Modernism, Polarity, and the Rule of Law

Abstract

The rule of law is in peril. Some say it is imperiled by reactionary politics. Some say it is imperiled by radical theory. Some say that these two dimensions are complicit: by working so avidly to undermine the integrity of texts and institutions, key movements in contemporary legal theory and philosophy are often said to weaken the bulwark of the rule of law just when it is most needed. The question for this Article is the following: is this true, and if it is, what can we do about it? Powerful critiques of rules, language, objectivity and meaning in law have been accumulating for a long time now and cannot just be wished away, regardless of our political preferences. The challenge is to address more seriously what this means for the rule of law. But it is a challenge confronted. Those interested in the rule of law tend to trivialize the critique; those interested in the critique tend to ignore the rule of law. In this Article, I attempt to get past this willful blindness and engage the issue. The critique of positivism does indeed have serious implications for the rule of law. But by paying attention to the historical moment when these two traditions most dramatically collided, there is much we can learn. Not only does the historical context sharpen and intensify the issues at stake, but it also reveals a third alternative that ignores�neither�the critique of positivism nor the rule of law. In this Article, I will call this alternative polarity, and I want to show where and why it arises from the historical context of modernism and what implications it might have for a post-positivist rule of law. History therefore teaches us not only why the problems with the rule of law have been so long-lasting, but what we might do about it. Perhaps, after all, the peril to the rule of law might be averted not by ignoring the critique of positivism but by embracing it.