The Decay of the 'Myth' of the American Rule of Law

Hypocrisy & Myth: The Hidden Order of the Rule of Law, 2019

11 Pages Posted: 20 Jan 2019

See all articles by David Barnhizer

David Barnhizer

Cleveland-Marshall College of Law, Cleveland State University

Daniel D. Barnhizer

Michigan State University College of Law

Date Written: January 10, 2019

Abstract

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 passive 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”, Jurisprudence, Philosophy, Classical Liberalism, “Tragedy of the Commons”, NIMBY, “National Debt”, Alinsky, “Western Culture”

Suggested Citation

Barnhizer, David R. and Barnhizer, Daniel D., The Decay of the 'Myth' of the American Rule of Law (January 10, 2019). Hypocrisy & Myth: The Hidden Order of the Rule of Law, 2019, Available at SSRN: https://ssrn.com/abstract=3313522

David R. Barnhizer

Cleveland-Marshall College of Law, Cleveland State University ( email )

1801 Euclid Avenue
Cleveland, OH 44115
United States
216-687-2315 (Phone)

Daniel D. Barnhizer (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6901 (Phone)

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