TRUE TO its Protestant heritage, American society has never taken the existence of the “group” for granted. Its emphasis upon the individual as the basic unit of experience, whether religious, social, political, or ethical, has always cast the “rule of law” in an ambiguous light. On the one hand, as Tocqueville already noted, issues and controversies that in Europe would be decided by political instances tend in America to be resolved by judicial institutions.1 This inclination to “legalize” politics implies an elevation of established, positive law over the more conflictual process of law making, which is based on shifting relations of forces.
On the other hand, however—and herein perhaps lies the ambiguity of law in the American tradition—the historical emphasis on the “individual” and the local, as distinct from the European tradition of centralized states, stands in a certain tension to the rule of law, which always implies a dominance of the general over the particular. The law is constructed for general purposes, which are then “applied” to particular “cases.” From the perspective of the rule of law, the “individual” is only a “case”: an instantiation of the general. Hence, the cult of the “outlaw,” the criminal, and, more recently, of the Mafia: all are seen as antilegal, antistate, anticentralist agents and institutions, representing the individual and the local against the anonymous powers of the State, Big Business, and “the Law” in general. Conversely, recent rejection of international law in favor of the politics of preventive warfare, preemptive strikes, and imprisonment and trial without due process, testify to the sentiment that legal procedures are inappropriate, ineffective, and perhaps in the end counterproductive when it comes to securing the “homeland.”