Florence Ashley opens this essay by distinguishing between the “rule of law” and the “rule of man,” describing the latter as a widely undesirable state of governing (or lack thereof) while the former is supposed to be a steady and reliable foundation of order:

The rule of law is a lot like gender. The analogy is puzzling, at first glance. Coming from a trans experience, the parallels are much more visible to me: “Then an analysis can focus not on what the rule of law is, or what it should be, but on what it does, what it accomplishes, what it produces. Indeed, if the only thing we know for sure about the rule of law is what any of these many state actors say it is in any particular instance, the rule of law will turn out to be as messy and diffuse a concept as the state[2].” This passage is perfectly intelligible, and yet every reference to the rule of law in the passage was a replacement of the term “sex”. Both the rule of law and gender, in legal contexts, are normative notions which seek to define the proper relationship between citizens and between citizens and the state. Whereas the supported relationship is a cisheteronormative[3] one with regards to gender, the rule of law promotes a law-abiding relationship between citizens and state. In the negative chasm of each conception, we find transgender people and emancipatory actors. Gender as a state construct makes trans lives either impossible or difficult, whereas the rule of law makes emancipatory lives either impossible or difficult. That trans lives are often led as emancipatory lives attests to importance of transfeminist analyses of the rule of law. The analogy is also interesting insofar as the enforcement of gender as a legal-administrative category to the disadvantage of trans people is frequently defended by appeal to the rule of law.

However, Ashley argues that it’s a false distinction: Man must apply the law, and discretionary power brings us back to square one.

The notion of the rule of law implies that we are ruled by law. However much a truism as this sentence may be, it is not a trivial point. There must be a meaningful way in which laws, rather than people, are what rule our lives[4]. For some rule of law theorists, the enforcement of laws satisfies the rule of law if it is exercised by those in power in their role as agents of the law, in a good faith belief that the law mandates them to exercise their powers in that manner[5].

Inherent in this notion is that being ruled by law is possible. We have room to doubt this assertion on two grounds. First, discretionary power is distributed widely and unevenly. Too many people have too much discretionary power for us to realistically ensure that they always act in accordance to such a good faith belief. Second, good faith beliefs cannot be so detached from the agents which hold them that their imposition can be reasonably interpreted as a rule by law rather than by men.

Ashley then examines what it means for the agents of law to import their own experience of the world into legal constructs, and relates that to the current state of struggle for trans folk. I thoroughly recommend it.

-Shiv