What We Ask of Law

A minimal, reasonably uncontroversial demand of any legal system is that it should stabilize a polity against both the chance hazards of ordinary violence and sudden blows of extraordinary, destabilizing misfortune. Law in the contemporary United States, though, has not so far abated the lethal toll of violent crime, the serial mass shootings of children, the endless flow of racialized police violence, or even the toll of insurrectionary violence shadowing democratic politics. The gap between law's operation in practice and its ultimate aspirations toward social order-especially for the socially and economically marginal-offers a hint that something in our dominant working model of law, or its relation to an ideal of the rule of law, is awry or inaccurate.This Book Review reconsiders some presently dominant assumptions about how a well-functioning legal system works in light of new evidence of how law has operated across a wide historical and geographic panorama. This exercise in historical and cross-cultural contextualization has implications for our choice of a sound working definition of law, and for a clear understanding of the latter's relationship to broader rule-of-law ambitions. It also bears on whether law is likely to advance or retard emancipatory projects of social reform, especially those pertaining to racial injustice. The spur for this reconsideration is Professor Fernanda Pirie's book, The Rule of Laws: A 4,000-Year Quest to Order the World, an extraordinary and ambitious effort to fuse historical, anthropological, sociological, and legal learning across continents and eras into a single narrative arc. Starting with the historical materials eloquently marshalled by Pirie, I refine a new "polythetic " definition of law that is distinct and different from the demotic definition of law commonly used in popular and juristic discourse alike. To illuminate its distinctive form and implications, I bring this polythetic definition into conversation with relevant elements of the leading jurisprudential theories of H.L.A. Hart and Lon L. Fuller. This is done with the aim of sparking new ways of thinking about the relation of law to the state on the one hand, and about legalistic aspirations of the rule of law on the other. In concluding, I consider the implications of the polythetic definition of law for one especially pressing contemporary problem-the question of how law relates to projects of maintaining racial hierarchies or realizing their reform.