great Britain's Case


[Update: Margaret Marks points out, in a post on her Transblawg, that the OED actually has a specific entry for "rule of law", which I carelessly missed, and which (uncharacteristically) Ben Zimmer didn't catch me on:

c. rule of law: (a) with a and pl. : a valid legal proposition; (b) with the : a doctrine, deriving from theories of natural law, that in order to control the exercise of arbitrary power, the latter must be subordinated to impartial and well-defined principles of law; (c) with the : spec. in English law, the concept that the day-to-day exercise of executive power must conform to general principles as administered by the ordinary courts.

What's at issue here is b and (especially) c; and for b the earliest citation is

  1883 J. E. C. WELLDON tr. Aristotle's Politics iii. 16. 154 The rule of law then..is preferable to the rule of an individual citizen.

while for c the earliest one is

  1885 A. V. DICEY Law of Constitution v. 172 When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.

It's embarrassing to have missed this.

In any case, both of these uses are explicitly said to require the.

This leaves me with two questions:

First, since the concept was a prominent one in 18th-century political philosophy, why does the phrase not appear until the late 19th century? What phrases were used instead? Where was Whorf for that century and a half?

Second, when did the phrase start being used without the definite article?


Posted by Mark Liberman at January 14, 2006 02:00 PM