Adam MacLeod (St. Mary's University Law School) has posted Critical Theories, Justice, And the Rule of Law (Texas A&M Journal of Law & Civil Governance, volume 1(forthcoming)) on SSRN. Here is the abstract:
An increasing number of legal scholars and activists now identify law as an impediment to justice that must be deconstructed. The deconstructionists tear down the resources we need to sustain the rule of law. And as they deconstruct law, they also deconstruct justice itself. Against deconstructionism, the classical tradition of jurisprudence that gave us our fundamental law affirms that we can know justice and that we can achieve justice through the establishment of law.
That classical tradition made possible the conviction that law is not a mere product of power, as the deconstructionists assert. And that conviction made the rule of law possible. The critical essence of the rule of law is that at least some part of the law stands above everyone. In deconstructionist terms, law is not a "system" or "discursive regime" created by raw power. Some law is natural. This is why the rule of law requires equity. But equity is subsidiary to law. When exercising the power of equity, judges should discern the "true sense of the law," presuming that the legislatures who laid down the legal rule know the natural law and intended to achieve the reasonable, right, and just result in every case. Equity presupposes what the Christian philosopher Thomas Aquinas called the "rectitude of law [and] of legal justice."
The rule of law is not perfect. But it is the best way we have ever found to achieve justice. The duty to obey the law is a duty of justice.
