Institute Overview

The Rule of Law: Legal
Studies and the Liberal Arts

Overview

It surely comes as no surprise to suggest that law and legal institutions pervade much of our lives and provide forums in which a culture’s distinctive temper may find expression. In the United States law plays a major, though variable, role in articulating values, ordering society, and dealing with conflict. More than that, the sense of law so permeates the nation’s cultural experience that it is possible for humanists, social scientists, and legal scholars, alike to speak sensibly of “legal consciousness” as a legitimate, substantive term and object of study.

The legal scholar Paul Kahn, one of our guest faculty, asks us to reflect on the links between constitutional law and culture in order to understand, "the ways in which law both reflects and constructs the self.” Put differently, one could say that in the United States law does more than express the distinctive temper of our culture: on some level, an attachment to the rule of law—to the core belief that ours is a government of laws, not people, as John Adams famously puts it—is the national temper.

Our institute will explore the meaning and consequences of our attachment to the rule of law. An historical perspective suggests (the claims of natural law philosophers notwithstanding) that there is nothing natural about the rule of law—if by natural we mean that it is self-evident and inevitable that all of the peoples of the world will eventually find their way toward some form of liberal republicanism; rather, it has a history. Moreover, the world offers daily reminders not just of how fragile and tenuous the rule of law can be, but that it cannot be legislated into existence.

Against this backdrop, the institute will focus on the significance of the American “experiment” in constitutional government, with an eye less toward celebrating its remarkable story than toward seeing what we might learn from it about the conditions necessary for the rule of law to take hold and flourish. In particular, we will work toward an understanding of its cultural underpinnings. For one of the salient characteristics of the rule of law, here, is that it rests upon a commitment to civic virtues and republican ideals—a remarkable cultural achievement, as many observers have noted, given that as a people we do not share a common religion, ethnicity, or sense of place. Ours is, to borrow the historian Benedict Anderson’s insight, an imagined community.

Sensibility and Imagination
At its heart, the institute aims to appreciate the significance of the rule of law at the level not only of statutes and constitutional documents, but also of sensibility and imagination. On this view, the rule of law both assumes and cultivates a distinctive, historically specific form of subjectivity; it generates or depends upon traditions and cultural assumptions that are not commonly thought of as having much, if anything, to do with law yet without which the rule of law as we know it is unrecognizable.

The assumption, here, is that life under the rule of law is more than an implied social contract; it is a structure of experience, a way of being in the world, which reflects a rich and complex set of traditions and cultural practices. In brief, the institute’s primary intellectual impetus is to consider what it means to live under the rule of law in the United States and to foreground the cultural conditions necessary for its possibility.

Humanistic Perspective
We will approach the rule of law from a humanistic perspective, emphasizing questions of representation, interpretation, meaning, and value in a society in which, as Thomas Paine puts it, “law is king.” For instance, we will examine how the rule of law helps frame a story of American history: the nation begins with an act of revolution (the war of independence) that radically interrupts history and produces a document (the Constitution) that is soon accorded the stature of a quasi-sacred, revealed text.

Similarly, we will consider the extent to which the Western political imagination traditionally envisions the rule of law not just as a victory over an unruly, brutish state of nature but as an expression of the fallenness of humankind: in the words of James Madison, “if men were angels no government would be necessary.” In this account, the rule of law helps to create a condition above the state of nature but below a state of grace.

Deepening this line of enquiry, we will ask what it means that in the United States the rule of law arguably has the trappings of a civic faith, a secular religion. What does it mean that, according to literature professor and legal historian Robert A. Ferguson, also a guest faculty member of the institute, the revolutionary writings of the American Enlightenment became “the sacral objects of a national observance”? These are the kinds of questions that a cultural analysis of the rule of law entails—questions that are not only of literary, philosophical, or intellectual interest, but also significant in understanding the American experience.

Cultural Life of the Rule of Law
Keeping this perspective at the forefront, the institute will contribute both to an understanding of the cultural life of the rule of law and, more broadly, to the project of thinking about the place of legal scholarship in the humanities and the liberal arts.

If an analysis of the rule of law belongs in the liberal arts, it is not just because the skills and habits of mind it helps cultivate are consonant with what is commonly viewed as the central educational mission of the liberal arts: the cultivation of a capacity for critical thinking in preparation for active, informed, and principled participation in public life as a citizen—what Aristotle would have regarded as a kind of practical wisdom. Rather, it is because the subject carries the study of law beyond its traditional disciplinary boundaries, which necessarily reflect the practical interests of law as a profession.

Just as questions about the study of health reach beyond the practical concerns of medicine and the training of doctors, so too do questions of law and justice reach beyond the training of lawyers and into the humanities and social sciences.