The purpose of this research is to examine so-called "intuitive notions" (xx) about the rule of law that have evolved in Western thought in general and American legal system in particular. The plan of the research will be to set forth the pattern of ideas contained in Altman's discussion of the rule of law, and then to explore how a concept of judicial behavior that seems straightforwardly useful, clear, and conceptually strong can be and has been made problematic on account of the manner in which its practical application has been interpreted.
Altman begins his discussion of the value of the rule of law by suggesting the problems with the conceptual structure of civil society that are implied by its absence. Citing the Iran-Contra scandal of the mid-1980s, which drew strength from the deliberate and programmatic flouting of black-letter law on the part of high government officials, Altman explains that the strength of American society comes from "the willingness to abide by the law [which] is the principal force that prevents it from splitting apart" (2). The rule of law itself derives from five principles, each of which is conceptualized as an outgrowth of the other. First, government by rule of law contrasts with arbitrary government, wherein certain individuals are conceived as functioning above the law, not subject to rules. Secondly there are the rules themselves, which are meant to be systematically created and applied on one hand and systematically and authoritatively enforced on the other. With the third principle arises legitimacy of the rule: the laws must be public rather than secret, "reasonably clear in meaning" (5), stable and consistent rather than ad hoc or temporary, impartially and consistently applied, and "enacted in accordance with preexisting legal rules" (5). The fourth principle, due process, is a special aspect of legitimacy, entailing provision for those accused of violating the law to defend themselves ag...