The Rule of Law is the core of our political and legal ideology, but the Rule of Law increasingly is attacked as an unattainable goal. Postmodern theorists challenge whether it makes sense to believe that rules can be formulated for general application and then later neutrally applied by decision makers. Postmodern theorists reject the Enlightenment world view and its political corollary, classical liberalism. The author agrees with the spirit of the postmodern critique, but argues that we can understand the Rule of Law in a manner consonant with postmodern thought. Drawing on the Continental tradition of hermeneutics, or the philosophy of interpretation, the Rule of Law is reformulated in accordance with the insights of the post-Enlightenment era.
This article first reviews Dean Geoffrey Walker's recent attempt to defend the Rule of Law from a post-Enlightenment perspective. Dean Walker describes the emerging post-Enlightenment world view as it is reflected in disparate fields that include quantum physics and Taoism. However, Dean Walker's approach remains wedded to Enlightenment conceptions. His efforts can only serve as the springboard for a more productive hermeneutical inquiry.
The Enlightenment vision of rational, insular subjects decoding the objective world does not accurately portray the experience of understanding and knowing. Given that the natural sciences are now viewed as irremediably intersubjective and interpretive practices, it is no surprise that legal practice has been stripped of its formalist pretensions. The author describes how this inescapable hermeneutical situation does not preclude the Rule of Law, but rather is the very foundation of the Rule of Law.
68 Wash. L. Rev. 249 (1993)
Mootz, Francis J. III, "Is the Rule of Law Possible in a Postmodern World?" (1993). Scholarly Works. Paper 96.