Paul Gowder is Professor and O.K. Patton Fellow in Law, the Iowa University College of Law
The rule of law is a normative principle governing the conduct of state (or state-like) coercive power. It requires that such power be exercised pursuant to the law, and, more fundamentally, pursuant to public-regarding reasons and for public-regarding goals which recognize the equal standing of those who hold power and those who have power exercised over them. A rule of law state deploys the active participation of the beneficiaries of law in their own collective self-defense against the powerful, and operates through individual access to the legal system on equal terms to vindicate individual rights. In that form, the rule of law is recognizable as a demand that citizens have made against their political authorities at least since Classical Athens.
For just as long, citizens have sought to back up these demands with divine sanction. Hesiod, in Works and Days, traditionally dated to the 7th or 8th century B.C., threatens his reprobate brother—and the bribe-taking lords to whom his brother appeals in an inheritance dispute—with the wrath of Zeus. From the classic Hugh G. Evelyn-White translation:
You princes, mark well this punishment you also; for the deathless gods are near among men and mark all those who oppress their fellows with crooked judgements, and reck not the anger of the gods. For upon the bounteous earth Zeus has thrice ten thousand spirits, watchers of mortal men, and these keep watch on judgements and deeds of wrong as they roam, clothed in mist, all over the earth. And there is virgin Justice, the daughter of Zeus, who is honoured and reverenced among the gods who dwell on Olympus, and whenever anyone hurts her with lying slander, she sits beside her father, Zeus the son of Cronos, and tells him of men’s wicked heart, until the people pay for the mad folly of their princes who, evilly minded, pervert judgement and give sentence crookedly. Keep watch against this, you princes, and make straight your judgements, you who devour bribes; put crooked judgements altogether from your thoughts [emphasis added].
To me, Hesiod seems to be responding to the frustration and inaccessibility of law. (This interpretation, incidentally, is controversial among classicists, and I don’t claim that this is what Hesiod meant—just how the Works and Days resonates to me.) Zeus is being invoked because in a corrupted legal system, the threat of divine intervention is all that is left to the honest litigant. In the absence of such intervention, it’s best to avoid the courts altogether—hence the Works and Days starts with Hesiod urging his brother not to bring the dispute between them before the law, but to settle it between them, on the grounds that to appeal to law is to fall into the clutches of the infamous “bribe-swallowing lords.”
This reading resonates with me because our contemporary society so often seems to cry out for the direct intervention of a God as the only means to get our legal system to actually serve ordinary people. For many of us, the law appears not as the product of a system of democratic self-rule or as integral to our daily choices of how we relate to one another, but as a hostile external force and a tool of those who hold social and economic power.
For relatively privileged Americans, probably the primary way in which the law becomes visible is through the seemingly endless stream of utterly one-sided form contracts, imposed on individuals by monopolist or oligopolist corporations with no opportunity at all for negotiation, that everyone is forced, by market power, to “accept” on a day-to-day basis in order to meet the basic needs of ordinary life. These contracts are typically little more than an exercise in what University of Michigan professor Margaret Radin aptly has called “rights-deletion,” in which the baseline rights guaranteed by law, such as to a day in court to resolve disputes, are removed by the so-called “agreement.” And for Americans of lower socioeconomic status, as well as Americans of all income categories in subordinated racial groups, the most salient presence of the law is far nastier, presenting itself in the form of unaccountable police and, for the poorest (which, in our current economic crisis, threatens to quickly become most of us) indifferent public benefits bureaucrats, where much of the task of the latter also turns out to amount to policing.
It should not surprise us that many people, finding themselves in a Kafkaesque legal environment, assimilate the legal process to ancient forms of religion and even magic. How else to describe, for example, the periodically recurring ritual of people posting Facebook status updates informing Mark Zuckerberg that they are unilaterally changing the terms of the contract governing their use of Facebook? I have a certain sympathy for this practice—after all, it seems to represent a kind of symmetry that a legal system ought to aspire to: if Facebook, or United Airlines, or Citibank, or whomever gets to unilaterally change their contracts with me to delete my rights, why can’t I do the same to them? (The only honest answer, but alas, one which we in the legal profession are disinclined to give, is “because they are corporations in uncompetitive markets and I am not.”) But it unquestionably represents magical thinking, the notion that people can change their legal obligations just by posting a set of ritualized words in a social media status update. The magical nature of that thinking doesn’t change in virtue of the fact that, at a certain level of market power, the spell actually works.
Such resort to ritual to defend oneself against a hostile legal system has much more sinister manifestations as well. The most infamous is the “sovereign citizen” movement, which uses pseudo-legal, magical, language in the courts—as well as “paper terrorism” like filing false liens—in order to, among other things, resist paying taxes, get revenge for foreclosures, and even generate frivolous defenses to criminal charges. The sovereign citizens sometimes resort to violence when their pseudo-legal tactics don’t bring them what they need.
Such movements become more appealing in times of economic hardship, as, for example, following the 2008 financial crisis and the wave of foreclosures it generated. While we should obviously deplore their tactics as well as the racist ideology that often finds its way into the mix, it is hard not to feel some sympathy for the people who get lured into those movements in moments of desperation. At least some of that desperation originated in legally-facilitated injustice.
For many years prior to the 2008 collapse, advocates were ringing the alarm about predatory lending practices in which mortgage brokers tricked lower-income Americans into agreeing to confusing loan terms that they couldn’t possibly afford, such as with surprise rate increases or balloon payments written into scary and incomprehensible legal documents. When I was a legal aid lawyer from 2001-2003, I represented a person who had a home stolen by this corporate version of “paper terrorism.” That kind of exploitation is the antithesis of the rule of law, in which those of us who have custody of the law—legislators, lawyers, and courts—allow it to become, not an accessible tool of autonomy and self-defense for all, but a weapon for the sophisticated and wealthy to wield against the innocent and poor. And how could many laypeople not turn around and start uttering nonsense legal words to try and strike back out against the system, when that system (or as much of it as they can see) has just equipped slick-talking salespeople with reams of documents filled with legal argle-bargle to strip away their life savings?
In short, I think we have good reason to believe that people turn to ritual, to magic, and to appeals for divine intervention when the rule of law fails—when the courts are corrupt, when the police are arbitrary, when contracts are not objects of mutual consent but rights-deletions dictated by the powerful. And now, as through the history of law and religion, such spells are the desperate resort of the subordinated.
But there is a more hopeful take on religion and the rule of law. In addition to serving as a threat, Gods have also been recruited to serve as models for those who are tasked to administer the law. A particularly inspiring example is the short story Panch Parmeshwar, typically translated as something like “The Panchayat is the Voice of God,” by the prominent fin de siècle Indian writer Munshi Premchand—a story that I discuss further in my book, The Rule of Law in the Real World (Cambridge University Press, 2016).
Panch Parmeshwar recounts a feud between two ex-friends, which culminates in a legal case in which one of the enemies (Jumman) finds himself in charge of a local village council—the panchayat—charged with adjudicating a case for debt brought against the other (Alagu). While Jumman intends to take his revenge by unjustly ruling against Alagu, the moment he takes up his role as chair of the panchayat, he comes to realize his responsibility: “I am now the arbiter of justice and dharma. What I say will be accepted as divine fiat, and I cannot allow my private prejudices to influence the sanctity of the divine word.” He rules honestly, in Alagu’s favor, and, explaining himself, says that “[t]oday I have realized that God speaks through the panchayat.”
We should all work toward a legal world modelled on Panch Parmeshwar, in which the law empowers citizens within their communities, and religion and ritual enter, if at all, as a source of inspiration to act justly. And we should move away from a legal world modelled on Works and Days in which the forms of religion, magic, and ritual serve a last-ditch resort of the weak to defend themselves against the strong.
- Quotes from Works and Days are from Hugh G. Evelyn-White’s 1914 translation. On its dating, see Mait Kõiv, “A Note on the Dating of Hesiod,” The Classical Quarterly 61 n. 2 (2011): 355-377.
- Quotes from Panch Parmeshwar are from the translation in Munshi Premchand, Twenty Four Stories. Translated by Nandini Nopany and Purushottama Lal. New Delhi: Vikas, 1980. I discuss this story in Paul Gowder. The Rule of Law in the Real World. New York: Cambridge University Press (2016), p. 12.
- Hesiod urging Perses not to appeal to the courts: Works and Days 25-41. See the discussion in Robert J. Bonner, “Administration of Justice In the Age of Hesiod,” Classical Philology 7 (1912): 17-23. On the controversial nature of the interpretation of Hesiod as bemoaning his vulnerability to corrupted courts, see Michael Gagarin, “Hesiod’s Dispute with Perses,” Transactions of the American Philological Association 104 (1974): 103-111.
- Comparing sovereign citizens to a religious or magical movement: see Donald J. Netolitzky, “Organized Pseudolegal Commercial Arguments as Magic and Ceremony,” Alberta Law Review 55, n. 4 (2018): 1045-1088. On vulnerability and fear as leading people to join such movements, see Edwin Hodge, “The Sovereign Ascendant: Financial Collapse, Status Anxiety, and the Rebirth of the Sovereign Citizen Movement,” Frontiers in Sociology, November 2019, DOI 10.3389/fsoc.2019.00076.
- For more examples of the use of curses and other ritual measures as substitutes for legal equality by the subordinated, see Jeff S. Anderson, “The Social Function of Curses in the Hebrew Bible,” Zeitschrift für die alttestamentliche Wissenschaft 110, n. 2 (2009): 223-287, pp. 230-2