Rule of Law, Fidelity, and Mediated Efficacy: Addressing the Distance Dilemma in Postema's Theory

This article examines the distance dilemma, Gerald Postema's proposed solution, and the challenges it poses for his conception of the rule of law. The dilemma arises from the question of when a legal system can count as being in force. Two unsatisfactory alternatives emerge: requiring that legal subjects comply with the law in full knowledge of it is unrealistic, while reducing the connection to mere behavioural correspondence with legal norms proves insufficient. Postema offers a thought‐provoking solution by arguing that the efficacy of law is mediated by informal social customs and practices. While this mediation bridges the gap between legal subjects and the legal system, I argue that it is insufficient to sustain the ethos of fidelity necessary for Postema's conception of the rule of law. This ethos demands reciprocal compliance with legal norms and the existence of a network of mutual accountability, where members of the community are enabled by legal norms to hold each other accountable. This article argues that mediated efficacy cannot sustain such a network.