The 'Delicately Constituted Fiction' of the Rule of Law

Document Type

Article

Publication Date

2007

Publication Title

SSRN

Keywords

Rule of Law, legal discourse, law as power, law and propaganda, law and ideology, legal truth, law and religion, Natural Law and Hobbes, law as fiction, law as noncumulative knowledge

Abstract

The Rule of Law is a human aspiration and its "delicately constituted fiction" operates through a combination of assumptions about human nature and behavior. Acceptance of these assumptions allows the pretense that we obey willingly, that the system is fair and just for all citizens, and that we are all equal in the eyes of the lawgivers and interpreters. This posture requires a great deal of hypocrisy because we know the system's reality is far different from its ideality. But such a tacit system works best if a façade of voluntary compliance is maintained that allows us to put forward the pretense that we are law-abiding participants governed by a shared social contract. We do not want to feel as if we are compelled to certain behavior as opposed to being independent individuals in full control of what we do. The ability to avoid conscious recognition that the Rule of Law is a phenomenon of power manipulated by interest groups for their own benefit has largely disappeared in a conflicted society struggling over critical issues of justice and fairness. This means that the tacit nature of the system is exposed and that many of its assumptions and behaviors are difficult to defend. The result may be a form of honesty but it also has endangered the essence of the uniquely Western system we call the Rule of Law.

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