What We Ask of Law.

• Author: Huq, Aziz Z.

The Rule of Laws: A 4,000-Year Quest to Order the World

BY FERNANDA PIRIE

BASIC BOOKS: HACHETTE BOOK GROUP, 2021

BOOK REVIEW CONTENTS INTRODUCTION 490 I. LAW AS IT WAS: A POLYTHETIC DEFINITION 501 A. The Historical and Comparative Taxon of "Law" 503 B. Theorizing Law as It Was 505 II. A COMMON TONGUE OF LAW 510 A. Law's Contingent Relation to the State 510 B. Law's Systematicity and Casuistry 515 C. Law's Hieratic Elite 522 D. Law's Normativities 526 E. The Conveyor-Belt Model of Law Reconsidered 531 III. LAW AS POLYTHETIC CATEGORY IN THEORY 532 A. History and Officialdom in The Concept of Law 533 1. The Movement from the Primitive to the Modern in The Concept of Law 534 2. The Role of Officials in The Concept of Law 539 B. Decoupling Law from the Rule of Law? 543 IV. LAW AS POLYTHETIC CATEGORY IN CONTEMPORARY PRACTICE 550 CONCLUSION 556 INTRODUCTION

Much is asked of law, but we seem of late to reap dismayingly scant returns. Take a minimal, reasonably uncontroversial demand. In its totality, a legal system should realize the Hobbesian sovereign's prerogative of establishing civil order. (1) It should stabilize a polity against the chance hazards of ordinary violence and also soften the blows of extraordinary, destabilizing misfortune. But, in the contemporary United States, has law succeeded at even these fundamental tasks? It has not had a visible constraining effect on serial mass shootings of children. (2) It has not abated the lethal toll of violent crime, (3) which remains balefully associated in the public mind with racial minorities. (4) At the same time, it has done too little to stanch the seemingly endless flow of racialized police violence paid for and directed by the state. (3) The insurrection at the U.S. Capitol on January 6, 2021, suggests that law no longer seems to "break the irregular rule of the street" to allow for the tedious civility of representative, democratic politics. (6) Look beyond violence to larger threats to public order, and law's ambitions fare little better. It played a questionable role in responses to the global financial crisis. (7) Nor could it sustain a public consensus robust enough to combat the viral plague that has just taken more than a million American lives. (8)

Neither state nor private violence and disorder, then, is firmly circumscribed by the institutions of American law at present. To be sure, we do not reside in a Hobbesian state of nature. But for those most vulnerable to the accumulating costs of private and state violence--especially racialized minorities in the United States--that may well be rather cold comfort. (9) To their weary ears, solemn praise for the law might well not ring true. To borrow from W.H. Auden, it may instead sound more like a tinnitus of "impotent grandfathers feebly scold[ing]." (10)

And yet, the encomiums for law and a related (but not identical) normative ideal of the "rule of law" keep gushing forth. (11) For example, Justices of the U.S. Supreme Court--most recently Justice Gorsuch--rhapsodize "the rule of law" as preferable to the "rule of men." (12) Law, Justice O'Connor once intoned, guards against a government driven by "caprice, passion, bias, and prejudice." (13) Law, said Justice Scalia, lays the groundwork for "rudimentary justice." (14) It "protects the rights and liberties of all Americans... . [W]ithout the rule of law, any rights are meaningless." (15) Similarly, the rule of law is, for academic lawyers like Richard H. Fallon, Jr., "central to our political and rhetorical traditions, possibly even to our sense of national identity." (16) Fallon's position echoes across the Anglophone world. In an influential book, the English Law Lord Tom Bingham concluded that "it is on the observance of the rule of law that the quality of government depends." (17) Bingham's vision of "government... in accordance with established and performable norms" is indeed twice as old as our nation. It has been traced back to the thirteenth-century English jurist Henri de Bracton. (18) Its influence perhaps reached an acme in 1975, when the preeminent Marxist historian E.P. Thompson pronounced that "the notion of the rule of law is itself an unqualified good" (19)--much to his fellow travelers' chagrin. (20)

Underlying many of these endorsements of law, I think, is an implicit "folk theory" of how law--that is, how a well-ordered legal system, not just a single rule or enactment--actually works to produce the social good of the "rule of law." (21) I cannot point to a single place where this model is written down. It is not, to be clear, the famous jurisprudential concept of law offered by legal positivists working in the vein of H.L.A. Hart (to which I will return later). (22) It is a demotic rather than formal understanding. As such, it often works as a pretheoretical presupposition that can be silently put to work by the conservative jurist, the liberal legal scholar, and the Marxist historian alike. Once set forth here, I hope it will resonate. Once stated, that is, I hope it will seem sufficiently intuitive to lay claim to a measure of generality as an operative presumption behind much everyday talk of law and its relationship to the rule of law.

I call the demotic, or folk, theory of law the "conveyor-belt model of law." It has three elements, which correspond respectively to the moments of law's production, application, and output. First, the law typically has a temporally distinct origin in an officially authorized source. (23) This origin is known and fixed, both in time and institutional source. The law is hence capable of legitimation by its pedigree. (24) Second, a cadre of specialized state actors, usually judges, later apply that law to disputes involving new facts and parties. Law therefore has not only a proper pedigree but also a proper armature. (25) And third, applying that body of early forged law in new cases creates general benefits beyond the localized good of resolving a specific dispute. (26) The larger good most commonly associated with law relates not just to predictability, but also to the possibility of binding powerful actors in a society, especially those wearing badges of state authority, in ways that foreclose capricious, whimsical, or self-interested action. This last result is often captured in the otherwise vague term "rule of law." (27 )I call these three steps a "conveyor-belt" model because they together imagine a linear and unidirectional pathway from written law to judicial application, and then to a state characterized by the rule of law.

The image of a conveyor belt captures a motivating metaphor embedded deeply in the self-understandings of many actors within the American legal system. It formalizes, albeit in somewhat facile terms, what those actors believe themselves to be doing when they act out their roles in a formal legal system. It also captures one way in which a normative, evaluative element of some sort is irreducibly comingled into law's description. Mere words, it implies, can and do enchain power. Mere parchment barriers hence work as a positive force for social good. This is not to say that law must meet a moral criterion to count as law. (28) It is simply a claim that law is a social fact with "normative" force and hence desirable consequences. (29) Specifically, the official act of following or enforcing a duly enacted piece of law creates a positive social good of the rule of law--that is, the binding of powerful actors by ex ante rules in ways that limit capricious or arbitrary conduct.

So, what's gone wrong? If the folk theory of law is widely held and in good working order, why doesn't law do its core job of constraining power and creating order better? (30) And why does this afflict the economically and socially marginalized most of all? There are, to be sure, obvious local and contingent reasons for law's present shortfalls that have nothing to do with our working theory of law. Specific legislative and judicial choices elicit the structural conditions of public violence, distrust in the public-health apparatus, and poorly regulated security forces. Pick your poison. Yet these observable shortfalls in law's ambitions invite the question not just of whether we are making bad policy choices (although we certainly are), but also whether our understanding of law as a ground for producing the rule of law is flawed or incomplete. Perhaps our expectation that law is a social technology capable of delivering certain social results is simply implausible. Perhaps we have overlooked law's limitations by failing to grasp clearly some of its common constituent elements. Or perhaps we have just misperceived how law works in the first instance.

Picking up on that last possibility, my aim in this Book Review is to reevaluate some dominant assumptions about a well-functioning legal system in light of new evidence of how law operates across a wider historical and geographic panorama. With this analysis in hand, I hope to offer a new perspective on what makes law distinctive as a tool of social regulation, and thus to elucidate some of the consequences of a new model of law for current disputes in legal theory and contemporary legal debates. By moving away from parochial conceptions of law and instead asking what marks law as a transhistorical social practice, I further hope to make some progress toward understanding the relationship between law's operation and the elusive normative ideal of the rule of law. In so doing, I hope to gain purchase on how law's modal vectors facilitate some, but by no means all, kinds of social orderings. (31) In particular, I ask whether law as a mode of social action is oriented toward the creation of hierarchy or more emancipatory projects. To be clear, I make no claim to explain all the shortfalls in our current social order. (32) More modestly, I want to probe why our implicit conception of law might foster infeasible or misleading...