Blind Faith and Reasonable Doubts: Investigating Beliefs in the Rule of Law

• Publication year: 2000
• Citation: Vol. 24 No. 02

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 3WINTER 2001

ARTICLES

Blind Faith and Reasonable Doubts: Investigating Beliefs in the Rule of Law

Jessie Allen (fn*)

The rule of law, whether applied to matters trivial or grand, is the central magic of the American governmental experience.

New York Times Editorial(fn1)

In the winter of 1998-99, I was in a graduate law program designed for future law teachers. I found myself thinking with new urgency about old questions: Can our legal system produce results that are at least partly independent of political and economic power? Or does the law always wind up reproducing and reinforcing the powers that be? In short, is there any such thing as the "rule of law"?

By a bizarre accident of timing, my personal inquiry into rule of law issues coincided with a new popular interest in these matters brought about by the Clinton impeachment hearings. Suddenly, there were almost daily references in the news media and on the floor of Congress to the sanctity and vulnerability of the rule of law in our democracy. I was particularly struck by the quasi-religious tone that prevailed.(fn2) It seemed paradoxical to me that this most rationalist ideal should generate an aura of the sacred, and the apparent contradiction provoked me to look more closely at what we mean when we talk about believing in something.

While considering what it meant to preach the rule of law as an ungrounded article of faith, I began to wonder if there was anything about the nature of legal practice that might ground a more limited belief in law's ability to constrain power. Watching the impeachment proceedings on television, I found myself thinking about an earlier period in my life. I used to be an actress and a performance artist. It occurred to me that there were certain similarities between legal and theatrical practice.

Perhaps the formal conventions that radically limit behavior on stage and in court might be related to the decisional constraints that constitute a rule of law. That possibility, in turn, led me to ponder various kinds of limits evoked by the figure of a blind, hence limited, justice. In the end, the formalities of legal procedure seemed more central to the value of a just legal system than I had previously thought. Somehow, investigating my own tenuous-but apparently unshakeable-belief in a rule of law ideal changed the way I saw legal practice. This Article reports that investigation.

I. TEACHING AND BELIEVING

You may disagree with us, but we believe in something.

Rep. Henry J. Hyde(fn3)

What would I say if my students asked me if I believed in the rule of law? I could try a definitional dodge (always defensible as a lesson in forensic technique): "Well," I might hedge, "that depends on what you mean by 'rule of law.'" I could stay on safe technical ground by observing that problems brought to litigation are often stated in terms of rules and that lawyers need to know how to make and defend such statements. Or, I could go straight to the heart of the matter, then out the other side, by articulating and then distancing myself from the most improbable extreme version of the rule of law ideal: "I certainly do not believe that law is a closed logical system that functions entirely through the algorithmic application of politically neutral principles by purely rational, objective decisionmakers." But rhetorical strategies are unlikely to satisfy a student who really wants to know if I think there is or can be such a thing as the rule of law, "not of men."(fn4)

It is quite possible to study and even to practice law without forming a clear opinion about whether law is capable only of embodying and amplifying power, or if it can also restrain it, if not absolutely then to some meaningful degree. Lawyers and law students face more immediate problems about how law works. They must win the case, do the assignment, pass the test, make the motion. If theoretical or philosophical doubts and questions arise, there is nothing paralyzing about not knowing where they stand. But it is hard to imagine teaching something when you are uncertain about whether you believe in that something's capacity to do what it is ostensibly meant to do.

A syllabus says something about what the teacher thinks law is and can be. The question of what cases to include in a first-year torts class-and of how to explain the courts' decisions in those cases- quickly opens up the question whether it is likely, or even conceivable, that "our law will rule ... us, not the wishes of powerful individuals."(fn5) A course plan may, or probably should, include materials that present beliefs contrary to the teacher's views. It is hard to envision a successful class taught so that no one has a clue as to what the teacher believes about law's institutional effects, let alone one taught by someone who does not know herself what she believes.

Maybe that is why for so long the most bitter controversies about law's potential to restrain political power were not among lawyers, statesmen, or social reformers, but among law teachers. In the 1930s, the Realists stirred up the legal academe with their attacks on law's claims to transcend political and economic pressures and the prejudices of legal decisionmakers. Though some of that skepticism undoubtedly influenced the legal system through the attitudes of Realist judges, explicit debate about the meaning and potential of the "rule of law" remained firmly rooted in academia. Decades later, in 1984, Paul Carrington, then Dean of Duke University School of Law, published a pithy attack on skeptical scholars who question law's institutional ability to transcend individual partiality and contending that those intellectual "nihilists" had a duty to leave the training of young lawyers up to true believers in the rule of law.(fn6) The battle was joined by commentators of various political and scholarly stripes,(fn7) but it never made much noise outside the ivied halls of legal academe.

A. The Impeachment

That changed suddenly, and with a vengeance, when the impeachment trial of President Clinton made "rule of law" a household phrase. It was tossed around and defended or dismissed by millions of readers of the morning Times and watchers of the nightly news. With passionate conviction and chant-like regularity, the House Managers avowed that the President had violated the rule of law and that his impeachment and conviction were required to vindicate it. In response, the President's advocates argued first that the impeachment itself was a violation of the rule of law (because its procedures fell short of due process),(fn8) then that impeachment had nothing to do with the rule of law (which could only be enforced through an indictment and judicial trial),(fn9) and finally (when it seemed certain that the President would be acquitted by a wide margin), that the Senate proceedings were a fine example of the rule of law in action.(fn10)

How strange, just as I was coming to seriously puzzle over my own position on the rule of law question, to hear the phrase repeated in a hundred disjointed contexts, like the theme music in a bad movie. In my more narcissistic moments, it occurred to me that I could have dreamed the entire impeachment trial, conjured it as a kind of wild dramaturgy of my personal intellectual dilemma: "Yes, doctor, it was really weird. There was some kind of trial going on in this big room with velvet curtains and all this dark wood paneling. And the judge had these gold stripes on his robe, like a costume from some community theater production of Gilbert and Sullivan.(fn11) Anyway, the prosecutor gets up and says, 'he takes an oath to tell the truth, the whole truth, nothing but the truth and lies, and then lies, and lies, and lies. What kind of lesson is that for our kids and our grandkids? What does it do to the rule of law?'(fn12) The defense attorney was in a wheelchair. What do you suppose that means? He rolls up to the mike and says, 'The fact that we are having this trial in this chamber ... is itself part of our rule of law. The President is immersed in the application of the rule of law.'(fn13) Yes, 'immersed,' that's interesting isn't it? As though law was a kind of solvent that could produce . . . what? Some sort of transformation, I suppose."

B. Rule of Law Theories and Problems

You might think that the Clinton impeachment was not a likely setting for a serious debate about the rule of law ideal. Perhaps the rhetoric that accompanied that tawdry political spectacle should not be compared to a principled theoretical discussion. But it strikes me that the figures in my real-life dream sequence articulated two different notions of the rule of law that correspond quite closely to divergent theoretical versions of the concept as it is identified in the scholarly commentary.(fn14)

The prosecutor, Henry Hyde, took what Margaret Radin calls a "substantive" view of the rule of law,(fn15) treating it as the institutional embodiment of a moral system centered on fairness. The tricky thing about this view is that it sometimes seems to confuse violating the law with violating the rule of law. If President Clinton lied under oath, he broke the law against perjury. But "rule of law" usually means more than lawbreaking. Laws, after all, are made to be broken, and when they are, the rule of law remains intact, as long as the...