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The Rule of Law Needs a Soul

The hubris of much liberal legal thinking has been to assume that once a rule-of-law regime is in place, it will be almost perpetually self-sustaining. But the mounting constitutional disarray in the Anglo-American world points to fundamental flaws in the prevailing liberal theory of institutions.

CAMBRIDGE – The Anglo-American world, once a shining beacon of the “rule of law,” is sliding into constitutional disarray. In the United States, President Donald Trump’s administration is testing the resilience of the system of checks and balances to the breaking point. In Brexit Britain, meanwhile, the debate on European Union membership is threatening to rip the country apart, or, worse still, splinter it into pieces.

Although the US and the United Kingdom have very different constitutions – starting with the fact that one is written, and the other not – both involve a subtle interplay of formal laws and informal norms and conventions. That is why there is no clear interpretation of Article 50 of the EU’s Treaty of Lisbon, which sets out the process by which a member state can leave the bloc. Similarly, there is no definitive answer to Trump’s query, most recently in the drama surrounding the Mueller report, as to whether collusion with Russia is technically illegal. Those who drafted the relevant laws, working in good faith, never imagined that cases like this would arise.

But although few anticipated the current constitutional mess, many of the problems stem from the prevailing account of the rule of law in Western legal scholarship. While correct in regarding the existence of the rule of law as a triumph, it is mistaken in taking this state of affairs for granted.

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