Modernism, Polarity, and the Rule of Law

rules, the logic of reason, or the rule of law. We seem at the mercy of a universe of instances in which justice is singular, uncodifiable, MOSAIC 217-39 (Desmond Manderson ed., 2009); Nick Smith, Questions for a Reluctant Jurisprudence ofAlterity, in ESSAYS ON LEVINAS AND LAW: A MOSAIC, supra, at 55-75. 114. Barbara Johnson, The Surprise of Otherness: A Note on the Wartime Writings of Paul de Man, in LITERARY THEORY TODAY 13, 18-21 (P. Collier & H. Geyer-Ryan eds., 1990). 115. See, e.g., BEARDSWORTH, supra note 10; SIMON CRITCHLEY, THE ETHICS OF DECONSTRUCTION: DERRIDA AND LEVINAS (1992); Alletta Norval, Hegemony After Deconstruction: The Consequences of Undecidability, 9 J. POL. IDEOLOGIES 139-57 (2004). 116. AGAMBEN, supra note 41, at 53. 2012] 499 25 Manderson: Modernism, Polarity, and the Rule of Law Published by Yale Law School Legal Scholarship Repository, 2012 Yale Journal of Law & the Humanities unrepeatable, and spontaneous. That was exactly the logic that appealed to Schmitt and appalled Tamanaha. There is a second and countervailing element here. The Lawrentian polarities that tug at us require a constant listening and correction of received ideas. A "determinate oscillation" swings us between two irreconcilable poles-general and particular, prior rules and new circumstances-forcing us to rethink our rules, the meaning we give our words, the imagined "essences" of those words, and the purposes that are served by them. But in the end, the decision cannot wait-polarity, opposition, and contradiction are never completely resolved. The pull of singularity forces us to reflect on what the rule means and accomplishes in this particular circumstance. We are forced to reconsider, to question, to doubt. Our understanding of the rule is thus not static. The pull of generality forces us to account for the implications of our decisions for other circumstances. Our understanding of those circumstances is thus not unconstrained. The decision that we make neither surrenders to the rules nor abandons them; instead, it attempts to understand them. The decision that emerges-a legal judgment perhaps, or the practical application of a rule-will always be an unstable and imperfect response to these tensions. Unlike the romantics, however, we should never expect our decision to transcend or heal them. The judgment we make endeavors to reassess meaning and to question our assumptions, but the result, whatever it may be, is provisional and open to reconsideration at every moment. Our understanding of the rules may have been either shifted or confirmed by our situation. Present circumstances may lead us to reflect on the meaning of the rules we thought we knew, but on the other hand, the pressure of the future may lead us to hold, despite everything, to our previous interpretation. Either way, the new decision we make necessarily attempts to impose and to justify a new stability and generality on the swirling forces around us. Thus, we are constantly thrown from one pole to the other, from the singularity of justice back to the (re-)construction of rules. Of course, as soon as we are confronted with a new circumstance, the previous interpretation must generate new tensions and a new polarity pulling us in opposite directions again. Like the moon and the tides, the experience of polarity, of the impossibility of our ever satisfying contrary expectations, will always be felt as a tug and a repetition. B. The Necessity of Conversation Tamanaha thinks that the critique of modernity threatens to destroy the rule of law; Berkowitz think that the rule of law threatens to destroy justice. Both are wrong. Both misunderstand what the rule of law is about. Its value does not lie in the legal decision itself which is, as we have seen, [Vol. 24:475 500 26 Yale Journal of Law & the Humanities, Vol. 24 [2012], Iss. 2, Art. 1 http://digitalcommons.law.yale.edu/yjlh/vol24/iss2/1