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Unpublished Paper
Defending the Rule of Law in an Era of Cultural Fragmentation and Cynicism
ExpressO (2014)
  • David Barnhizer
Abstract
Abandonment of a belief in the objectivity of knowledge, along with the postmodernist assertion that language, truth and power are intertwined 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 applied to indeterminate contexts. At the core of our uncertainty in the context of the perceived integrity of the Rule of Law is that once our most important legal doctrines were disconnected from any belief in divine or natural sources of right and wrong existing independent of humanity but to which we are subject, nothing of consensual substance has been able to replace those strong belief systems. This means that for all issues of social consequence choices must be made in an environment where there are no clear formulae to guide us. Lacking clear moral formulae we have increasingly resorted to intimidation, accusations of bigotry, ill will and agenda-driven malice in advancing our positions and condemning those of our opponents. The challenge is that without a reasonable degree of shared morality and belief the terms of law are too open-textured to produce clear justifications for many of the conclusions offered in areas of the most critical and intense social conflicts. 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 as vulnerable to attack as being as 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” through methods acceptable to our “modern” post-Enlightenment community that God or an overarching system of natural law exists, we have nothing to replace the value system represented by 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 of all kinds. The dilemma is that the struggle to control law and legal institutions is weakening the Rule of Law by undermining respect for law and its institutions, reducing our ability to compromise because we are left with the unsatisfying mantra of, “that’s just your opinion—and I have a different one” or “I’m right and you are wrong and if you don’t agree with me then you are a bigot”. The irony is that our reliance on concepts such as equal protection, fairness, equity and similar articulations of basic principles is itself necessarily a form of belief in natural law because the terms are empty vessels into which we must pour meaning.
Keywords
  • rule of law,
  • legal interpretation,
  • legal skills,
  • identity politics,
  • law and theory,
  • fragmentation,
  • cultural fragmentation,
  • judicial decision making
Disciplines
Publication Date
April 22, 2014
Citation Information
David Barnhizer. "Defending the Rule of Law in an Era of Cultural Fragmentation and Cynicism" ExpressO (2014)
Available at: http://works.bepress.com/david_barnhizer/91/