RELACIÓN DE DATOS Y OBSERVACIONES

1

A proposition

The chasmic structure of law examined in the previous chapter gives rise to a critical question in both theory and practice: where does it leave ‘the rule of law’ as a proposition?

The argument I make in this chapter is that it leaves it in a very fertile position. Animated by a contradiction between the intention of instituting an objective order that separates law from its subjective basis—so that it is law, and not humans, that rules—and yet the impossibility of achieving that separation, law’s rule cannot be closed off to its subjects. As an institution, the rule of law must remain open to what its conceptual schema does not wholly admit: the subjects who enliven it whilst remaining abject before it. This is not a resolute position, because the rule of law, like every modern institution, always cuts short as a normative matter the subjects upon whose backs it is to be found. Butthis is also not a hopeless position, because it exposes both the possibility and the necessity of its responsiveness as an institution to the subjects who enliven it. Thus law’s rule is enlivened by a dialectic that makes ‘the rule of law’ not only a violent conceit but also a criticalinstitution of social life.

I make this argument in two steps. In the first (Part 2), I examine ‘the definitive theory of the rule of law’ to show how ‘the rule of law’ and ‘the rule of humans’ are separate, and opposed, but also inseparable, and constitutive, and how this places the institution on fluid grounds, neither entirely negating its possibility nor giving it a determinate position. To do this, I begin by considering how legal pluralism, understood as a diagnostic of the normative differences that animate law’s life on the ground, reflects the contradiction in the proposition of the rule of law. That is, as a reminder of the subjectivity of law, legal pluralism reflects the problem that the rule of law cannot be closed to its subjective situation through the institution of legal order. With this in mind, I then turn to the theory of the rule of law to show how, as a proposition, it is set against the very arbitrariness that results from law’s pluralism. Thus the need for discretionary treatment by law, to ensure the law remains responsive to the plurality of difference that confronts it, comes up against the need for standard measures of law, to ensure the law is not exercised arbitrarily but applies equally to everyone.

In the second step (Part 3), I turn to the problem of ‘instituting the rule of law’ in practice. Having established the chasmic structure of the rule of law, the question remains: where does this leave its institution as an empirical matter? I address this question by considering how the chasmic structure of the rule of law opens it to animation by different ‘logics’, which inform how it takes place. In doing this I show how a theo-logic once sought to resolve the contradiction in the rule of law by invoking God as the ultimate authority. In this way, the sovereign position of the law-maker could be upheld at the same time as the sovereign was held subject to the law, through the logic of a natural law that ultimately made law, and not humans, supreme. Likewise, I show how a mytho-logic now operates to resolve the contradiction by naturalising the institution of the courts as the objective arbiter of the rule of law, ensuring law-maker is subject to law at the same time as law is subject to law-maker, as a matter of law. Thus, just as the objective authority of God once ensured it is law, in the end, and not humans, that rules, now it is the objective authority of the courts that ensures it is law, in the end, and not humans, that rules. However, neither the theological natural law nor the mythological judicial objectivity ultimately resolves the contradiction, leaving law’s rule open to other logics, and in particular other ideologies such as capitalism, to inform how it takes place. This, I argue, is what enables para-sitic regimes to colonise a place and people through the institution of the rule of law.

2

The definitive theory of the rule of law

The subjective nature of law, which makes ‘the law’ more than the output of an institutionalised production process,1 _{poses a problem for a definitive theory of}

the rule of law. The problem is that by definition ‘the rule of law’ is opposed to ‘the rule of humans’,2 _{and yet law remains an inter-subjective phenomenon; thus the}

rule of law, set against the rule of humans, cannot be instituted in a way that finally separates law from its subjects. In examining this problem here, I begin by

1 _{See Chapter 2, where I discussed how law does not merely have an objective form, as something}

that might be ‘made’ and ‘received’ as a pre-fabricated order and erected over the heads of humans, but is also always enlivened in and through the subjects of law.

2 _{This has been the case since Aristotle: see Part 16, Book 3 of his Politics. For an historical}

overview, see Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004). See also Brian Z Tamanaha, ‘The Rule of Law for Everyone?’,

considering the phenomenon of ‘legal pluralism’. This extends the discussion of the concept of law in the previous chapter to show how law is animated by a plurality of difference, which, as I go on to discuss, is the very ‘problem’ of the rule of law.