One of the more “respectable” wrinkles on the elaboration of this form of conspiracy theory—grounded in notions of layering of power over the perception of power—for the purpose of hegemony and subordination by one group over all others, comes from the intellectual “left.” Its more well developed form comes in the guise of a critique of its great adversary—the rising intellectual schools of the intellectual “right” which seem to be so much in fashion among a certain segment of the elected American elite. Its inverse, an elaboration of “left” leaning hidden conspiracies is not to be underestimated. But they work along the same lines and for purposes of this essay the left conspiracy theory attack will serve to make the point.
The springboard is Lieven De Cauter’s critique (“The Tyrant as Messiah: Messianism and Antinomianism in the Neoconservative Ideology,” The Brussels Tribunal (Sept. 3, 2006)) of the Project for the New American Century, which in its own words is, “a non-profit educational organization dedicated to a few fundamental propositions: that American leadership is good both for America and for the world; and that such leadership requires military strength, diplomatic energy and commitment to moral principle.” Id. Putting aside the “obsession with the Jews” innuendo in the analysis (troubling in its own right), the analysis suggests that the Project for the New American Century is said to be peopled by some of the most powerful individual in American government and in the American intelligentsia, all of who are “Straussians.” The reference, of course, is to Leo Strauss, credited through his work, of stimulating the so-called neo-conservative movement in current American politics. Following the work of a scholar known for her severely critical work of Leo Strauss (Shadia Drury, The Political Thought of Leo Strauss, Revised Edition. New York: St. Martin's Press, (originally published in 1988) 2005), de Cauter suggests a character of the “Straussians” contribution that the great hidden conspiracies that has interesting implications for conceptions of “rule of law” theories.
The political philosophy of Leo Strauss can be summarized like this: the few, the ‘real men’, as Strauss calls them in quoting Xenophon, the philosophers, know the truth: that there are no gods, that there is only one natural right, namely the right of the strongest, the right of the few (to enjoy the pleasure of life and contemplation). These truths are dangerous for the philosophers, for they might be prosecuted, and, more importantly, they are harmful to society. So one has to make a double doctrine: an esoteric one for the few, and an exoteric one for the many. . . This outward face of philosophy (which Strauss calls ‘political philosophy’ –the face philosophy shows to the polis), is, in Strauss’s terms made up of ‘pious lies’ and ‘noble myths’. . . . For Strauss the philosophical elites who know the truth, should tell the gentlemen who are in power the pious lies to uphold in public of God, law, freedom and patriotism. Piety, fear and permanent war are a way to turn the decadence of modernity into heroism and self sacrifice. To avoid decadence, and solve the crisis of modernity, one needs patriotism and religion as believe in the sacredness of morals, of the country and its laws. But the laws are also ‘pious lies’. (The Tyrant as Messiah: Messianism and Antinomianism in the Neoconservative Ideology,” The Brussels Tribunal (Sept. 3, 2006)).
Focusing on the rule of law aspects of this description provides an interesting insight. De Cauter suggests “The ‘problem of the law’ – ‘the difficult relationship between philosophy and the law that Leo Strauss sought to delineate throughout his works’, as Agamben puts it at the beginning of ‘The Messiah and the Sovereign’ - is responded: justice is translegal, to be beneficent is to be just, so beneficent tyranny is more just than the rule of law.” Id. (citing Giorgio Agamben, “The Messiah and the Sovereign: the problem of the law in Walter Benjamin,” in Potentialities: Collected Essays in Philosophy (Palo Alto: Stanford University Press, 2000:160-174) at p. 161.
Of course, this exercise in the cultish character of Straussian political philosophy provides the template for all cults of this kind—including the religiously based conspiracies of Christianity and Islam, and those in which one can substitute some one or another neo-liberal, Marxist or other group, for the Straussians who are the object of the description. But whatever the group, law in general, and the rule of law, in particular, appear to play a significant role. On the one hand, the rule of law, as a foundational norm of human organization, is a necessary subterfuge. It is necessary as a means of managing populations. Whatever the form of governance organization chosen—democratic, fascist, totalitarian, theocratic—rule of law concepts (implying a mandatory transcendence of law and the obligation to be true to that transcendence and its commands) serve instrumentally as a narcotic for the masses. Belief in the rule of law is a necessary predicate to the rule of men. On the other hand, the substantive elements of classic rule of law, is necessarily immanent. It is the elaborated application of the will of whatever elite is said to rule beyond the veil. Yet, at this level, even this immanent rule of law exhibits classical rule of law characteristics—for such a rule by men to be justified, it must conform to the mores and norms of the ruling class. In that respect, these elites necessarily either apply the rule in the normatively required manner or they act illegitimately.
Thus, in effect, conspiracy theories complicate but do not abandon rule of law theories that have come to dominate political thought from the mid-twentieth century. But they also bend rule of law theory to non-democratic ends. Rule of law is thus a means to oppression, to the management (subordination) of people by application of the imperatives of the rule of law, but bent to “bad” ends; that is to ends other than for the ultimate benefit of the governed either in accordance with the expectations, values and will of the governed or in accordance with transcendental principles flowing from “nature” or the “divine.” But it is also the means by which the dominant group—however hidden, must arrange its own internal governance. In this sense, rule of law works the way that it is “supposed” to, but only for the benefit of the governing class.
And this, indeed, provides a useful insight for the current state of global governance, even in the absence of any conspiracies. It suggests the basis in which rule of law societies can govern on the basis of one set of norms internally, while simultaneously governing through an inversion of values externally. Thus, a democratic rule of law society can be at the center of an empire in which subordinated peoples are managed through rule of law systems that as to them may be tyrannical (even if for “all of the best reasons.” But a non-democratic system can do the same—putting forward law as a make for control mechanisms that translate rule of law rules to a different level of governance. The discussion reminds us of the malleability of theory, even universal theories—like rule of law and democracy—to suit the needs of the society that deploys them. It thus suggests that rule of law may be universal in the sense that it must exist at the functional level of governance—but that not every level of governance is legitimately denominated as such. And, indeed, that society makes a fetish of denominating all sorts of levels of governance as such when they are no such things.
There is irony in the consequence, that in their inversion and projection of the world they deny, conspiracy theorists solidify the foundations of rule of law analysis; in their efforts to show rule of law for a sham, they also provide conceptual support for the opposite. Yet, there is also some value in the effort to discredit rule of law theory as a foundational norm set for human organization. While it is clear that rule of law concepts are difficult to avoid--even if limited, as the conspiracy theorists inadvertently suggest, to the community with effective power, it is also true that rule of law assumptions are not "natural" or "inevitable" in all social orders. But this has been well known since the time of Aristotle. Aristocratic governments can be perfectly democratic within the governing group, and brutally repressive in its management of those to whose welfare they are charged with managing. But they need not be. That rule of law--the notion that rule systems can exist either organically (separate from the governmental apparatus) or transcendentally (emanating from a divine source (for example))--is possible at all, at any level, is an insight worth holding onto. That it can exist as a foundation of mass democratic systems is also likely. That it need not, is something that should give theorists pause, especially those inclined to conclude that human society has reached some sort of advanced enough level that humans need no longer worry about the naturalization of rule of law concepts in human organizations.