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

Abstract

To explore the culture of the rule of law, this essay will first very briefly set out the conventional understanding of the rule of law sans its cultural dimension. It will then turn to the question of what is meant by the distinction between a rule of law culture and a culture of the rule of law. In Section II, the argument turns to the idea that distinct rule of law cultures exist—or, better termed, subcultures. One in particular will be explored: the private side of the rule of law and its related subculture of arbitrariness. This discussion leads to the third section, which suggests that a kulturkampf exists amongst rule of law subcultures in the United States. Sections II and III work with illustrative examples of recent changes to quintessential (once) independent public institutions that serve to support the cultural life of a democratic rule of law in the United States. These institutions can be considered both integrity institutions that are protective of democracy and the rule of law, as well as knowledge institutions that assist in providing the epistemic foundation for a healthy constitutional democracy. Finally, the essay will conclude by contemplating what this might mean for current research in law schools and across social science and humanities disciplines.