America’s rule of law is not working well because many American lawyers confound their rule of law with common law and with common law methods. They overlook the contribution of good legislation to good government. They fixate on judges, judge-made law and procedure. America’s founders, in particular, John Adams and Thomas Jefferson, did not. They were not entranced by common law and by common law methods. This chapter shows how in the first few years of American independence, Adams popularized the term “government of laws” and how Jefferson drafted statutes for a government of laws. Neither of them assigned common law or common law methods a leading, let alone the preeminent role in governing assumed today. Instead, they looked for a government of laws that anticipated a rule-of-law state. They looked for a path that would lead to good government and to liberty in law.
Building a Government of Laws: Adams and Jefferson 1776–1779, in Legal Doctrines of the Rule of Law and of the Legal State (James Silkenat, et al., eds., (38 Ius Gentium: Comparative Perspectives on Law and Justice 267, 2014)