The Law's Fragility: Why Has It Become So?

The rule of law has always been fragile, and its foundational paradox, which binds together law and politics, is to blame. This paradox arises from the need for legitimation—law cannot legitimise itself simply by declaring itself legal, and politics must also find a way to legitimise its rules. To resolve this, law and politics project their paradoxes onto each other, resulting in a state constitution where politics legitimises law, and law legitimises politics. This coupling of paradoxes is precarious, and the rule of law is left holding conflicting truths together.

The law is open to interpretation and vulnerable to the influence of hidden power algorithms

The interpretation of laws is inherently subjective and can be influenced by underlying power dynamics. In the Berlin case, the law was interpreted in a way that prioritized the interests of corporate landlords over tenants' rights. This interpretation was likely influenced by the power algorithms of capitalism, where economic power can shape legal outcomes.

Moreover, the law's vulnerability to hidden power algorithms is also evident in the concept of "political capitalism." This form of primitive accumulation involves exploiting privileged access to information and influence to serve economic interests. The law becomes a tool to maintain and expand economic power rather than a mechanism to ensure justice and protect the rights of all citizens.

To address this vulnerability, it is crucial to recognize the role of power consolidation in shaping legal interpretations. By consolidating power, elite groups can exert influence over the rules and norms that govern society. This dynamic is particularly prominent in fragile societies, where power consolidation can take precedence over the establishment of inclusive and just legal frameworks.

Additionally, the interpretation of laws can be influenced by cultural and ideological biases. Judges, as individuals immersed in their societal context, may inadvertently apply their own biases when interpreting and applying the law. This subjectivity introduces an element of responsiveness in judicial interpretations, where the law adapts to the prevailing power dynamics and cultural norms.

In conclusion, the law's vulnerability to hidden power algorithms stems from its interpretative nature and the influence of underlying power structures. To enhance the resilience of the rule of law, it is essential to acknowledge and address these influences, ensuring that legal interpretations prioritize justice, equality, and the protection of fundamental rights.

The law is a tool for social emancipation but also masks material inequalities

The rule of law is powerful and fragile. It is a tool for social emancipation but also masks material inequalities.

The law can be a tool for social emancipation, as it can be used to free a person from a previous restraint or legal disability. For example, the Emancipation Proclamation and the abolition of slavery in the 19th century were legal mechanisms that freed people from the restraint of slavery. Similarly, child marriage, attaining economic self-sufficiency, obtaining an educational degree or diploma, or military service can emancipate minors from control by their parents or guardians.

However, the law also masks material inequalities. For instance, the law's foundational idea of a 'free and equal subject' is a legal fiction that hides material inequalities between capital and labour. The law becomes entangled with capitalism by maintaining this fiction, as it is necessary for the law to legitimise itself. This results in a structural coupling of two paradoxes, where law and politics externalise their paradoxes onto each other.

The law's claim to political neutrality is also contradictory. Judicial proceedings are only neutral when political relations of equality and authority are established. Any version of what it means for courts to be non-political must come from politics. Thus, the law's neutrality is dependent on political relations and power dynamics.

Furthermore, the law operates through a binary code of legal/illegal, but it cannot legitimise itself simply by declaring itself legal. It requires external legitimation, which comes from politics. This creates a cyclical relationship between law and politics, where each legitimises the other.

In conclusion, while the law can be a tool for social emancipation, it also masks material inequalities through its foundational paradoxes and structural coupling with politics.

The law is political and vulnerable to the influence of elite interests

The law is inherently political. As such, it is vulnerable to the influence of elite interests.

The rule of law is foundationally paradoxical, binding together law and politics. The law operates through a binary code of legal and illegal, yet it cannot legitimise itself by merely declaring itself legal. This is where politics comes in. Politics, however, also faces a similar paradox. If the sovereign is truly sovereign, what forces them to observe their own rules? The answer is that law and politics externalise their paradoxes, projecting them onto each other. This results in the state constitution: politics legitimates law, while law legitimates politics.

Because of its paradoxical origins, the rule of law is premised on holding conflicting truths together. The first contradiction of law relates to violence. Law is the opposite of violence, because it replaces the ‘wild’ and potentially endless violence of retribution with a rules-based order. Yet law can only do this by becoming the ultimate ‘mythical’ violence.

Secondly, the supposed neutrality of judicial proceedings is only made possible by establishing political relations of equality and authority. And, ultimately, any version of what it means for courts to be non-political must come from politics.

Thirdly, the foundational idea of a ‘free and equal subject’ is a legal fiction that masks material inequalities, between capital and labour, for example. Because maintaining this fiction is necessary for the law to legitimise itself, law also becomes a tool of social emancipation.

The rule of law is not a static concept. It is a tension field that needs to be managed. Jung calls the task of managing such tension ‘shadow work’.

The law is vulnerable to the influence of elite interests because of the interplay between law and politics. The law is not a neutral, apolitical concept. It is inherently political.

Economic elites and organised groups representing business interests have substantial independent impacts on government policy, while average citizens and mass-based interest groups have little or no independent influence. This is because economic elites have substantial economic resources and high levels of income or wealth. They have the power to control the nation's economy in such a way that those below them cannot advance economically. Their wealth allows them to secure important positions in politics. They then use this power to make decisions and allocate resources in ways that benefit them.

Organised interest groups also have a substantial impact on public policy. Thousands of interest groups exist, and approximately 70-90% of Americans report belonging to at least one group. These groups include environmental advocates, unions, and organisations that represent the interests of various businesses. As groups compete with one another and find themselves in conflict regarding important issues, government policy begins to take shape.

The influence of elite interests on the law is further exacerbated by the fact that the law is often enforced by those with elite interests. For example, as a judge, you have no ability to enforce the decisions you make. If you sentence someone to jail, you have no power to make sure that sentence is carried out. This makes the law vulnerable to the influence of elite interests, as they can prevent the enforcement of laws that go against their interests.

The law is fragile because it is bound to politics

The law is fragile because it is inherently bound to politics. This is due to the foundational paradox of the rule of law, which binds law and politics together. While the law operates through a binary code of legal/illegal, it cannot legitimise itself without external support. Similarly, politics faces a crisis of legitimation, as there is no authority above a sovereign entity (such as a king or a nation) to enforce its rules. As a result, law and politics are locked in a state of mutual dependence, with law legitimising politics and politics legitimising law.

This paradoxical relationship has significant implications for the rule of law. Firstly, it leads to the politicisation of the judiciary, as judges' interpretations of the law are inevitably influenced by their political beliefs and ideologies. This can result in judicial activism or corruption, as seen in the Polish case of "Reprivatisationgate". Secondly, the connection between law and politics can be exploited by powerful interests, such as capitalist globalisation, to shape the law in their favour. For example, corporate landlords in Berlin used legal loopholes to exploit tenants, prompting a grassroots movement to expropriate their properties.

The fragile relationship between law and politics also affects the public's perception of the law. When the law is perceived as serving the interests of the powerful, it loses legitimacy in the eyes of the people. This can lead to a breakdown of trust in the legal system and even encourage radical political movements. To maintain the rule of law, it is crucial for judges to appear fair and impartial, even if the law itself is ambiguous or subject to varying interpretations.

Furthermore, the dynamic nature of politics and society means that the law must constantly adapt to changing circumstances. This evolution of the law can be seen as a form of "shadow work", where the tensions between law and politics are managed to maintain a balance. However, this process is complex and challenging, as it requires navigating conflicting truths and interests.

In conclusion, the rule of law is fragile because it is inherently bound to politics. This paradoxical relationship has far-reaching consequences, including the politicisation of the judiciary, the influence of powerful interests, and the potential loss of legitimacy in the eyes of the public. Managing these tensions is crucial for maintaining the delicate balance between law and politics.

The law is enforced by people and is therefore subjective

Judges, for example, have no power to enforce their decisions. They rely on the parties involved to comply with their rulings. This means that the rule of law is upheld by people's willingness to follow the law, rather than through any inherent authority.

In the US, for instance, a judge's decision is the law, yet there is no power to enforce it. When former President Trump ordered immigration restrictions, and federal courts issued injunctions, a potential constitutional crisis was averted only because Trump chose to follow the court orders and appeal to a higher court. This example shows how the rule of law is dependent on people in power voluntarily complying with it.

The rule of law is also dependent on the public's perception of fairness and justice. If people feel that the legal system is not working towards justice, the rule of law loses legitimacy. For instance, public disillusionment with the judicial system can occur when laws are deliberately engineered to benefit certain groups, or when the system fails to protect religious freedom.

The subjective nature of the law is further highlighted by the fact that laws are open to interpretation. Judges, as people, are influenced by their own culture and ideology, and so their interpretations of the law are not entirely objective. This subjectivity can lead to inconsistencies in how the law is applied and can contribute to the fragility of the rule of law.

In conclusion, the rule of law is fragile because it is enforced by people, who bring their own biases and interpretations. This subjectivity can lead to a loss of legitimacy, inconsistencies in application, and a reliance on voluntary compliance, all of which undermine the rule of law.

Frequently asked questions