Realizing the Rule of Law in the Human Subject

Abstract

The dominant understandings of the rule of law, legal interpretation, and judging are riddled with the untoward consequences of misunderstanding or ignoring the human subject. This Article takes that subject as the starting point, and asks how he or she can become lawful. Cutting a middle way between the usual analyses which look exclusively either to language or rules as the guarantor of legal objectivity, or to the subject as the intransigent impediment to lawfulness and objectivity, the Article identifies the necessary and sufficient conditions of an achievable rule of law by developing the implications of human subjects' desire for the real (and for conduct consistent with it). Not even law is so objective as to get by without the mind of the human subject, and the Article shows how human subjects become lawful exactly by becoming authentic subjects. The analysis proceeds by way of a deconstruction of jurisprudences, such as Ronald Dworkin's and Justice Scalia's, uninformed by the normative implications of human subjectivity itself.