The Rule of Law in the 21st-Century United States: (Sub)Cultures and Kulturkampf

1. The Standard Recipe for Concocting the Rule of Law (sans Culture)

Writings on the rule of law say much about the “ingredients” needed to concoct the perfect recipe for the resulting dish. As socio-legal scholar Martin Krygier observes, the core assumption here is that “the ingredients of the rule of law are legal institutions, rules, and official practices.” ¹⁴ These ingredients inhabit an important subculture of the rule of law that constitutional scholar Tom Ginsberg labels the “rule of lawyers” ¹⁵ and is in international discourse referred to as the “the justice sector.” This recipe—heavily influenced by analytic legal philosophy, legal positivism, and political science—promotes the rule of law as both a near universal, and universally achievable, ideal.

The traditional Western ingredients in this recipe have been handed down from Aristotle through Montesquieu, to Dicey, and then to Hart, Fuller, and Raz. More recent innovations, such as those by Bingham ¹⁶ and Waldron, ¹⁷ provide either new tweaks or a few additional ingredients. The main idea behind most, if not all, of these conceptions, is of the rule of law as a governance principle which aims to limit power by holding all persons (in and outside of government) to account. It also often includes adherence to a set of formal requirements (or desiderata) for validity and effectivity in the legal system. Here, for example, is the recipe for a “thin” conception of the rule of law: all persons are formally equal under the law, including those holding public power; all persons are held accountable under the law; fair and non-biased legal processes are guaranteed; public standards exist to guide the creation, enactment, revision, and enforcement of all laws; laws and procedures are certain and publicly known; the judiciary has been instantiated as an independent branch of government; and, a cadre of competent representatives provides legal services for affected persons. ¹⁸ More recently, “thicker” requirements stipulate commitments to human rights as well as to access to justice. ¹⁹

The conventional rule of law model has been exported ²⁰ around the world as part of legal reforms and transplants by international bodies, either to further development goals—for example, the “World Bank’s Rule of Law recipe book” of indicators ²¹ —or to assist in post-conflict or post-authoritarian regime transformation. ²² Instantiation has been uneven, both because the recipe has lacked the right ingredients and because the cultural environment has not been fully taken into account.

The rule of law crisis in the United States compels us to move beyond its conception as an abstract, analytic “solution-concept” that only serves to confine the infinite debates about its essentially contested nature to the specific content in its recipe. ²³ Instead, an ethically thicker, socio-cultural understanding of the rule of law is required. ²⁴ This alternative perspective shifts one’s focus and motivates us to inquire into the practical challenges for realizing or reviving the rule of law. Here, the rule of law is seen as a “fact/value composite” that generates “mixed normative empirical questions” about how to instantiate it in a particular society. ²⁵ Success is not assumed; rather, risks and failures must be factored in. Culture, it turns out, plays a key role in this conception of the rule of law and the desired outcomes.

1.1. The Rule of Law Through a Socio-Cultural Lens

Employing this alternative socio-cultural lens, Krygier argues that in order to understand the rule of law, we need to know what it is for instead of assuming that it already provides the solution. That is because it is a teleological concept, not (only) an object, or an anatomical structure, or a morphology of legal institutions. ²⁶ As a teleological notion, the rule of law concerns “socially patterned behavior, shared and internalized norms.” ²⁷ It is relative and variable. Krygier’s alternative distillation of the essence of the rule of law can be understood simply as this: the reduction of, and effective limits on, the exercise of arbitrary power, no matter where it is located in society. ²⁸

Arbitrariness is the chief anti-value of the rule of law and the prime facilitator of domination as a mode of governance. ²⁹ Many conventional accounts, contemporary republicanism in particular, would not disagree with this articulation. But, according to Krygier, there is more. Several outcomes that a socio-cultural conception of the rule of law seeks to achieve include: an environment not characterized by fear and insecurity; the prevalence of a feeling of dignity grounded in the knowledge that one is not an object of power; and, a sense of efficacy such that one can coordinate one’s actions with others (if one chooses) with clarity and confidence. The picture here is less about the rule of law per se than what is feels like to live in a rule of law culture that results from non-domination. That is a key difference.

Certain kinds of political orders inherently cannot instantiate these values while, conversely, liberal democracies and a few other regimes have a good shot at approaching the ideal. Krygier describes political orders where law does not and cannot rule as “tyrannies, illiberal democracies, failed states, states strong enough to act arbitrarily but too weak to tame power, and societies with extralegal monsters beyond control by law.” ³⁰ For polities to avoid the fate of becoming an anti-rule of law order, the rule of law needs to be “in sync with local ecologies.” ³¹ And, those denizens of the “local ecology” must possess a “deep-seated societal commitment to the rule of law as a worthy ideal” which, “[t]hough sustained through institutions, the development of this sort of commitment is . . . a question of local political struggle and legal-cultural development.” ³² Like classical philosophies of the rule of law, Krygier’s conception acknowledges that a rule of law culture can both degenerate and indeed be lost. Once lost, it is difficult to recover—perhaps as difficult as attempting to grow a rule of law culture in a local ecology where it did not exist before.

Despite the fact that professional lawyers and a rule of law culture have been around since 1200 CE in the Western world, ³³ law schools (at least in Canada) have not been particularly good at articulating the cultural dimension of the rule of law, other than to reaffirm the narrow view where legal culture is closely identified with the so-called justice sector or the lawyers’ rule of law. ³⁴ This is not all the law’s fault. ³⁵ Controversies and disagreements continue to swirl around the idea of culture because to talk about culture is to invoke a history of thought about colonialism, civilization, modernity, progress, and contentious disciplinary methods. ³⁶ For an archaeologist, culture is material; for an anthropologist it is a symbolic meaning system; for a political scientist, it is a dynamic social structure maintained over time; and for a biologist, it is tissue. As literary critic Terry Eagleton summarizes the situation, culture can mean utopian critique, a way of life, and an artistic creation. What connects each, in his view, is negative: “all three are in different ways reactions to the failure of culture as actual civilization—as the grand narrative of human self-development.” ³⁷ Lacking this grand narrative in modernity, we now talk about culture in the dismal present, or we narrow our perspective to talk about a specific culture in a particular place and time. Consider also the fact that cultural critic Raymond Williams’s venerable Keywords: A Vocabulary of Culture and Society ³⁸ does not even contain the words justice, law, legal, or rule of law. Lastly, to take another example, law and society scholar Brian Tamanaha ends his overview on the history and elements of the rule of law with an attenuated discussion about the importance of culture:

For the rule of law to exist, people must believe in and be committed to the rule of law. They must take it for granted as a necessary and proper aspect of their society. This attitude itself is not a legal rule. It amounts to a shared cultural belief. When this cultural belief is pervasive, the rule of law can be resilient, spanning generations and surviving episodes in which the rule of law had been flouted by government officials. . . .

When this cultural belief is not pervasive, the rule of law will be weak or non-existent. ³⁹

The legal academy valorizes the rule of law and affirms that a successful cultural dimension is crucial, but the details of this culture and how it comes about or how it might be eroded or lost remain murky at best. A more robust legal scholarship about a culture of the rule of law requires greater interdisciplinary heft. One could, for example, look back to legal historian E. P. Thompson’s fine socio-cultural work on the rule of law—work that has informed both the socio-legal perspective on the rule of law as well as Krygier’s own conception of the rule of law. ⁴⁰ Drawing on Thompson and Krygier, subsection three highlights the interconnections among values, concepts, and practices within the cultural conception of the rule of law.

1.2. The Rule of Law as a Cultural Achievement of Significance—Especially for the United States

Twice, in his magnificent Whigs and Hunters, a not “starry-eyed” ⁴¹ Thompson made his famous, and famously controversial, pronouncement that the rule of law is an “unqualified human good.” ⁴² His defense was grounded on the necessary recognition of the cultural dimension of the rule of law:

This cultural achievement—the attainment towards a universal value—found one origin in Roman jurisprudence. The uncodified English common law offered an alternative notation of law, in some ways more flexible and unprincipled—and therefore more pliant to the “common sense” of the ruling class—in other ways more available as a medium through which social conflict could find expression . . . some part of the inheritance from this cultural moment may still be found, within greatly changed contexts, within the United States or India or certain African countries. ⁴³

Thompson’s claim drew on his historical analysis of the rule of law as a legitimating ideology that required widespread belief in the goodness of constrained power as well as the ability of law to constrain power as a matter of fact. In order not to be perceived as a complete sham, the rule of law sometimes required rulers to actually be constrained. The legitimating function of the rule of law, then, became part of the self-identity of rulers and ruled. The eighteenth century courts were—and clearly continue to be in the contemporary United States ⁴⁴ —sites where the rule of law rubber hits the rule of law road by imposing restraints on those in power. Thompson worked with the familiar minimal conception of the rule of law, laid out above, which, of course, also permits great inequity to co-exist.

Whigs and Hunters also reminds us of another important cultural dimension of the rule of law: that it is the inheritance of political struggle, sometimes revolutionary, sometimes part of a “radical bourgeois tradition.” ⁴⁵ A rule of law culture, especially within a democracy, possesses a porosity ⁴⁶ where legal subjects may be afforded the possibility of articulating their claims in a forum where they can demand a response from those in and with power. This “bottom-up” demand we now call access to justice. They can ask the law to demonstrate that the use of power was both justified and justifiable. ⁴⁷ Since the rule of law is a product of these historical political struggles, it reinforced for Thompson the point that law matters, ⁴⁸ even when the rule of law doesn’t deliver on its promise. Lastly, the rule of law was truly “common”—forming part of ordinary life as a shared everyday belief and practice. It was not a distant ideal but, rather, a living and lived conviction.

According to Tamanaha, a “widely shared cultural belief that the law should rule is the essential element of the rule of law—and the hardest to achieve.” ⁴⁹ He goes on to describe why and how this cultural belief may or may not become widely shared in a particular society:

In many societies, the government is distrusted and recourse to the law is feared or avoided. Negative views towards the law are common where the law has a history of enforcing colonial or authoritarian rule, where legal officials are perceived to be corrupt or inept, where legal professionals are distrusted, or where the content and application of the law is seen to be unfair or identified with particular interests or groups within society or with the elite. ⁵⁰

It is not difficult to see the supporters of MAGA and (now defunct) DOGE in this excerpt: distrustful of the state and legal professionals across the board, as well as certain that the content and application of the law in the courts and in the administrative state is unfair, partisan, and/or corrupt. Such a view pervades Trump’s Executive Action entitled “Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce.” ⁵¹ This order approves a proposed new rule made by the Office of Personnel Management that reclassifies approximately 2 percent of the federal civil service as “at-will” employees, thereby making it easier to fire them without “lengthy procedural hurdles.” ⁵² The initiative targets so-called “career civil servants” who “oppose presidential politics and imposes their preferences” and identifies the Department of Justice Civil Rights Division and the Department of Education as prime examples of unaccountable and corrupt “deep state” agencies. ⁵³ Such actions violate both legal and cultural understandings of procedural fairness and undermine the institutional independence and the cultivation of expertise that is necessary for the civil service under the separation of powers. The Supreme Court of the United States issued a split decision about the validity of these actions and disagreed over the legal meaning of the stay of lower court decisions. ⁵⁴ The dissenting judges held that the actions were invalid and that the stay amounted to an overturning of administrative law precedent. This dissent—the same dissenting judges in Loper Bright—maintained that the majority “flips the script” ⁵⁵ in order to re-write precedent here (as the majority did in Loper Bright), a strategy which enables the majority to affirm the President’s ability “to take the law into his own hands.” ⁵⁶ According to the dissent, the consequences are twofold: the majority’s order “allows the President to overrule [precedent] by fiat” ⁵⁷ ; and, it also confirms the majority’s own judicial hubris and continued de facto transformation into “the country’s administrative czar.” ⁵⁸

Legal philosopher Joseph Raz also insists on the necessity of this broad cultural acceptance: “Finally, to sustain the independence of the courts, police, legal profession and civil service one requires a pervasive common culture, bridging the differences between the subcultures of the country. One requires a culture of legality, of respect for the law, and a willingness to abide by it even when one loses by it.” ⁵⁹ Many Americans have lost faith ⁶⁰ and no longer identify with the conventional rule of law or see that it shares their values. They support many of the directives—like the one above—that President Trump has initiated. This is a serious problem.

All rule of law orders have weaknesses and flaws. When scrutinizing a rule of law order, Raz advocates for humility, a kind of counter-Pollyannaish perspectivity: “It is . . . not an ideal free from blemish. It brings in its wake the problems of denial of effective access to the courts and of alienation from the law. To some extent, there is no escape from these blemishes. We have to be chastened by an awareness of their existence, do our best to minimize them, and be modest in our pride in the rule of law.” ⁶¹ If overconfidence leads us to assume that we “have” the rule of law in some concrete sense, then how will we know when our practices are no longer up to snuff or when it needs to be defended from deterioration if all we look to are the narrow indicators of a rule of law culture—lawyers, judges, litigation, and courts? Traditional accounts and attitudes will not provide full guidance for either inquiry or remedies.

Pervasive distrust and resentment have resulted in alienation from the law for some, and for others, it is the rejection of the conventional rule of law culture that is closely associated with Washington, liberal elites, and/or left-leaning movement politics. Speaking of the Marxists’ complete dismissal of the rule of law as a bourgeois sham, Thompson wrote ominously of this error: “To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge . . . is a self-fulfilling error. . . . It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger.” ⁶² I will return to the importance of political struggle for the culture of the rule of law later in the section III, but I will now turn to consider one contemporary subculture of arbitrariness.

2. Arbitrariness: The Chief Anti-Value of the Rule of Law

Arbitrariness seems as hard to pin down as the rule of law—a problem that may be seen as a perverse meta-irony. ⁶³ Its political and legal manifestations have been documented over the centuries, but the concept is weighed down and made less clear by older and perhaps inapt terminology (e.g., capriciousness, whimsy). When seen through a modern lens, the historical exemplars of arbitrary power may appear outdated or ethnocentric (e.g., the Greek despot, the Ottoman sultan, the Persian emperor, the owner of enslaved people). ⁶⁴ Arbitrariness can also be confused with close cognates (e.g., randomness, chance, bad luck), which lack the essential dimension of power misused. And, we would also have to acknowledge that arbitrariness appears permissible in some spheres of life—for example, in matters of taste and aesthetics ⁶⁵ —and that it is also used as a neutral term in linguistic and mathematical discourse.

For this author, the civic republican tradition’s understanding of freedom as non-domination offers the best understanding of the core of arbitrariness. ⁶⁶ When those in power are able to dominate politically, domination takes a variety of familiar forms: unilateralism as the negation of other-regarding behavior (and therefore a resulting government which is not deliberative, responsive, or reflexive); private or sectional interests overriding public goods and interests; and rejection of the all-affected principle. ⁶⁷ In each of these modes, the power-holder disrespects “something that ought to have been respected, such as an interest, expectation, or right that is a genuinely ‘respect-worthy thing’” held by relevant persons. ⁶⁸ Such violations offend dignity. ⁶⁹ The republican tradition’s attention to institutions also means that it takes seriously institutional conditions that nurture arbitrariness and illegality.

Just as it shapes actions and institutions, arbitrary power can also shape character and modes of conduct. It possesses a psychological dimension. Fear and subservience are well-understood psychosocial effects of the use of arbitrary power on individuals. ⁷⁰ Political philosopher Jordan Jochim, for example, returns to Aristotle via Foucault to unpack how the classical tyrant uses arbitrary power to form subjects who have “small thoughts,” distrust one another, and have an incapacity to act together. ⁷¹ Small-minded subjects are also “small-souled,” understood as persons who are ignorant of their worth (itself an effect of domination) and prone to fear and distrustfulness of others (dispositions also cultivated through the use of arbitrary power). ⁷² Aristotle’s arbitrary ruler tries to incapacitate citizens’ thinking by isolating them from each other and “undermining the spaces for ‘speculative deliberation about what constitutes the good life, until people cannot even raise questions about alternatives to the status quo’.” ⁷³

The Trump administration’s confrontations with the Smithsonian complex of museums provide an apt example of this kind of arbitrary power. Prior to 2025, the Smithsonian had operated independently from the executive branch. While governmental in nature, this institutional complex was designed to be separate from the three branches of government. It is overseen by a Board of Regents composed of representatives of each branch of national government (e.g., the Vice President, the Chief Justice, three members of the Senate, three members of the House of Representatives) and nine citizen agents. But, as part of MAGA’s anti-Equity, Diversity and Inclusion views, and following President Trump’s own perspectives on what US heritage and history means, the President directed his administration to review this unique national, public institution under the executive order entitled “Restoring Truth and Sanity to American History.” ⁷⁴ This directive mandates a “focus on the greatness of the achievements and progress of the American people” and, if made effective, will re-write history just like we have seen before (at least for those of us who have read George Orwell). With no irony, this order claims to be “Saving our Smithsonian” so that it remains a place where “individuals go to learn—not to be subjected to ideological indoctrination or divisive narratives that distort our shared history.” But this apparent “shared history” disavows the existence of racism and other inglorious historical moments. As Trump posted on social media: “The Smithsonian is OUT OF CONTROL, where everything discussed is how horrible our Country is, how bad Slavery was. . .We have the ‘HOTTEST’ Country in the World, and we want people to talk about it, including in our Museums.” ⁷⁵ A subsequent White House article entitled “President Trump Is Right About the Smithsonian” ⁷⁶ continues in the same vein, offering a list of offending exhibits, programming, and artwork. The list, however, becomes oddly personal with a particular complaint targeting the National Portrait Gallery for its stop-motion animation exhibit of Dr. Anthony Fauci, one of President Trump’s prime antagonists, during the coronavirus pandemic.

Supporting bills ⁷⁷ have been introduced to make this order more effective and long-lasting, although it is unclear whether this review can actually be enforced under the separation of powers, since many of the actions the Vice President is directed to undertake do not rest solely in his authority. Indeed, the Smithsonian’s Board of Regents may have scope to resist, supported by congressional processes, but the directive is also attempting to alter past congressional practices by appointing citizen regents to the Board of Regents who are “committed to advancing the policy of this order.” This, apparently, is what the administration calls “Americanism—the people, principles, and progress that define our nation.” ⁷⁸ Similar actions to control the John F. Kennedy Center for the Performing Arts—including introducing the Make Entertainment Great Again Act of 2025, ⁷⁹ which proposed renaming the center the “Trump Kennedy Center”—provide a sobering counter-example. As legal philosopher Lon Fuller astutely observed about the tyrant: “The actual tyrant does not ordinarily undertake to establish new social institutions; standard practice in his calling is to exploit and pervert those he finds around him.” ⁸⁰

Democracy and the rule of law rely on this cultural capital and knowledge as part of their collective psyche. As socio-legal scholar Denis Galligan argues, law is constitutive in the sense that it frames peoples’ thoughts and actions both directly and indirectly and is “received into social life and social consciousness through the mediation of social spheres.” ⁸¹ Institutions like the Smithsonian are one such mediating social sphere. This arbitrary administration seeks to re-write history, re-program memories, whitewash the past, and re-design Washington’s once robustly independent institutions of cultural capital and knowledge. If these executive orders are successful, Americans will surely learn a smaller history, representing a smaller group of people, and from institutions that seek to inculcate small minds and small souls. The historical role of the rule of law in the United States will be misrepresented and misunderstood. Unless reversed, Americans will not benefit from mutual historical knowledge of each other and will live in a state of fear, ignorance, and distrust instead of civic friendship.

2.1. The Private Side of the Rule of Law and Its Associated Subculture of Arbitrariness

The conventional rule of law project focuses on the state. Legal scholars Lisa Austin and Dennis Klimchuk call this the “public law presumption” in scholarship about the rule of law. ⁸² Historically, this makes sense given the monopoly hold on public power that the state wields, and the attendant risks that this control produces for members in a political community. As feminist legal scholar Robin West writes, when looking at the historical arc of theorizing about limited government: “The state in this scenario, is at best a necessary evil but at worst, when unrestrained by law, an unrelenting nightmare. It is far more powerful than the individual, and it has a license to inflict harm, stigma, punishment and liability.” ⁸³ These traditional concerns, combined with a narrow focus on judges and lawyers as key components of a rule of culture, overlook or downplay other dangers that are equally important.

Throughout the twentieth century, the United States has been viewed as a (flawed) model of a rule of law state. Contemporary American conservatives think otherwise when they consider the unlawful (in their eyes) growth of the administrative state. Such a development is viewed as undermining a rule of law state, and they reject the very idea of the administrative state as a legitimate—let alone a fourth—branch of government. As an administrative law scholar, I have witnessed the transformation of what has been a merely strong desire to dismantle the welfare state into an actual politico-legal project materializing in real time. One driver of this massive change, sociologist Philip Selznick suggests, has been the confrontation of one cultural understanding of the rule of law that comports with a modern welfare state with a different cultural understanding that rejects it tout court:

The welfare state is a manifestation of positive government in quest of social justice. Among contemporary American conservatives such a regime is perceived as incompatible with the rule of law because it is mainly substantive, not procedural; because it is an engine of redistribution, not a neutral enabler of private choices. ⁸⁴

Looking at the United States from Canada, it has always seemed to this observer that naming the heads of various executive-branch officials “Czars” perfectly illustrates widespread ambivalence and indeed antipathy toward the administrative state. ⁸⁵ Under President Trump and his administration, no compatibility can exist between the classical rule of law and the welfare state. Building on deep cultural divisions and widespread feelings of alienation, a rupture has occurred. Popular support mirrors that found in the United Kingdom before the Brexit referendum. As legal scholar Christopher McCrudden describes the British “Take Back Control” movement at that time: “anything that stood in the way of ‘getting Brexit done’ was to be sacrificed, including the Rule of Law.” ⁸⁶ All the king’s horses and all the king’s men cannot put “Leviathan” together again—not because they can’t, but because they don’t want to. Indeed, like-minded Americans are happily picking up their own chainsaws to assist the Trump administration with its takedown.

2.2. A Government of Privateers

The reins of state power, however, are now held by those who come from a different culture—that of the private sphere and the market. Recall that the rule of law is not only about constraints on the exercise of arbitrary public power, but private power as well, though, as noted above, this is downplayed in conventional accounts that focus on the state. ⁸⁷ In this subsection, the metaphors for arbitrariness do not come from the domain of public law—absolute monarchy, authoritarianism, fascism, tyranny—but, rather, from a different age with a notorious form of private power. This would be the late seventeenth and early eighteenth centuries where the so-called Golden Age of piracy flourished for fifty years. ⁸⁸

Despite its short duration, the cultural legacy of this period extends beyond Halloween, Treasure Island, Peter Pan, and Disney’s Pirates of the Caribbean franchise. Imagine that these pirates have seized the ship of state. And, instead of Captain Blackbeard, we might imagine a Chief of the Ship of State who goes by the moniker Captain Orangeskin. Here, the corporate pirates, under the leadership of Captain Orangeskin, have given themselves a broad “government commission” authorizing them to go beyond terrorizing merchant shipping to also include plundering valuable state goods and finagling state contracts and relationships. ⁸⁹ We could then link this Golden Age of piracy to US domestic politics in the late nineteenth-century Gilded Age of Robber Barons, for an analogous example of how powerful business interests profited from conflicts of interest and corruption, the decline of regulation, and the ability to privatize public resources. ⁹⁰ These contemporary pirates participate in a different legal subculture—one that valorizes arbitrariness and the unfettered exercise of private power, such as that shown on the TV series The Apprentice. This subculture is actively hostile to the very idea of restraints on power. The legacy of these Golden and Gilded Ages—and the reality that the methods of arbitrary private power control the reins of increasing arbitrary public power—provide a plethora of apt descriptors for today’s rule of law woes: pirates and piracy, (cons)piracy, privateering, buccaneering, filibustering, plankwalking, and freebooting. The genre for today’s ruling pirates, however, is neither romance nor adventure.

Corporate actors are very good at both avoiding obligations and manipulating and evading rules to achieve the results they want. This is what tax law teaches us. Tax law scholar Michael Graetz documents how the antitax movement in the United States transitioned over time from the fringe to the mainstream—a trend that mirrors the rise of MAGA. The anti-tax base and their elite leaders are united by an admiration for Ayn Rand, a love of libertarian-style freedom, and a rejection of tax increases and distributive justice. This is the “glue” that holds together these “disparate coalitions” within MAGA together. ⁹¹ The movement, which is also anti-administrative state, clings to discredited economic claims that lower tax rates result in economic growth and lower federal government spending as well as a circumscribed conception of freedom as freedom from government—a belief which ignores how market rewards are distorted. But freedom does not extend to all. Just like MAGA, the antitax movement is socially conservative: “Many antitax advocates and political leaders who insist Americans’ liberty requires freedom from taxes want to have the government limit core values such as who people can marry, what schools teach, and who makes decisions concerning control over people’s bodies, just to name a few.” ⁹² Supporting these movements are well-funded think tanks. Graetz notes how think tanks used to lean middle to left politically in the 1970s, but between 1975 and 1995, almost twice as many conservative think tanks emerged as liberal ones. ⁹³ Both Graetz and legal scholar Eric Posner locate the origins of current popular dissatisfaction with government and the constitutional order in the late 1960s and confirm that Trump “is both a symptom and the culmination of this long-term trend.” ⁹⁴

While the anti-democratic, illiberal, and arbitrary elements of the American Constitution have always existed, it took a very bad actor like Trump to fully realize their potential. ⁹⁵ Historian Mogens Herman Hansen argues that the monarchical or “kingly” element of modern democracy has become more prominent in our times. He, however, provocatively suggests that the desire for an autocratic “strong leader” does not arise out of this historic monarchical element but, rather, has been imported from the world of business and the top-down management style in modern corporations. ⁹⁶ West also highlights how the thin conception of the rule of law, and its emphasis on certainty and predictability, supports private law’s “generally regressive conception of legalism that protects market-based liberties but little else.” ⁹⁷ A culture of the rule of law that accounts for the arbitrary exercise of private power (and especially private power that becomes fused with public power) does not “ignore the ways in which the law expresses the will of the state to protect the weaker parties harmed not by the state but by stronger private entities—employers, landlords, union bosses, private criminal gangs, oppressive church authorities, abusive parents or spouses, too-powerful private associations, and the like.” ⁹⁸ Enforcing these protections was, of course, a key function of the administrative state. For West, a concept of the rule of law that does not capture its two faces—public and private—risks rendering the ideal no more than a “legitimating mask of an increasingly insane and psychopathic sovereign beast.” ⁹⁹

Executive Order No. 14290 “Ending Taxpayer Subsidization of Biased Media” ¹⁰⁰ illustrates the Trump administration’s use of arbitrary power to take over public space and goods. This order abruptly rescinded more than $1 billion in funding for the nearly sixty-year-old Corporation for Public Broadcasting, funding which supports National Public Radio (NPR) and the Public Broadcasting Service (PBS). For decades, public television has been a shared cultural connection between Canada and the United States with Canadians treasuring and financially supporting programs such as Sesame Street (1969), Mister Roger’s Neighborhood (1970), NPR (1970), Masterpiece Theatre (1971), The Electric Company (1972), Nova (1974), and Masterpiece Mystery (1980). The order states that government funding of news media is “not only outdated and unnecessary but corrosive to the appearance of journalistic independence” and that neither NPR nor PBS presented “a fair, accurate, or unbiased portrayal of current events to taxpaying citizens.” A White House “fact sheet” further claims that NPR and PBS “have fueled partisanship and left-wing propaganda” and are no longer necessary since today’s “media landscape is filled with abundant, diverse, and innovative news options. . ..” ¹⁰¹ Long threatened, but not acted upon until now, the Trump administration and its supporters have hated the very idea of state-supported public broadcasting because it serves a cultural function similar to the Smithsonian and public libraries in providing and supporting the kinds of knowledge essential for a democratic rule of law culture.

Their attack, however, has broadened out to include mainstream media with the canceling of CBS’s The Late Show with Stephen Colbert and Trump’s demand that ABC fire late night host Jimmy Kimmel because of his targeted political humor. The associated culture of arbitrariness is best represented here by the current Chair of the Federal Communications Commission, Brendan Carr, a member of the Heritage Foundation and an ally of Elon Musk, who appears willing to use lawsuits, adverse regulatory rulings, and investigations to control and intimidate both public and private media outlets.

The diversity—or perhaps better termed fragmentation—of media sources will continue to undermine public broadcasting and the “vast wasteland” that commercial broadcasting spawned in the 1960s will infinitely expand in the 2020s. Without federal funding, the CPB will reduce its staff by 70 percent and close 1,500 local public stations thus ending the long-standing universal service guarantee for Americans living in rural, remote, and tribal communities. ¹⁰² But, as Republican Senator Roger Marshall (Kansas), commented: “Look, if those stations want to stay open and they can make it, I wish them the very, very best. But, again, in the backdrop of a country that’s taking in $5 trillion, but spending $7 trillion a year, I think that this is one of the niceties we can do without.” ¹⁰³ FCC Chair Carr echoed this sentiment saying: “Look at what is happening. NPR has been defunded, PBS has been defunded, Colbert is getting canceled. You’ve got anchors and news media personalities losing jobs downstream of President Trump’s decision to stand up. He stood up for the American people. The American people don’t trust the legacy gatekeepers anymore.” ¹⁰⁴ Damn the torpedoes, the FCC’s desired “course correction” for the ship of state runs full steam ahead. The treasure that is the shared culture brought by public broadcasting, and other guarantors of quality media, has indeed been plundered, but the key question is whether or not public broadcasting can be salvaged. While supporters can continue to provide funding to their local PBS stations, the future does indeed look bleak.

The limitations of the conventional conception of the rule of law that relegates its associated conception of arbitrariness to the public sphere cannot fully capture this contemporary context where the arbitrary power that exists in the private sphere has now captured and controls the public sphere, resulting in multiple, overlapping forms of arbitrariness in both spheres.

3. What Is Your Rule of Law Culture and Heritage?

As discussed in Section II, some of these local ecologies or subcultures embrace arbitrariness. Others only weakly support the state due to perceived and persistent rule of law failures. Three examples of weak support come to mind. ¹⁰⁷ One can first think of the loss of faith from racialized communities because of the arbitrary treatment their members have experienced at the hands of the police and officials from the Immigration and Customs Enforcement agency. Recurring abuse of police powers and penal practices has fueled a progressive critique of the rule of law by the Black Lives Matter movement as well as from scholars criticizing the carceral state. The second example is the complicated relationship between religious communities and the state in the United States. To borrow terminology from Robert Cover, these religious subcultures can perceive their relationship with the state to be more jurispathic than jurisgenerative. ¹⁰⁸ Antipathy toward government animates the dreams of a Christian nationalist subculture’s dream of a rule of God state, not a rule of law state. Canadian author Margaret Atwood’s The Handmaid’s Tale presents one such dystopian dream. The third example is the more general and long-standing anti-authority strand exhibited in American popular culture and represented by the legacy of the 60s counterculture, various venerated anti-heroes (i.e., in the gangster and western genres, in comic books, and numerous characters from the big and little screens), the pseudo-law movement, and the widespread libertarian distaste for “big” government and the administrative state.

A different subculture that purports to support the rule of law—or, perhaps better termed the law of rules—is that of legalism. ¹⁰⁹ It seems to Canadians that the popular culture of both the United Kingdom and the United States are fixated on law and order, a kind of performative legalism: fictional detectives, sleuths, and inspectors abound on the one hand; police procedurals and forensic crime dramas on the other; and, shows about being a law professional or a judge (or both) usually at trial, on the third. ¹¹⁰ From a socio-cultural perspective, more than one rule of law mentalité exists and inconsistently ranges from the rejection of rules and official authority to the love of rules and official authority, with numerous points in between.

Modern pluralism, then, presents a significant downside for the culture of the rule of law, for, as critical legal studies scholar Roberto Mangabeira Unger has argued about our postliberal Western societies:

For the rule of law has truly been said to be the soul of the modern state. The study of the legal system takes us straight to the central problems faced by the society itself. . . . [in a postliberal society] the state’s pretense to be a neutral guardian of the social order is abandoned . . . private organizations are increasingly recognized and treated as entities with the kind of power that traditional doctrine viewed as the prerogative of government. People may become more conscious of what was always partly true, though perhaps less so in earlier periods: society consists of a constellation of governments, rather than an association of individuals held together by a single government. ¹¹¹

Culture wars have exacerbated the tensions amongst the subcultures of the rule of law. Selznick, reflecting on legal cultures and the rule of law, highlights the tight historical and conceptual connections between the rule of law, liberal universalism, and (in the United States) liberal individualism. He suggests that these doctrines are “unsympathetic—even downright hostile—to the claims of legal and cultural particularism.” ¹¹² This kind of agonism played out in the liberal-communitarianism debates and culture wars of the 1990s. Religion, rights, tradition, epistemic challenges, identity politics, and universalism produced an enduring set of tensions that we still face today. The rule of law, then and now, could seem simultaneously unyielding and too accommodating depending on one’s community membership. And, here it is important to remember that not all communities are straightforwardly “good.”

In short, one cannot always rely on broader culture or local subcultures to support the rule of law. We may be witnessing a moment where “as powerful as the pull of legality, nevertheless culture overflows, if not overpowers law.” ¹¹³ What does this cultural overflow and multiple meaning-making by local subcultures entail for the culture of the rule of law? It surely means trouble for a rule of law culture. Is it even possible now to think of allegiance to law as “allegiance to an idea of peaceful, stable regulation of social life, and to aspirations for justice in the life of communities”? ¹¹⁴ This question takes us to another contemporary subculture, which may be fighting for precisely this kind of vision.

3.1. Sic semper tyrannis

Though dark, pessimism will be avoided in this essay because optimistic possibilities manifest themselves even now. A cultural lens on the rule of law remembers that it has been the product not only of philosophical thought but of human action and human struggle because it is a good worth striving for. This was the lesson learned from communist Europe, decolonization in Africa and Latin America, and revolution in the colonial United States. As Thompson reminds us about the rule of law in the imperial context: “If the rhetoric was a mask, it was a mask that Gandhi and Nehru were to borrow, at the head of a million masked supporters.” ¹¹⁵ As a cultural phenomenon, the rule of law is part of people’s discursive meaning-making, complete with resources, values, and a language that can be used to challenge, critique, counter, and mock existing tyranny. The “No Kings/No Dictators/No Tyrants” movement represents another subculture of the rule of law that may counter the subculture of arbitrariness that MAGA represents. This subculture is employing a variety of cultural devices to imagine and enact a different future, perhaps best represented by the current mix of new and old protest songs, evoking the heritage of struggles against arbitrary power from Bella Ciao to Do You Hear the People Sing? to multiple new tracks entitled No Kings. This is the promise of a culture of the rule of law that believes in the rule of law culture. Americans might profitably look to other jurisdictions that are undergoing or have come through transitions—Northern Ireland, for example ¹¹⁶ —for guidance on how these transitions were assisted by the arts. Dennis Galligan underscores the fact that “Ideas of the rule of law, as they are expressed in modern legal orders, survive and develop only with the practical and ideological support of the organizations of government and civil society. If that support were withdrawn or subtly shifted, the ideas would soon wither.” ¹¹⁷ People and organizations need to remain active and vocal so that ideas of the rule of law are learned, remembered, practiced, reformed, and revived—in other words, rejuvenated as a praxis for this fraught moment.