Comparative Constitutionalism in a New Key

Authors

Paul W. Kahn, Yale Law School

Abstract

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is a nation under law, and law is a normative measure of all that it might do. That the polity should express the rule of law is a belief that has been present from the revolutionary foundation of the nation. The end of the Revolution was to be the rule of law. Mexico may have sought to institutionalize revolution. In America, with abolition of the monarch, law was to be king. In our Founding myth, Revolution and Constitution are tightly bound together as equal and linked expressions of popular sovereignty. The historical sources from which this understanding of law draws are not technical, but widely accessible. They are rooted in religious conceptions of ultimate meaning and Enlightenment understandings of rational perfectionism. The rule of law is our civic religion; it exists just at the intersection of faith and reason.

Recommended Citation

Paul W. Kahn, Comparative Constitutionalism in a New Key, 101 Mich. L. Rev. 2677 (2003).
Available at: https://repository.law.umich.edu/mlr/vol101/iss8/6