HYPOCRISY & MYTH: THE HIDDEN ORDER OF THE RULE OF LAW
By David Barnhizer & Daniel Barnhizer
The Rule of Law in America (and Europe) is a political "story," a narrative, and a performance. It is, in fact, a play and a fiction we have created over centuries, based on choices about what kind of society we desire to inhabit. The Rule of Law is neither a scientific nor a particularly rational invention, but an unfolding performance that has been "playing" in America for several hundred years, albeit with some very serious abuses and blind spots.
Hypocrisy & Myth takes the position that the "truth" of the Rule of Law requires a degree of hypocrisy and suspension of disbelief in regard to the ongoing "performance". This in no way renders the system illegitimate. It does, however, make the Rule of Law an easy target for criticism in both theory and application. The Rule of Law is an arational and irrational system based upon an uncomfortable admixture of reasoned ideals, pre-rational beliefs, evidential insights, and mythic stories. Modern and postmodern attacks on these foundations--attacks often made for egalitarian or ostensibly just purposes--have the power to weaken societal commitments to the Rule of Law and the legitimacy of the overall political community.
The challenge we face is that the Rule of Law is such a central component of the lives of most citizens of Western nations that we can hardly conceive of our societies without it. Individuals raised within the system have come to incorporate intuitively the basic outlines of the Rule of Law as background rights and entitlements that surround them like the air they breathe. But even given its vital role, we have little idea of what the Rule of Law is, how it works, and the ways in which it is threatened through our neglect, self-interest, and ignorance.
As is explored throughout Hypocrisy & Myth, the Rule of Law is simultaneously facilitator, catalyst, and barrier against the abuse of power. It motivates individuals toward ideals of evolving community, including the development of our highest qualities of humanity as individuals. Equally importantly, the Rule of Law serves as a governor on the uses of collective power against members of that community. In this sense, the Rule of Law provides a rallying point from which individuals may morally resist abuses of power by the community. In this latter dimension, the Rule of Law limits the ability of the state to control citizens through the specific exercise of legal power.
David Barnhizer is Professor of Law Emeritus at the Cleveland State University College of Law. He received a LL.M from Harvard Law School and a J.D. summa cum laude, from the Ohio State University College of Law where he was Articles Editor of the Ohio State Law Journal. He has been a Visiting Fellow at the University of London's Institute of Advanced Legal Studies. He was Senior Advisor to the International Program of the Natural Resources Defense Council, Strategic Consultant to the Government of Mongolia, and has authored more than forty articles and six books. His teaching has included Jurisprudence, Ethics, Trial Advocacy, Strategy, Dispute Resolution, Environmental Law, Human Rights, International Trade and Toxic Torts.
Daniel Barnhizer is an associate professor of law at Michigan State University College of Law, where he teaches and writes in the areas of business, contract, securities, and commercial law. Professor Barnhizer maintains a consulting practice in corporate and securities law. Professor Barnhizer worked as a litigator in Washington, D.C., with practice areas focused on corporate governance, securities law, and white collar criminal law. He graduated with honors from Harvard Law School where he was Managing Editor of the Harvard Environmental Law Review.