There’s a Latin phrase that has entered into the modern lexicon of legal lore.  It’s sometimes framed in the form of a question: Lex rex or rex lex?  A loose English translation might be, “Is the law king or is the king the law?”  In short, does the rule of law stand above even the most powerful people of society, or do the most powerful people in society stand above the law?

One of the long-standing principles of legal theory in the United States of America was what has come to be known as the “rule of law.”  In short, no one is above the law, not kings, not presidents, not even the lawmakers themselves.  All are subject to the rule of (an ideally just and well-crafted) law.

Far more common in the history of the world has been “rex lex,” the idea that whoever holds the power not only makes the laws but also stands above them.  That is to say, the king, the powerful, the legislators, are the creators of and therefore not subject to the laws of the land.  They only enact and enforce them when it is to their personal or social advantage.

Of course, even in the US, as the recent Hunter Bidon pardon illustrates, the temptation to employ a “rex lex” attitude is unfortunately alive and well.  To provide another recent example, when Roe v. Wade was overturned by the ruling in the Dobbs v. Jackson case, several abortion laws put in place before the 1973 Roe v. Wade ruling were presumably supposed to be reinstated and enforced.  As a result, some state attorney generals in certain states with anti-abortion—pro-life is a better way to frame this—laws stated they will simply not enforce these laws.

In addition, no less than eighty-three prosecutors from states across the nation issued a joint statement pledging to undercut any state laws criminalizing abortion, pledging to “stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions.”  They continued: “As such, we decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”

Notice the use of language, “reproductive health” and no mention of unborn children losing their lives here.  The statement reflects a moral code that places individual choice above taking responsibility for demanding sexual freedom that sometimes results in an unwanted child.

In the past, if you didn’t like a law, you tried to argue why that law was bad, and perhaps tried to get elected as a legislator so that you could change the law.  Now, it seems, legal activism has become a law unto itself, enacting legal action to prevent the enforcement of laws that were legally and properly created.  In the past, the judicial branch was only meant to enforce laws, not to make them or to ignore them.  They didn’t have to like or agree with the laws, but as lawyers and judges, they were put into positions of power to fairly and properly enforce them, not to overrule or ignore them.

When the governor of Florida suspended the attorney general for refusing to uphold the rule of law (because he disagreed with the law), this same attorney general invoked a lawsuit to retain his job as a duly elected official.  It’s rich irony indeed when an attorney invokes the rule of law in an attempt to defend and maintain his refusal to uphold the rule of law—and all this because he disagrees with the law.  “Rex lex” or “lex rex?”  Which is it?

Some justify this on the grounds that an old law is no longer a relevant law.  Laws must be updated with the changing times.  There’s some truth to this, of course.  It would be foolish to retain laws concerning the proper handling of horse-drawn buggies on New York city streets, for example, in an age of autos and buses.

At the same time, suggesting that foundational moral principles like, “You shall not kill” require major revision is to suggest that these things are nothing more than culturally relative ideals.  Our age has come of age.  We know better than our unenlightened ancestors who were forced to keep and raise their “products of conception,” even if they were unexpected and unwanted.  This is what progress is all about, after all.  But is this moral progress or moral regress?

All of this illustrates that there are (at least) two fundamentally different worldviews standing behind each perspective, views that have sweeping implications for what it means to be human and the significance and source of the law in society.

Is the codification of moral laws grounded in the unchanging character of God as revealed in Scripture, or are they grounded in the changing tides of human moral reasoning through the passage of time?  If the latter, then “rex lex” not only makes sense, it is the only logical option.  Whoever is in power lately determines right and wrong for everyone under their rule.  Might is right.

If, however, God stands far above all rule and authority and power and dominion (Ephesians 1:21), then “lex rex,” the moral law is king, because that law is founded upon and grounded in who and what He is, the unrivaled Sovereign Almighty King who is holy, righteous, and good.  As such, His might, and His might alone, is right, for He will “judge the world with righteousness, and the peoples with equity” (Psalm 98:9).