Between law and lawlessness: Democratizing law in Montesquieu, Burke, and Arendt

In the history of political thought, law has been defined in vastly different ways---as the will of the sovereign, the social contract, and the ancient constitution, to name a few. However, in contemporary political theory, one view of law is currently dominant. Whatever else it is (hindrance to democratic action [Wolin] or necessary condition of political engagement [Habermas]), contemporary theorists assume that law is an instrument of rule that secures freedom by warding off lawlessness. I argue in my dissertation that this view of law is mistaken or partial. I recover an alternative understanding of law which I find in the thought of Montesquieu, Burke, and Arendt. Montesquieu, Burke, and Arendt do not see law only as an instrument of rule. For them, law is a situated practice and includes the norms, rules, practices, desires, and politics we enact in everyday life.

The plural, lived understanding of law I recover from Montesquieu, Burke, and Arendt---which situates, but does not dismiss, formal legal institutions---suggests that law is not, as such, freedom-debilitating nor freedom-enhancing, but both. In Burke and Montesquieu, we see an awareness of how law is implicated in things to which rule of law theorists would like to oppose it---in Montesquieu, for example, something like the despotism that law is supposed to keep at bay turns up inside of law when, in the name of law, uniformities are imposed on diverse cultural communities. But law can also generate, and be utilized to generate, resistant communities and relations---like new alliances formed in opposition to a proposed law, or communities of protest called into being by legal principles. Seeing law in this more ambivalent way---as productive of, and produced by, relations of freedom and unfreedom---offers an alternative to democratic theory's rejection of law by revealing the ongoing threats to and resources for freedom present in citizens' relations with law. Rather than signing on wholeheartedly to legalism or rejecting it, the alternative view of law I recover from Montesquieu, Burke, and Arendt may better cultivate a more wary and actively democratic relation to law among citizens.