What happens when the Rule of Law and the Common Good conflict, in that strictly upholding the letter of the law causes a greater harm rather than prevent it, as would be the legitimate aim of the Rule of Law? This question is already addressed with the concept of “necessity” in the Common Law, and to various degrees in different jurisdictions, via what is often termed the “Necessity Defense.”
But this defense of the violation of the strict reading of the law is itself based in the Rule of Law and necessarily limited and generally requiring that the violation of the law, in order to be justified as necessary, must be the alternative to a worse violation of the law.
The same logic could be extended to an official or a member of the military who may need to take actions that exceed their orders or similar situations where failure to take such actions due to exigent circumstances.
But overall these are exception to the rule—not a refutation of the rule itself. If going beyond the limitations of the letter of the law is considered necessary, then it becomes incumbent on the person or persons who did so to nonetheless submit themselves to the law or authorities for judgement. By doing so, one does not elevate themselves above the rules.
What this does not do is justify ignoring the Rule of Law over some vague and amorphous “Common Good”. This is to relegate necessity of diverging from the letter of the law in order to protect the Rule of Law, into a false-dilemma fallacy that relegates the law as merely a suggestion to be superseded according to the whims of whomever can get away with it, or at least try to. An example of this is an attempt to invoke Thomas Jefferson to defend putting the “Common Good” over legal limitations and restrictions, with the specific example being the prosecution of Aaron Burr, who nonetheless was found innocent of Treason because the law, in fact, did prevail over Jefferson’s self-serving justification for his own actions.
There is a difference between exceeding the authorization of law due to exigent and dire circumstances in wartime or organized armed revolt, and using the purported “common good” as an excuse to rule by arbitrarily and/or capriciously to subordinate the law itself. Such excuses are the hallmark of the disingenuous Left who justify modern Cultural Marxist ideas of “society justice” by invoking St. Thomas Aquinas.
This attempt to invoke a false dilemma fallacy of “common good” vs. the Rule of Law is often combined with a Motte & Bailey defense. The invocation of exigent circumstances or threats so dire as to necessitate acting beyond the scope of law or even against it in limited circumstances is the Motte. The Bailey, however, is a limitless suspension of the law, if not abolishment of the law itself, for some broader concept of a “greater good”, with claims of immanent doom being the excuse to simply do away with the old and immanentize the path to the new and higher law, whatever that may be. Arguments that we are right now in a situation that requires total abandonment of the law to stave off something not only worse but immanent is based in manipulative hyperbole and emotional manipulation.
There is a crucial difference between taking extraordinary steps counter to the strict letter of the law in service thereto, and overturning the law wholesale for the greater good: The former is self-limiting and keeps the rules above the rules, while the later elevates the rulers above the rules. And no, elevating some vague idea like the Volonté Générale, “We the People”, or even some oracular basis is not a limitation or higher power that must be submitted to.
When there are no rules protecting others from you, then there is no rule protecting you from others. Using the justification that “there are no rules” as justification for tearing down the rules in order to impose your purportedly “greater” good belies that in fact there are still rules there to tear down.
Those who consider themselves to be untouchable or the new masters can not be limited to any good intention in service to some greater good. Robespierre thought along similar lines during the evening of 8 Thermidor II, and that feeling of untouchable ruler above the law didn’t serve him very well the next day.
