Myth, Magic and Mystery: Defending the Hidden Order of the Rule of Law
Rule of Law, natural law, divine law, postmodernism, Aristotle, law as umpire, Deism and God, Intelligent Design and Darwin, Rule of Law as a "Hidden Order", law as the language of power, noncumulative knowledge and law, hypocrisy and self-deception, religion and natural law as the sources of value
Abandonment of a belief in the objectivity of knowledge, along with the postmodernist assertion that language, truth and power are not only inextricably joined but malleable has left us with a sense of profound uncertainty. This pervasive doubt extends to virtually all realms, including law. The sense of uncertainty causes us to struggle over the application of indeterminate rules written in indeterminate language and applied to indeterminate contexts. At the core of our uncertainty is the fact that once our most important legal doctrines were disconnected from any belief in divine or natural sources of right and wrong, sources that existed independent of humanity but to which we are subject, nothing of consensual substance has replaced those strong belief systems. The challenge is that in relation to all issues of social consequence choices must be made even though there are no clear formulae to guide us. In law, those who purport to be able to identify certainty in interpretation, such as Justice Antonin Scalia, themselves offer only relativistic methods that are just as vulnerable to attack as vague or biased as the choices made by those they criticize. While the disconnection between law, natural law and divinity is rationally and evidentially justifiable in terms of our being unable to "prove" that God or an overarching system of natural law exists based on methods acceptable to our "modern" post-Enlightenment community, we have nothing to replace the value system represented by the magic of faith, mystery and myth other than resort to political power. Nor is it likely we can reinvent a strong consensual source for law and fundamental values. With the resulting moral vacuum this means that, since law is a primary method of power in Western society, gaining control of the institutions by which law is created, interpreted and applied is central to the strategies of competing factions. The dilemma is that the struggle to control law and legal institutions is weakening the hidden or tacit order of the Rule of Law by undermining respect for law and reducing our ability to compromise.
David R. Barnhizer, Myth, Magic and Mystery: Defending the Hidden Order of the Rule of Law, SSRN Cleveland-Marshall Legal Studies Paper No. 07-149 (October 2007)