The rule of law is a concept at once too important to ignore, and too confused and confusing to guide. It needs and deserves re-imagining. Moreover, if we are to understand its character conditions and consequences, the legal imagination, if such a solecism be allowed, is as likely to hinder as to help. This is particularly the case today when the rule of law, after an unprecedented period of international ‘hurrah-term’ popularity is assaulted by new foes, populist especially but not alone, all over the globe. Traditional lawyers’ nostrums seem increasingly effete in response.
I believe the value of the rule of law needs robust defence, but the ways we approach that value – both intellectually and practically - need to be substantially re-imagined. Neither recycled, on the one hand, nor discarded, on the other, but re-imagined. Not recycled, since conventional understandings have too often led to misguided explications, identifications, expectations, and efforts, quite apart from the waste of huge amounts of money. Not discarded, since like reflection on many of the most important (and also contested) concepts in the lexicon of political and legal morality, such as justice and democracy, equality and liberty, the rule of law engages us in fundamental issues of politics, morality, philosophy, and law (not to mention economics, which I don’t mention only because I don’t understand it). Instead, while we should start from traditional understandings and insights, we cannot end there.
This paper argues for a reimagining that will avoid the ineffectiveness, helplessness before change, complicity in subversion, and irrelevance, of conventional understandings. The approach begins by asking about the point of the rule of law, what it might be good for, and then advocates moving from there to contingent and variable answers to questions about how to get there. We must also be prepared to amend both questions and answers, indeed re-imagine them quite radically, where they mislead or do not lead far enough. So much so, that to further the ends of the rule of law, we might need to leave conventional imaginings of it far behind.
Martin Krygier is Gordon Samuels Professor of Law and Social Theory, UNSW, Adjunct Professor at RegNet, ANU, and recurrent visiting professor at the Graduate School of Social Research, Warsaw, and the International Institute of Sociology of Law, Oñati. He is a fellow of the Australian Academy of Social Sciences. His most recent book is Philip Selznick. Ideals in the World. In 2005, he published Civil Passions, a selection of his essays on matters of public debate. Between Fear and Hope. Hybrid Thoughts on Public Values was published, as the ABC’s Boyer lectures, in 1997. 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. Posthumous Reflections on Politics, Society, and Law; Bureaucracy: The Career of a Concept. 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.