Wednesday, February 25, 2009

Ruminations 25: The "Other" Rule of Law

(Pix (c) Larry Catá Backer)

This is another in what I hope to be a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope is that, built up on each other, the series will provide a matrix of thoughts that together might lead the reader in new directions. Though each can be read independently of the others, they are intended to be read together and against each other.

Rule of Law has become the sacred fetish of institutions--public and private--under globalization. It implies a formal fixed meaning which is belied by its function in the contexts in which it is deployed. Rule of law is an empty vessel, filled with the beliefs and opinions of the masses for whose appeasement it is invoked.

Rule of Law has assumed the role of sacred fetish in the writings of great and small personages throughout the world. It appears to have a singular and fixed meaning--the protection of a polity against the assertion of personal power by tyrants through the construction of a hierarchy of authority in which law, and the process created to create it, assumes the superior position in the elaboration of political society.

But Giambattista Vico reminds us that law, and its rule, can be as easily viewed from other perspectives, even as it serves as the basis for ordering assertions of power:
You can see how the world of law, which was inflexible during the growth of the [Roman] Republic, became mild and slack during the decline of the Empire. At the beginning of the Empire, the study and practice of law was a deliberate scheme for strengthening the power of the princeps; later it became a remedy for averting its breadown, and finally an evil by which that rule was wrecked.
Giambattista Vico, On the Study Methods of Our Times 69 (Elio Gianturco, trans., Ithaca, NY: Cornell University Press, 1990) (original 1709).

It is to be remembered that the rule of law is not meant to substitute for the values that law represents. Law can do no more than express the will of the lawgiver in a legitimating form and forum. The quality of that law--its purpose, method, utility, and so on--is beyond the power of rule of law. Indeed, the rule of law principles ensure that even the worst sort of law will be ferociously implemented, at least until the legal process through which law is legitimately empowered is again invoked. It is a mistake, then, to assume that a rule of law society is necessarily a good, just, well ordered or welfare maximizing one.

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