Pathologies of Legalism and the Rule of Law

While some societies suffer from lawlessness, others suffer from what could be called “pathologies of legalism”. Here, while citizens and officials adhere to the letter of the law, they frequently flout something more fundamental in ways that erode the rule of law. In addition to the familiar uses of technicalities to game the legal system, there are much more serious instances, such as “lawfare”, in which political officials weaponize the law in order to attack their political opponents. This project aims to illuminate the nature of the rule of law by investigating these and other pathologies of legalism. Questions to be posed include: What exactly is flouted when citizens or officials resort to legalism? Wherein lies the wrong or harm in such floutings? What kinds of measures would be suitable to address them effectively? Are there certain virtues that, if cultivated, would protect against the pathologies of legalism? Speakers will include Gerald Postema (UNC-CH), “No Tyranny More Cruel"; Amanda Greene (UC Santa Barbara), “What’s Wrong with Lawfare?”; Lucas Stanczyk (Harvard), "The Shadow Republic: Liberalism, State Violence, the Responsibility of Intellectuals”; Kevin Toh (UCL), "Mutual Freedom, Substrata of Rules, and Subversive Legalism”; Hilary Nye (Alberta), “The Rule of Law as a Thick Concept”; and Mitchell Berman (Penn), "Cheating, Second-Order Rules, and Principles".