The Rule of Law Is Dead!
Long Live the Rule of Law!
Keith J. Bybee
IN THEIR CLASSIC DISCUSSION of legal reasoning, Carter and Burke argue that the rule of law, in its essence, is a matter of requiring people to “look outside [their] own will for criteria of judgment” (Carter and Burke 2007, 147). Whatever the specific features of a given political order may be, the rule of law directs individuals to organize their lives and reconcile their disputes according to independent, publicly shared principles outside the sphere of personal attachments and private beliefs. The highly charged conflicts that end up in courts will certainly tempt people to evaluate a judge’s decision by their own feelings and convictions. But the rule of law asks us to push beyond individual preferences. “[If] you stop and think about it,” Carter and Burke write, “judging a legal result simply in terms of one’s own sense of right and wrong won’t do. The whole point of the rule of law is to set standards of governance that transcend individual moral feelings. If all we have are our moral feelings, we are no better than Islamic or other religious fundamentalists who insist that their moral scheme justifies destroying other incompatible moral systems” (ibid., 3; emphasis in original).1
Judged by this definition, the United States is arguably experiencing a ruleof-law crisis. Public opinion polls show that substantial majorities of Americans consider judges at every level to be influenced by political preference. The belief that judges decide cases and issue rulings on the basis of partisan interests is supported by scholarship that shows the judicial process to be permeated by political claims and commitments. Rather than attempting to “look outside