The Role of Emotions in Sustaining the Rule of Law

Abstract

Recent statements on the rule of law observe its retreat in many jurisdictions, including states such as the United States where the rule of law has been considered by many to be well-established and stable. Beyond analyzing the degree and manner in which government officials have rejected or ignored the rule of law principles, how should we respond to developments that seem to challenge its existence? The most important demands made by the rule of law include the obligations of persons in authority to exercise their power within a constraining framework of established public norms rather than in an arbitrary or discretionary manner based on their own preferences or ideology. Emotions would not only seem not to belong in these principles, but be antithetical. This essay considers the role of emotions in how individuals subject to non-compliant official actions can think about and respond to rule of law failures. The essay argues that rule of law jurisprudence needs a concept that integrates rationality and emotion, and that hope and a secular version of faith have a role to play in sustaining the rule of law.