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Unpublished Paper
THE DECAY OF THE “MYTH” OF THE AMERICAN RULE OF LAW
(2019)
  • David Barnhizer
  • Daniel D. Barnhizer
Abstract
THE DECAY OF THE “MYTH” OF THE AMERICAN RULE OF LAW
 
The Rule of Law in Western culture is informed by myths regarding the operation and activities of that norm.  These myths inform, undergird and highlight critical principles of a kind essential for sustaining the integrity and authentic operation of the Rule of Law.  Plato’s Crito represents Socrates’ personification of the Laws and their heroic accomplishments in ordering Athenian society.  In that dialogue, Crito (a student and friend of Socrates) has arranged for Socrates to escape his death sentence from the Athenian assembly by spiriting him away the night before he is scheduled to drink the poison hemlock.  Socrates responds with his personification of the laws of Athens.  He gives that story mythic content by moving beyond a mere recitation of the merits of the Athenian laws to the description of a cosmogony of Athens as a community and Socrates as a member of that community.

At the heart of our analysis is the belief that the Rule of Law is an ideological and political “commons” that exists in a larger “political ecology” of Western representative democracies, in much the same way that concept of the commons is used by environmentalists.  The Rule of Law is a social good, a cultural architecture and value system, and a resource that provides benefits to all citizens within polities that embrace and promote that institution. But just as with physical commons in natural systems, the accumulated weight of individually rational but self-serving decisions by existing users of the system who feel no obligation to consider the larger impacts of their exploitation of the rights and powers afforded them can overwhelm the system’s carrying capacity.  This may take the form of massive overuse, possibly as participants in the legal system generate pressure for ever-greater state responses to perceived problems through law. As we discuss in this brief analysis, the “commons” of the Rule of Law is undergoing an accelerating process of decay and disintegration.
 
Keywords
  • Rule of Law,
  • myth,
  • ideology,
  • Socrates,
  • Disintegration of Rule of Law,
  • Tragedy of the Commons,
  • Rule of Law as a Commons
Publication Date
2019
Citation Information
David Barnhizer and Daniel D. Barnhizer. "THE DECAY OF THE “MYTH” OF THE AMERICAN RULE OF LAW" (2019)
Available at: http://works.bepress.com/david_barnhizer/127/