The Volokh Conspiracy
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A "Sympathetic Critique" of Law-Skepticism on the New Right
A "classical lawyer's" take on what law skeptics within the New Right get right and get wrong.
Harvard law professor Adrian Vermeule has posted an interesting and worthwhile essay at The New Digest responding to the growth of law-skepticism among some in the New Right (and, in particular though he does not say it, among many MAGA thought-leaders). While I do not share Vermeule's perspective, the essay is a worthwhile read. A few excerpts:
On one level, it is perfectly understandable that many on the New Right have veered towards versions of law-skepticism. It is a natural overcorrection to the world around them, one in which the fanatics and cynics of liberalism appropriate the "rule of law" for transparently ideological, sectarian and indeed partisan ends. In that world, our world, talk of "the rule of law" and "human rights" becomes a vehicle for enforcing grotesqueries of the liberal programme, as in a notorious USAID document during the Biden years that said the rule of law requires adopting gender ideology. In that world, our world, prominent law professors openly thirst to crush dissenters from legal liberalism, comparing them to the defeated Nazis. When told by both the legal left and by legal conservatives that authority in the sense of positive will, not truth, makes the law, and that law only ever enforces the will of some sovereign upon others, it is perfectly understandable for the New Right to think: "Very well then. Let us become the sovereign, and we will enforce our will upon our enemies, doing unto them what they have been doing unto us for years." If, as Carl Schmitt said,2 law under liberalism becomes a poisoned dagger with which factions stab each other in the back, it is not hard to think: better to be the one wielding the dagger.
However understandable, this attitude is indeed an over-correction. Finding themselves in a situation of tragic conflict in which the law has been corrupted by both the legal left and by legal conservatism in fundamentally similar ways, the New Right law-skeptics erroneously infer that there is no such thing as law at all, or at least that all law is just the expression of power. This is a non sequitur, akin to saying that if I discover that the judge before whom I appear has corruptly taken bribes from the opposing party, therefore there is not and never has been such a thing as honest judging. The New Right law-skeptics erroneously over-generalize, deriving speculative theoretical views from the grim realities of the unusual practical situation in which they find themselves. . . .
The basic over-generalization of the New Right law-skeptics — the left has wielded law as a weapon, therefore law is nothing more than a weapon of the powerful — is linked to a claim or set of claims that often arise in and around these issues. These claims urge that the rule of law is really the rule of men; that it is inevitable that some men will rule others, and that law not ultimately grounded in power is vain and ineffective; that any given people, constituted (in a small-c sense) as a political society, makes the law as an expression of themselves; and that order must precede law and provides the stable preconditions for law.
All these claims fall into the category of important but misleading half-truths. Of course human law is in part an expression of a given political community. But any concrete political community, in virtue of being also a human community, both makes its own particular law and also participates in the universal law, accessible to human reason. . . .
Overall, radical law-skepticism, whether on the New Right or the critical left, is wrong in itself, misguided as a practical matter, and impossible to reconcile with the broad sweep of the Western (or for that matter non-Western) legal tradition. It is a modernist innovation, just with a different political valence attached to it by the New Right than the valence it holds in liberal legalism. In contrast to both New Right and liberal views, Montesquieu spoke for the classical tradition, in this as in many other things, when he wrote that "Laws, in the most extended sense, are the necessary relations deriving from the nature of things; and in this sense, all beings have their laws: the divinity has its laws, the material world has its laws, the intelligences superior to man have their laws, the beasts have their laws, man has his laws." . . .
Law is real, and the rule of law is indispensable to a just and civilized political order; so our whole juristic tradition holds, until just yesterday. Now, neither the reality of law nor the necessity for the rule of law entail that the rule of law is the only thing we care about, or that the rule of law has no outer boundaries, or that the rule of law should be equated with the rule of courts, or that or that (negative) liberty is the only thing the law cares about, or that there are no hard cases. All these mistakes derive from tendentious attempts to appropriate law and the rule of law for various ideological, sectarian, or partisan aims; I and many others have criticized all of them. But it is an equal or even greater mistake to jettison law and the rule of law altogether, or to equate them with the will of the stronger. At a minimum, anyone who holds the latter views should have the candor to confess that they are standing radically outside the traditional mainstream of specifically juristic thought. Until late in the tradition, such views were only ever held by a small minority of heterodox theorists, few of them working jurists. Let us at least have no pose of legal classicism among the law-skeptics, left or right. And, perhaps in a fit of wild optimism, I still hope that the New Right law-skeptics will eschew such sterile and ultimately indefensible views in favor of the fertile ground of the tradition and the reason it embodies, properly translated and adapted to new conditions.
As they say, read the whole thing.
