Proud Supporter of the Rule of Law in America
I know I've steered pretty wide of negotiation recently. But I worry about the preservation of the Rule of Law against the forces of benevolent conflict management on the one hand (see yesterday's post on harmony vs. justice here) and the stated enemies of the Rule of Law on the other (see Lawfare: Peace without Justice is Tyranny here)
You can't negotiate with in a dictatorship. Nor can you negotiate if you lack access to institutions of power such as Courts of Law.
If one takes the . . . coldly realistic view that powerful interests generally get their way (in the end), then the fact that law serves powerful interests is merely one manifestation of the ordinary course of things.
The key question is not whether law serves power (of course it does), but rather, are there any effective ways to temper or limit power? Other than the presence of competing sources of power serving to limit one another’s ambitions, our most effective social invention for constraining power is law. This is the side of law that “shapes, channels and restrains power,” . . .
This effect is achieved by the relative autonomy of law . . . To obtain credibility with the populace, the law must regularly live up to (or appear to live up to) its claims to be just and to apply to the powerful and weak alike, and this is how law comes to restrain power, even as it also serves power. Moreover, over generations, owing to the effect of legal ideals, people (including government officials) come to genuinely believe in the law, and this belief has a constraining effect on actions.
The process by which law works is almost magical: belief in and commitment to law and to legal ideals creates a reality in which law matters.
In situations where people are pervasively cynical about the law, this magical effect does not work. Law and legal interpretation, then, are manipulated (exploiting the indeterminacy of law) without restraint to do whatever one wants with a legal imprimatur; like, for example, coming up with a twisted legal interpretation of “torture” that purports to exclude waterboarding
. . . . . [I]f you don’t believe in the rule of law, or if you believe that supporting the rule of law tightens the chains that secure an unjust social order, then it’s hard to come to the defense of the rule of law in times like this.
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This does not mean that one should not expose the ways in which rhetoric about the neutrality of the law conceals a particular bent and bias. . . .
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The rule of law is an essential political ideal. When confronted with bad things accomplished in the name of the law, the best response is not to undermine law as a fraud. The best response is to demonstrate that these offensive applications betray the ideals about right and justice that law espouses and claims to represent.
This is a time honored (agonizingly slow) way of advancing the state of the law. And it’s the best we have.
The elided material has to do with leftism -- which survives here primarily in academic institutions -- and Critical Legal Studies -- neither of which is of much interest to me. If either topic is of interest to you, follow the link above to read the full Balkinization post.