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… is from page 118 of University of Arizona philosopher Gerald Gaus’s superb paper “It Can’t Be Rational All the Way Down,” which is a chapter in the new collection, edited by Peter Boettke and Solomon Stein, Buchanan’s Tensions: Reexamining the Political Economy and Philosophy of James M. Buchanan [2] (link added):
[O]utside of, and in an important sense prior to, political and legal order are moral orders, including the general moral order of large-scale civil society. Overlooking the informal moral order underlying the legal-constitutional order, T.H. Green (1889) [3] insisted, leads to the false conclusion that the state, not the preexisting moral order, is the fountainhead of individual rights. Moral orders are not simply the reflection or creation of the political, but are independent sources of moral rights and claims.
DBx: The fundamental flaw in the doctrine of the divine right of kings is not the belief that the monarch, rather than the democratically constituted state, is the source of all rights and order and, hence, is above the law. Instead, the fundamental flaw in this old doctrine is the superstition that the state is the source of all rights and order and, hence, that the state is above the law. In reality, the state – which, of course, and like monarchs, creates legislation – is no more the creator of law when it is constituted democratically than when it is constituted in any other fashion.