Monday, June 06, 2016

Oakland, Brigadoon, and the Rule of Law

Mark Tushnet

OK, so maybe it's not quite right that the rule of law is like Oakland. My view is that the rule of law, such as it is, is stabilized by the historically contingent agreement among well-socialized legal professionals that certain behaviors are consistent with the rule of law, and others not. But, again in my view, that agreement can erode when well-socialized legal professionals begin to disagree about whether particular behaviors are or are not consistent with the rule of law. The erosion can be slow or fast, and at early stages most legal professionals will say that the dissenters are badly socialized, shouldn't count, and the like. I think we're at that point with Donald Trump.

At some point, though, the erosion -- the disappearance of agreement about specific behaviors -- is so substantial that it's no longer plausible to attach the label "[in]consistent with the rule of law" to those behaviors. And, at the moment the first erosion crops up, one can't be confident that we're observing mere extreme eccentricity rather than the early stages of a process that will generate increasing agreement that actions formerly agreed to be inconsistent with the rule of law are in fact consistent with the rule of law. (My metaphor for that moment is, "Trump wins the election.")

Agreement may continue to exist, of course, with respect to other behaviors, and the range of those behaviors may be large enough to make the phrase "rule of law" useful -- but only with respect to them. So, the rule of law is like Brigadoon -- here (with respect to specific propositions) for a while, then gone (with respect to those propositions). And there's no way to guarantee that any specific proposition will have an especially long lifetime.

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