The rule of law came to enjoy unprecedented acclaim after (and, it can be argued, directly because of) the collapse of communism in Europe. In recent decades, and throughout the world, there has likely been more said, paid, and promoted in its name than ever before. But quantity has not always gone together with quality. The rule of law has been the beneficiary of many more stale words than fresh thoughts. And today its aura has dimmed. Yet it is hugely important to think well about it and find better ways.
Increasing skepticism about western models of governance coupled with the epidemic rise of populist and authoritarian parties and governments, among them two revived great powers, with no interest in upholding the rule of law domestically and considerable interest in sabotaging it abroad, have meant that its virtues can no longer be assumed. It is assaulted by new foes and in new ways. Now, its partisans and proponents cannot simply invoke it as a conversation-stopping mantra; they must defend it against hostile or indifferent alternatives, and show what they believe is at stake.
That is what Martin Krygier seeks to do in the book he is working on at the IWM. The critical jumping-off point of the argument is a critique of conventional approaches which, notwithstanding many differences that seem important to their authors, all have in common that they start in the wrong place – typically a lawyer’s definition of the rule of law; go on in the wrong way – asking what something so defined (and limited) can do for us; and end in the wrong place, with a narrow, parochial lawyers’ answer to a universal social and political problem. No wonder, as has been said of a good man, the rule of law is hard to find.
Martin Krygier argues that we should start and go on differently: first to ask, not what the rule of law is, but what it is for: what’s the point, why it might matter, and what would need to be achieved to make it. Only then can one ask what might be needed to do so. Answers will differ with contexts, times and circumstances. Typically they will have to go beyond the usual suspects.
So start with the problem and move from there. The specific problem for the rule of law to solve, he contends with no pretence of originality, is arbitrary power. The character of any solution must be to temper power’s exercise to keep arbitrariness to a minimum. Then the question (the third question) is how to do that. That, almost certainly and everywhere, will depend on a lot more than conventional rule of law talk suggests. For the ideal of the rule of law is never a purely legal one, but always social and political as well. Solutions will differ, many will not involve, or will go beyond or underlie or stand beside law, and the stakes are high.
Martin Krygier is Professor at the Law and Justice Department of the University of New South Wales in Sydney, Australia.
IWM Permanent Fellow Ludger Hagedorn will open the colloquium.
Adam Sitze, John E. Kirkpatrick 1951 Professor in Law, Jurisprudence and Social Thought at Amherst College, Massachusetts, and Visiting Fellow at the IWM, will provide the comment.