Saturday, August 20, 2011

The Rule of Law

The Rule of Law is a concept that is very important to the legal profession, because it is upon this rock that the legal establishment builds its legitimacy and prestige.

The idea of the Rule of Law is that the law, and the law alone, controls the direction, process and outcomes of the legal system. Therefore, no person, no matter how powerful or influential, is above the law. The courts do not make the law, they merely enforce the law. Based on this logic, the decisions made in courts of law are - or at least should be - impartial, objective, and immutable. Like a prophet is a mouthpiece for God's word, the legal system is a mouthpiece for The Law - and deserves to be respected and honored on this basis. Where the legal system fails to accurately uphold the law - we are told - the legitimacy of the system is questionable.

The real shtick with this line of thinking is that in order for the law to rule, regardless of the people, there needs to be some kind of objective legal rule to follow. The problem, of course, is that there is almost never a clear legal rule to follow. Every legal pronouncement is subject to interpretation. If there were simple, objective legal objects about which everyone agreed, then we wouldn't have so many legal disputes. Furthermore, through the course of these legal disputes people, largely legal professionals, end-up assigning meaning to the law - in other words, they make the law (which did not really exist beforehand). Therefore, it is not enough to say that the law determined the outcome - the law does not have a will, it cannot determine anything (Schlag, 1998) - instead, it is more accurate to say that people infuse their will into the law in order to make it speak, and thereby determine the outcome. Thus, we find behind the proverbial wizard's curtain, not A Law that Rules (Rule of Law), but fragile mortals with their hands on the levers of power.

(For a more in depth discussion about the inherent ambiguity and contingency of all language, including law, read Derrida, Foucault, and Schlag).

Now, people - especially in the legal profession - will interact and exert social pressure on one-another in a way that will tend to enforce a set off norms. These norms can easily be mistaken for the "Rule of Law." But this nexus of social pressure is always driven by people, who make the law in the very act of enforcement. Now, I happen to believe that a certain degree of social coercion and even violence is inevitable, and I would like to be able to preserve the prestige of the legal system in order to be able to use it to make a good living some day. However, I do not want to whitewash the inherent fuzziness and moral ambiguity involved in legal practice. And I certainly don't want to pretend that there is some magical, objective, form-of-law which justifies all the violence and ugliness that has been perpetuated in the name of law and order. The law as mystical objectivity does not exist, instead there is only the law as we people apply it. We have always and will always have the power to shape the law into forms that are either more or less horrible.

Acknowledging that the legal system is fueled by people, (who create and enforce norms) is particularly important for us lawyers to recognize, so that we don't become so enchanted with the Law (Schlag, 1998), that we begin to trivialize the impact of our decisions on people. We need to recognize that the violence of the system is a violence for which we are personally responsible. We cannot disavow the pain we cause others. Hopefully, this understanding will serve to somewhat mitigate the violence. But, at the very least it should prevent us from excusing ourselves. There is no Big Other (Zizek, Lacan). We are alone. When bad things happen it is not the The Law that wills those bads things, it is the people who make and enforce the law, which is all of us.

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