In the Politics, Aristotle stages a debate between those who think the rule of law is best and those who think the rule of human beings best. The case to be made for the rule of law is that it is unbiased and equal. The case to be made for human beings is that humans can judge singular situations that the law cannot foresee. Moreover, the law needs human beings to be put to work. Humans decide which law in which case should be applied. And the law cannot work unless the citizens have developed a habit of following the law.
I enjoy teaching this section of Aristotle. Students invested in a story we tell about the law recognize in this passage a sense that the law is more arbitrary and given to human whim than we tend to suppose. Not only that, this arbitrariness is an essential element of the rule of law. There’s no automated mechanism of law: we need human beings to enforce it, to make decisions about which law matters in which case and to follow it for it to have any force.
So I knew this, but I didn’t know this until I encountered people who appeared to consider themselves not in any way bound by a legal contract to which I was a party. What’s the point of a contract?! I have a friend who practices probate and real estate law in Texas and I remember her once telling me that a will only has legal significance if you can find a judge who is willing to enforce it. (This same friend asked me if I had learned nothing from living in Texas when I posted on Facebook my newfound understanding that the law is a fiction.) I remember when she said that to me I was flummoxed–“But it’s a will! Aren’t you just supposed to do what it says?” I guess she has a job because so many people don’t think so. When you’re dead, you can’t enforce it, so you really want to think it has some binding power while you are alive. But if no judge thinks it is legitimate, your will has no effect.
It turns out this is true for every contract every written. I don’t know if this makes me more or less nervous about signing a contract. The contract is binding because you treat it as binding. The law is binding because we all think it is. What I take this to mean is that the rule of law is really for those who can afford it. If you cannot afford a lawyer, and you really want your contract to be upheld, you might consider not signing the contract. Or not expecting it to have any force other than the trust you have in the other person (see previous post). If you have the money and the circumstances that permit you to fight the contract and you don’t want to meet the terms of the contract and the other person doesn’t have the money, then you can walk away pretty easily.
This is why a contract needs to be between not just formally legal equals but also economic equals in order for it to work as a contract, because only then do both parties have equal means to enforce the contract. This state of affairs would seem to further support the arguments made by Carole Pateman and Charles W. Mills about how the social contract when asserted between men and women and whites and non-whites is a pseudo-contract, only binding to the extent that it can be enforced, and the only ones with the power to enforce it are the ones who refuse to be bound by its terms. Or rather, the contract on its face is about equality, but the contract in fact binds those who are unequal to a situation whose terms they cannot negotiate or challenge because they cannot afford to.
My insight about the extent to which the law is a fiction also confirmed for me the sense that law enforcement is about protecting property. We tend to think that criminal law, the law that the police enforce, is one code (and well it is), and the civil law, the law that lawyers enforce, is another. But recognizing that the law that the lawyers enforce is backed by those who can afford them, made me see more clearly why people say that law enforcement is for the sake of protecting property by those who have it. The property owners who see themselves as the truest members of the community need protection from the property-less, the not-quite-so-fully-fledged members of the community. The property owners want police cars patrolling their streets. The people who own feel safer when they see law enforcement. The people who own put their money to work to give the law force, either in property taxes or in hiring a lawyer.
I was discussing this on social media, this idea that the law is a fiction, and a friend commented that it was time to resort to force. But, it became very clear to me in that moment, it’s all force. This is the reason that money should not count as speech in political life, because really, it’s the mechanism of force behind the law. If only some have it, then only those with money can put the law to work. That’s why inequality in a community that considers itself to follow the rule of law is a threat to the rule of law in fact. Now I find myself seeing the fiction of the rule of law everywhere I look. I also understand better why we are a litigious society because in some sense, we all recognize it’s a bit of a fiction. And I think we’re all a little pissed off about it.