The 'Delicately Constituted Fiction' of the Rule of Law

32 Pages Posted: 27 Mar 2007

See all articles by David Barnhizer

David Barnhizer

Cleveland-Marshall College of Law, Cleveland State University

Date Written: March 20, 2007

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 fa├žade 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.

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

Suggested Citation

Barnhizer, David R., The 'Delicately Constituted Fiction' of the Rule of Law (March 20, 2007). Cleveland-Marshall Legal Studies Paper No. 07-140, Available at SSRN: https://ssrn.com/abstract=975245 or http://dx.doi.org/10.2139/ssrn.975245

David R. Barnhizer (Contact Author)

Cleveland-Marshall College of Law, Cleveland State University ( email )

1801 Euclid Avenue
Cleveland, OH 44115
United States
216-687-2315 (Phone)

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