Impeachment, Performance Art, and the Rule of Law

Jessie Allen, University of Pittsburgh School of Law, has made available via SSRN Blind Faith and Reasonable Doubts: Investigating Beliefs in the Rule of Law, published at 24 Seattle University Law Review 691 (2001). Here is the abstract.

In the winter of 1998-99, I was in a graduate law program designed for future law teachers. I found myself thinking with new urgency about old questions: Can our legal system produce results that are at least partly independent of political and economic power? Or does the law always wind up reproducing and reinforcing the powers that be? In short, is there any such thing as the "rule of law"?

By a bizarre accident of timing, my personal inquiry into rule of law issues coincided with a new popular interest in these matters brought about by the Clinton impeachment hearings. Suddenly, there were almost daily references in the news media and on the floor of Congress to the sanctity and vulnerability of the rule of law in our democracy. I was particularly struck by the quasi-religious tone that prevailed. It seemed paradoxical to me that this most rationalist ideal should generate an aura of the sacred, and the apparent contradiction provoked me to look more closely at what we mean when we talk about believing in something.

While considering what it meant to preach the rule of law as an ungrounded article of faith, I began to wonder if there was anything about the nature of legal practice that might ground a more limited belief in law's ability to constrain power. Watching the impeachment proceedings on television, I found myself thinking about an earlier period in my life. I used to be an actress and a performance artist. It occurred to me that there were certain similarities between legal and theatrical practice.

Perhaps the formal conventions that radically limit behavior on stage and in court might be related to the decisional constraints that constitute a rule of law. That possibility, in turn, led me to ponder various kinds of limits evoked by the figure of a blind, hence limited, justice. In the end, the formalities of legal procedure seemed more central to the value of a just legal system than I had previously thought. Somehow, investigating my own tenuous -- but apparently unshakeable -- belief in a rule of law ideal changed the way I saw legal practice. This Article reports that investigation.

Download the article from SSRN at the link.