Public Law & Legal Theory
A minimal, reasonably uncontroversial, demand of a legal system is that it should stabilize a polity against the chance hazards of ordinary violence and soften the blows of extraordinary, destabilizing misfortune. Law in the contemporary United States, however, has not abated the lethal toll of violent crime, the serial mass shootings of children, the endless flow of racialized police violence, or even the toll of insurrectionary violence that shadows democratic politics. The gap between law’s operation in practice and its ultimate aspirations toward social order offers a hint that something in our dominant working model of law, and its relation to an ideal of the rule of law, is awry.
This review essay reconsiders the presently dominant assumptions about a well-functioning legal system to in light of new evidence of how law operates across a wider historical and geographic panorama. This exercise in historically contextualization has implications for the choice of a sound working definition of law, a clear understanding of the latter’s relationship to the rule of law, and an accurate sense of whether law is likely to advance or retard emancipatory projects of social reform, especially pertaining to racial injustice. The occasion for this reconsideration is Professor Fernanda Pirie’s book The Rule of Laws: A 4,000-Year Quest to Order the World, an extraordinary and ambitious effort to fuse historical, anthropological, sociological, and legal learning across continents and eras into a single narrative arc. Starting with the historical materials eloquently marshalled by Pirie, I refine a new ‘polythetic’ definition of law that is distinct from the demotic definition of law commonly used in both popular and juristic discourse. To illuminate its distinctive form and implications, I bring this ‘polythetic’ definition into conversation with the leading jurisprudential theories of H.L.A. Hart and Lon Fuller. This sparks new ways of thinking about the relation of law to the state on the one hand, and about legalistic aspirations of the rule of law on the other. In concluding, I consider the implications of the polythetic definition of law for the pressing contemporary problem of how law relates to projects of racial hierarchy or reform.
Aziz Z. Huq, "What we ask of law", Public Law and Legal Theory Working Paper Series (2022).