Backsliding, sabotage and the rule of law: Learning from mistakes

Concilium Civitas 2019/2020, Concilium Civitas, konkurs dla maturzystów, matura 2020

Backsliding, sabotage and the rule of law: Learning from mistakes

My remarks concern the contemporary global epidemic of populist challenges to constitutional democracy. They will not seek to explain them, however, nor will they offer a cure. Their ambitions are smaller. The first section identifies several ill-conceived but very common ways in which we think and talk about post-dictatorial transitions, and in particular about engendering (often mistakenly called ‘building’) constitutional democracy where it was weak or absent. The second sketches some, also common, ways we mistake the nature of challenges (and challengers) that enterprise might face, in particular challenges from anti-constitutionalist saboteurs/subverters, often more clued up on these matters than their enemies. Drawing on these two parts, in the third I suggest that we might do better if we reflected on these mistakes and came to talk and think, and consequently act, differently.
The problems we are dealing with are global, but they are not identical. My remarks will draw mainly on Central European experiences, particularly Polish, though I do not believe the issues I identify are confined to that country, nor even to it and its pioneer partner, Hungary.

  1. The rule of law project

My first question is roughly: why has it been so easy for populists to sabotage and subvert the constitutional values and institutions associated with the rule of law where, only 30 years ago, such values and institutions appeared to be welcome and indispensable elements of the normality so many citizens of the region professed to admire and want? Another way of asking the question is: why have Jarosław Kaczyński and Viktor Orbán found so apparently easy what Donald Trump, whose power and ambitions are not small and whose motivations appear similar, finds so hard: to overwhelm and take over ostensibly (and, of course, only ever relatively) those independent institutions that many had hoped would to be able to keep power in check? There are many reasons for this, some of which I have discussed elsewhere. Here I just concentrate on mistakes that contemporary enthusiasts for constitutionalism and the rule of law might themselves have made even before the project attracted enemies.

One is a failure to recognize the significance of institutionalization as both a potential challenge and a means to the effective operations of new institutions, in the sense of the word used and theorized by the American sociologist Philip Selznick: ‘to infuse with value beyond the technical requirements of the task at hand.’ [1] Most commonly, institutionalization occurs as a spontaneous social process over time, as people develop particular habits, relationships, networks, ties, loyalties and attachments in the course of living and working together, participating in activities, sharing and learning values, symbols and so on. Deep institutionalization happens more in some sorts of organizations and ‘imagined communities’ – such as churches, the marines or the nation – than others, say the post office or sanitation department, but it happens a great deal. Institutionalization in this sense is widespread and often goes deep, so deep that we do not even notice it. Less often and with greater difficulty than in spontaneous processes, there can be a deliberate project to institutionalize an organization, to encourage particular loyalties and attachments to develop, to ‘infuse value’ into organizations, to transform ‘an engineered, technical arrangement of building blocks into a social organism’. [2] A lot of innovative projects have been attempted and set up since the collapse of communism, but they were never drawn on a blank slate, as many reformers and their advisers imagined. No one starts from nowhere.

To move from generalities: in Poland and most other countries of Eastern Europe, most of the values and institutions welcomed so heartily in the early 1990s – liberal, individualist, legal and so on [3] – did not have much of a foothold in Central Europe. But then, in the period in which these values and institutions were developing in the West, there was little history of them in the East; few had heard of them, and, as Jerzy Szacki observes, of the few who liked them, ‘Most … it should be added, were intellectuals who had little influence on practical affairs.’ [4] Later experience of Nazi and communist rule did little to propagate such values, except as sources of inspiration for opposition.

Thus while the values underpinning reforms were not part of any strong living traditions, they had little institutionalized support; other values, often contradictory to those voiced by the reformers, could draw on significant traditions and had substantial popular resonance and grip; they were institutionalized. Reformers often disregarded this as a pressing problem to be dealt with, for they did not seriously consider the need to institutionalize the values underlying their reforms.

Consequently, reformers indulged more in technocratic attempts to impose ‘international [or European] best practice’ in institutional design, rather than think deeply about how local institutional attachments might be generated. However, design is unlikely to matter much without attachment. Democratic, legal and constitutional transformations in post-communist countries were much more prone to emulation, adoption and installation of supposed means, than to the institutionalization of their connection with valuable ends; they were far more ‘instrumental’ than ‘reflexive’ in their sensibility and approach, to use a distinction made by Grażyna Skąpska. [5]

Similar observations could be made about reforms in many post-communist countries. This has to do not just with what I have described elsewhere as the ‘elite-driven, instrumental, technocratic, undemocratic and formalistic’ process of allowing and gaining entrance to the European Union (EU) [6]. It is also true of economic policy, constitutional changes, democratic reforms and many other novelties introduced to the region, whether driven by internal domestic reformers or international sponsors.

And yet supplanting, enlisting or engendering institutionalized assumptions, beliefs as well as formal and informal practices is not always easy or quick. For, as Selznick has also observed elsewhere: The starting mechanism [of institutionalization] is often a formal act, such as the adoption of a rule or statute. To be effective, however, the enactment must build upon pre-existing resources of regularity and legitimacy and must lead to a new history of consistent conduct and supportive belief. Institutions are established, not by decree alone, but as a result of being bound into the fabric of social life. Even so weighty an enactment as the United States Constitution cannot be understood apart from the legal and political history that preceded it, the interpretive gloss given it by the courts, and the role it has played in American history and consciousness. The formal acts of adoption and ratification were only part of a more complex, more open-ended process of institution-building. [7]

That process can be influenced by deliberate action, but it is rarely determined by such action on its own, for – with constitutions as much as with more prosaic administrative institutions – we need to analyse: the social and cultural conditions (class structure, traditional patterns of loyalty, educational level, etc.) that affect its viability … We see how the formal charter is given life and meaning by the informal ‘social constitution’ in which it is imbedded. When the latter is absent, the constitution is likely to be weak and ineffective. Giving life to a constitution is partly a matter of achieving general consensus regarding proper ways of winning power and making laws. But much more is also involved. [8]

Partly as a result of these deficiencies (together with many other factors, both inherent and unintended), many of the institutions, conventions, beliefs and practices of constitutional democracy introduced into post-communist Europe have not been strongly institutionalized.

  1. Anti-constitutionalist populism

And then the enemies started to come. Sometimes they understood better than the reformers what institutional transformation requires. And we have not always understood what these enemies (and they are enemies, not merely opponents) understand and what they represent.

They have understood very clearly that they are in a battle over institutionalization, again in Selznick’s sense. Populist opinion shapers manifest a particular combination of re-institutionalizing and de-institutionalizing ambitions.

Populists (maybe not every member of the genus, but a significant number) always do their utmost to strengthen the devotion of insiders by stoking hatred of outsiders; their inclusions always draw on the existence of repugnant, often dangerous people who must be excluded from the movement, from the country, in the worst extreme cases – thankfully not realized in current versions – even from the world. They draw on and fabricate a locally revered past – mixing reality, myth, fiction and often fantasy. This they then use to revive, stir up and then cement loyalties and attachments among the faithful – to the nation, the faith, the ‘true’ people, and against the foreign, the cosmopolitan, the unbelievers or other-believers, elites, the new, the unfamiliar, the ‘worse’ and the ‘other’. They speak of revolution, but it is to restore the ‘authentic’ past; that past, bullied away by the ‘elites’, the ‘oligarchs’ and the ‘aristocrats’, must be revived. National unity will be restored and liberated from malevolent ‘elites’ and the ‘less desirable sort’ of citizens, who by some strange kind of reckoning populists exclude from the true nation. In Selznick’s terms, and it appears quite self-consciously, values, loyalties and attachments, along with the parallel anti-values and enemies, are cultivated in order to strengthen the institutionalization of new movements by linking them to old values, or values that are represented as such; values that have allegedly been rejected by the alien elites. As the song has it, ‘everything old is new again’.

The aim of populists is pervasively anti-institutional in the more common meaning of that term: that is, hostile to independent institutions and determined to de-institutionalize their hold on citizens. The political logic of that view of the world and of politics involves, as Kaczyński makes plain, unity of power (which, incidentally, was Lenin’s term) that is unrestrained by institutional tempering or constraint. This shines through the rhetoric and the attacks on the independence not just of the Constitutional Tribunal but all courts, media, civil service, non-governmental organizations, independent protests, etc. It is also evident in the extraordinary degree to which major public institutions such as the courts and the civil service are used and abused in purely instrumental and personal terms. For example, Kaczyński’s tremendous dominance in Polish politics does not stem from his holding any public office, and no one pretends otherwise or is even surprised that this is so. Again, during the assault on the Constitutional Tribunal, talk was not of the institution and its judicial representatives delivering legal judgments, but rather of a group of shady mates (kolesiów) who are not delivering legally binding decisions, but simply chatting to each other. So there is no need to make those informal exchanges public (though the law requires it). In the current attacks on lawyers and the whole judicial system, talk is of the arrogance of this closed contemptuous ‘caste’, whose members have no interest in the welfare of citizens. Finally, it is also striking how a whole campaign was organized against the outstanding institution known all over the world as the Central European University, but its enemies never referred to it as that; for them, it is the Soros University.

Finally, having hollowed out or destroyed the independence of such institutions, populists use and manipulate them for their own purposes, which are alien to the intentions that lay behind the creation of those institutions. And they are not embarrassed to do so, but insist that this is the true way in which constitutionalism and the rule of law should be understood. The region’s new populist regimes are much given to such legal tactics and strategies – techniques that, in Kim Scheppele’s view, show ‘careful attention to constitutional form while hollowing out liberal constitutional content’. This perverted form of legalism distinguishes what she calls ‘democratorships as a special category among competitive authoritarian regimes’. [9] When they can, as in Hungary, they indulge in ‘abusive constitutionalism’ in the sense outlined by David Landau. When they cannot, as in several cases in Poland, they resort instead to ‘abusing the constitution’, as defined by Grażyna Skąpska. [10]

Again, we often underestimate what challenges to the rule of law and constitutionalism might represent. Where the rule of law was being ‘built’ in countries said to be in the process of ‘transition’, transitologists often described the challenges confronting the development of constitutionalism and the rule of law in a language of ‘absences’ and ‘lacks’. The extent of these could even be assessed by using one of the many currently available ‘indexes’ that rate the degree to which a country has the rule of law on a scale from low to high, based on a range of measurable ‘indicators’. [11]

However, when the rule of law is in poor shape, it is often not that it is lacking, or that it cannot be understood – at least that is not the main issue. Rather, it is the presence of something else: that is, contradictory agendas, often anchored in quite different and often hostile clusters of ambitions or Weltanschauungen (worldviews). Typically, those in pursuit of such agendas are not at all epistemologically challenged. They know what they want, and they do not want the rule of law in any plausible sense, even though they use the term because they need the associated prestige, the money it draws and the sanctions it might prevent. So they copy the techniques, or pick out and replicate the worst of existing constitutional practices, to shield themselves from legalistic international and national criticism. [12] But they have other ideals and interests. So the populists’ failure to honour what we might take to be fundamental principles of the rule of law is often not primarily a technical problem but an institutional one, in the sense I have outlined, and also in a deeply political sense. [13]

The language we use to describe these anti-constitutionalist [14] populist challenges often fails to capture the active, energetic, relentless agency involved. We speak of ‘backsliding’, ‘decay’, ‘erosion’, ‘decline’ and ‘regression’, all of which might well apply to the progress (or regress) of organic development – I am not as young as I used to be, I am ‘deteriorating’, some might say ‘decaying’. Still, everyone loves me, so my decay does not depend on others but is my own affair. But not everyone loves constitutional democracy and the rule of law. Both have real enemies, who are often resolute and energetic in their aims and pursuit of activities and ends that these organic and solipsistic metaphors fail to capture. We need a language that can capture and a practice that can respond to active and hostile subversion and indeed sabotage, for, as Kim Scheppele has aptly remarked, ‘buried in the story of [democratic] decline, …there is a story of constitutional malice’. [15]

I mentioned earlier that a peculiarity of modern populism and its ‘abusive constitutionalism’ is that, rather than simply ignoring or openly overriding the law, or indeed the ideological rhetoric that gives it pride of place among what are claimed to be much valued ideals, modern populists seek to enlist and use the law and its rhetorical/normative associations for self-serving purposes. A central and insidious way in which this is done is by abusing the law’s original (and proper) aims, in ways that are hostile to its underlying ideals. The law is at once both a central instrument and a target. That gives battles over the law a strategic significance that it seldom has had in the consolidation of authoritarian rule. Ironically, the present crises might motivate (and already have done to some degree in Poland) many lawyers and others to make a greater effort to ‘institutionalize’ legal values, which is something they generally failed to do when all seemed well.

The situation is urgent, not least in structural terms. For there is an important asymmetry between a context of construction on the one hand and destruction on the other, in what we with decreasing plausibility call the ‘transition period’ to democracy and the rule of law. The technocratic, including European, understanding of the transition period had a highly optimistic core: the right inputs will produce the desired outputs. The trouble is that this is not always the case, because truly beneficial change depends on positive combinations of many forces: social, political, economic and legal. Destruction is sometimes a lot simpler: just strike at the heart.

An analogy with personal development might help: it takes many elements, including congenial environments, circumstances and luck, for a person to flourish. However, especially if their constitution is weak, just one well-directed blow can do mortal damage. That is why it is so important to defend the institutions of state and law that were created yesterday and are being subverted today. And this is not because they are as good as they could possibly be, for they are far from it; nor because the law possesses some magical ability to keep power in check; nor because it could achieve that on its own; nor even because upholding the current law would solve all problems. Effective tempering of power requires many and various resources. Moreover, circumstances are critical, because systematic attempts by a government to remove institutional, social (NGOs and media) and political constraints on its power reject and threaten not merely selected institutions, but more profoundly, the ethos and the ultimate values of constitutionalism and the rule of law.

  1. Responses

So what can those actors on the political stage who are concerned for the rule of law do? I start with those belonging to the legal profession, but stress that we cannot stop there.

Often, principled resistance among judges and legal officials must involve insisting on strict adherence to the existing law, whenever the government seeks to ignore or flout it. A number of Polish judges and prosecutors have done so recently and should be applauded for that. Of course they are only doing their job, but it is crucial that they keep doing it and help the public understand what is involved and what the dangers are of following one path rather than another.

Moreover, in the Polish context it helps (those who support the rule of law) that, unlike its Hungarian counterpart, this government does not have a constitutional majority, and so is forced to keep breaking the law. To use Grażyna Skąpska’s distinction, what they are doing is not just ‘abusive constitutionalism’ as in Hungary, but ‘abuse of the constitution’. This combination provides a hook for the Polish opposition as well as for European supervision, and validates the important opposition shown by lawyers and legal professionals to the government’s power-grabbing. The measures they undertake include presentations to the public explaining what really matters in law and why checks on power are so crucial. In fact, now might be a good time for potentially key actors to make a greater effort to institutionalize regard for the law and for the merits of the rule of law, than they did in earlier, more apparently successful times. Perhaps what is needed now is for the legal profession to make a public statement about what the rule of law depends upon and what now threatens it, but to do so less in terms of legal doctrine and dogmatics, and more from a propagandistic, moralistic, philosophical or political perspective. For the values at stake matter not just to lawyers; they matter to us all. It is not often that lawyers have an opportunity and a need to be heroes and propagandists, but this might be just such a time.

However, the present circumstances are original also in the sense that governments which are skilled in abusive constitutional practices can often undermine constitutionalism and the rule of law while following the letter of the law. The Hungarian government with its supermajority finds this easier than the Polish government. Does this make the threat to constitutionalism and the rule of law less in Hungary than in Poland, because they are following the rules? I do not think so. And I believe those in office in legal institutions have a responsibility to point out these threats and oppose them. One tactic used by populists is to become fastidious formalists when it comes to the law, to show they are following the established rules of the game, while it is obvious to everyone that they are trying to destroy the game by sabotaging and manipulating the rules. It is not the time to be counting the deckchairs on the Titanic when its hull has been punctured.

If one person or group or institution with unlimited control over state power can alter the basic frames of interaction in such a way that the fundamental checks on power become progressively weaker, formally free elections become much harder to monitor, the independence of institutions from people in office crumbles away, then we face structural issues of the deepest concern. The way in which populists operate when they are in power might appear unobjectionable in formal terms, and yet something is deeply amiss from the point of view of constitutional democracy and the rule of law.

Perhaps those in public life who are connected with the legal profession might draw on Samuel Issacharoff’s arguments for ‘democratic hedging’ [16] to protect basic structural conditions for the effective safeguarding of democracy against the kind of subversion or sabotage that is carried out, often by completely legal means, chiefly in ‘dominant-party states.’ Moreover, whereas Issacharoff speaks primarily of fair and free elections, I think it is worth pointing out their more immediate and direct connection to constitutionalism and the rule of law. Democracy is important, to be sure, and it is a good thing too. But it is not the only good thing that is being threatened by authoritarian populists. They are also threatening another set of values, often more directly, namely constitutionalism and the rule of law. This is not even to mention the argument made by Holmes and Habermas, which I support, [17] that democracy and the rule of law depend on each other; illiberal democracy – as Jan-Werner Müller stressed, [18] is a contradiction in terms. And though I say little about this mutual dependence here, lawyers and indeed all who understand that necessary combination must speak up about it, loud and clear.

This is why it seems to me that the distinction between means and ends must be stressed. What is at stake in the modern challenges to constitutionalism and the rule of law is not this or that particular legal institution, practice, rule or form, but rather the ultimate values and ideals that make them worth having. Much can be said about that, and I have done so extensively elsewhere. Here, I will be brief: the rule of law has a key opponent, arbitrary power, and therefore the main objective of the rule of law is to rein in power so that it cannot be exercised arbitrarily. [19] For arbitrary power can and usually does have terrible consequences. Individual and institutional responses to attempts to clear paths to arbitrary power must constantly keep that in mind.

Of course, courts are not there to remake the world. However, contemporary populist political leaders and organizations are trying to reshape and mould the structures within which power is exercised, in ways designed to uphold that power irrespective of opposition and contestation, and in ways that violate fundamental constitutional values. In view of this it is in the public interest to resist such reshapings and remouldings. People need to be made aware of that.

Many lawyers (and certainly their populist critics) will say that any such suggestion takes lawyers into politics, which is not their legitimate domain. But lawyers who defend the integrity of their institutions in order to protect constitutionalism and the rule of law are not merely expressing their personal values – once again, they are only doing their job: defending the values they were appointed to serve. And they should make that plain. Not only is anti-arbitrariness a central value within the rule of law; in my view it is a fundamental value, in other words internal and essential to the rule of law itself. And officials, as well as judges who have in most cases sworn to ‘do justice according to the law’, have in extreme circumstances to stretch – or adapt – normal procedures to defeind the values on which their institutions depend. There is a large and distinguished jurisprudence that defends the appropriateness, indeed necessity, of interpreting the law in terms of its underlying purposes and principles, and that is all that is needed to protect against saboteurs using formalistic legal means to subvert precisely those purposes and principles.

An attack on the institutional integrity of the main institutions that check power, whether they be constitutional tribunals or civil society organizations, is an attack on the central values of the rule of law. At their core, these have to do with hostility to the arbitrary – whether uncontrolled, unpredictable or disrespectful – exercise of power. Those values need defenders – champions indeed – when they are being subverted. And there are reasons to hope they will get them, since populist demagogues often overreach, and ‘the people’ get restless. There are some gladdening signs of this in Poland at least, and to a lesser extent in Hungary, and signs too of an awareness among defenders of the rule of law that it needs not only to be protected, but also institutionalized.

But champions will not manage this on their own. Certainly, it is unlikely that they will persuade large numbers of people purely on the basis of legal arguments, which in any event may be questionable, since the ‘abusive constitutionalists’ often find ways of subverting the law from within by legally valid means. In these circumstances, legal punctiliousness is no sufficient answer to those highly manipulative uses of legalism that violate the rule of law.

The rule of law was never well rooted in Central and Eastern Europe. It needs all the help it can get, from all possible quarters. Contemporary anti-constitutional populists, being fully aware of the consequences of what they are doing, are determined to give it no help whatsoever. Meanwhile, those who do seek to oppose populist excess will need to do more than object to (il)legal tactics and manoeuvres. Just as the trade union Solidarity (Solidarność) once brought people together by expanding their understanding of what was behind the arbitrary indecencies of the communist authorities, today’s opponents of arbitrary power will above all need, in every (non-arbitrary) way they can, to show what is at stake, why the rule of law matters, what it is for. Those opponents who are lawyers need to spread the word, not just by talking to each other but also to the society they belong to, and indeed to the wider world. For ultimately this is not about the law or lawyers. It is old wisdom that unlimited power is dangerous. So it is in everyone’s interest that power be held in check and tamed.

Because that is so, everyone should rally to the cause. The rule of law is never merely a legal matter. It is invariably a matter of society and politics. Every (legal) form of social and political activism should be engaged in the effort to defend society, politics and the law against arbitrariness.

Alas, even if we understand all this perfectly, this in no way guarantees a happy ending. Even if the populists lose, the fact that they have deinstitutionalized those independent institutions that rein in the power they could not swallow means that the job of their successors will not be easy. And it cannot even be taken for granted that their successors will be up to the task. Will they have the competence and motivation to remedy the harms that have been done? Will they have a stronger political and institutional vision than the one on offer today? And what if (for it will be tempting) they decide to stick with the damaged institutions left to them, either because it would be too hard to repair them, or because they find it convenient to reap party benefits from the transgressions of their predecessors. In any event, who knows when or how the anti-constitutionalists are forced to leave. As so often happens, we need to restrain the pessimism of the intellect by means of an irrepressible optimism of the will, for as the traditional Jewish adage tells us: ‘You are not required to finish the task. Yet you are not free to abandon it.’

Martin Krygier

Martin Krygier is Gordon Samuels Professor of Law and Social Theory, UNSW. He is also Adjunct Professor at the Regulatory Institutions Network, Australian National University, recurrent visiting professor at the Graduate School of Social Research, Warsaw and a fellow of the Academy of Social Sciences in Australia. His works include Philip Selznick: Ideals in the World; Civil Passions; Between Fear and Hope. Hybrid Thoughts on Public Values. He has edited and contributed to Spreading Democracy and the Rule of Law?; Rethinking the Rule of Law after Communism; Community and Legality; The Rule of Law after Communism; Marxism and Communism; Bureaucracy: The Career of a Concept. He writes extensively on the rule of law – its nature, conditions, challenges and prospects, especially in politically scarred societies. Apart from academic writings he contributes to journals of ideas and public debate. In 2016 he was awarded the Dennis Leslie Mahoney Prize in Legal Theory. From March to August 2019, he is a Reagan-Fascell Democracy Fellow at the National Endowment for Democracy, Washington D.C.

Footnotes:

[1] Philip Selznick, Leadership in Administration: A Sociological Interpretation, University of California Press, Berkeley, CA, 1984, 17.
[2] Ibid., 139.
[3] See Jerzy Szacki, Liberalizm po Komunizmie, Znak, Kraków, 1994
[4] Jerzy Szacki, Liberalism after Communism (1st edn., Central European University Press, Budapest, 1995), 52.
[5] Grażyna Skąpska, From ‘Civil Society’ to ‘Europe’. A Sociological Study on Constitutionalism after Communism, Brill, Leiden, 2011.
[6] Martin Krygier, ‘Introduction’ to Wojciech Sadurski, Adam Czarnota and Martin Krygier, eds., Spreading Democracy and the Rule of Law? The Impact of EU Enlargement on the Rule of Law, Democracy and Constitutionalism in Post-Communist Europe, Springer Verlag, Heidelberg, 2006, 13.
[7] Philip Selznick, The Moral Commonwealth, University of California Press, Berkeley, 1992, 232.
[8] Philip Selznick, Leadership in Administration: A Sociological Interpretation, University of California Press, Berkeley, CA, 1984, 6–7.
[9] Kim Scheppele, ‘The End of The End of History, ‘, forthcoming (2018) University of Toronto Law Journal.
[10] Grażyna Skąpska, ‘Znieważający konstytucjonalizm i konstytucjonalizm znieważony. Refleksja socjologiczna na temat kryzysu liberalno-demokratycznego konstytucjonalizmu w Europie pokomunistycznej,’ (2018) Tom 7, Numer 1, Art. #12 Filozofia Publiczna i Edukacja Demokratyczna, 276–301.
[11] See Mila Versteeg and Tom Ginsburg, ‘Measuring the Rule of Law: A Comparison of Indicators’, 2017, 42, Law & Social Inquiry, 100–137.
[12] Kim Lane Scheppele, ‘Worst Practices in the Transnational Legal Order’, in Tom Ginsburg, Terry Halliday and Greg Shaffer (eds) Constitution‐Making as Transnational Legal Practice, Cambridge University Press, Cambridge, forthcoming.
[13] This is a central theme of Nick Cheesman’s Opposing the Rule of Law. How Myanmar’s Courts make Law and Order, Cambridge University Press, 2012. See symposium on this book in (2017) 9, 1 Hague Journal on the Rule of Law.
[14] I say anti-constitutionalist because, as many observers have noted, new populists are often not at all hostile to constitutions or to law, which they use by abusing. They are hostile to the normative commitments that are central to constitutionalism and the rule of law.
[15] Kim Scheppele, ‘Autocratic Legalism’, The University of Chicago Law Review, 3. 26 June 2019: https://lawreview.uchicago.edu/publication/autocratic-legalism
[16] ‘Constitutional Courts and Democratic Hedging,’ (2011) 99 The Georgetown Law Journal 961; Samuel Issacharoff and Richard H. Pildes ‘Politics As Markets: Partisan Lockups of the Democratic Process’ (1998) 50 Stanford Law Review, 643.
[17] Stephen Holmes, Passions and Constraint. On the Theory of Liberal Democracy, (Chicago: University of Chicago Press, 1995), 28-29; Jürgen Habermas, ‘On the Internal Relation between Rule of Law and Democracy’, European Journal of Philosophy, vol. 3 (1995), 17, 18; Krygier, ‘Democracy and the Rule of Law’, forthcoming in Jens Meierhenrich and Martin Loughlin, eds., Cambridge Companion to the Rule of Law, Cambridge University Press, Cambridge, 2019.
[18] Accessed 27 June 2019: https://www.project-syndicate.org/commentary/the-problem-with-illiberal-democracy-by-jan-werner-mueller-2016-01
[19] See Krygier, ‘Tempering Power’, in Maurice Adams, Ernst Hirsch Ballin, Anne Meuwese, eds., Constitutionalism and the Rule of Law. Bridging idealism and realism, Cambridge University Press, Cambridge, 2017, 34–59; Krygier, ‘The Rule of Law, Pasts, Presents, and two possible Futures’, (2016) Annual Review of Law and Social Science, 199–229.

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