In the act of cheating, the cheater (mis)represents himself as conforming with the norms. What prevents constitutional cheating (and resulting arbitrariness) from prevailing in a constitutional democracy is moral and cultural restraint among constitutional actors, resulting from the restrictions and conventions that decent politicians, administrators, and lawyers accept. Moreover, there are institutional mechanisms of constitutional and subconstitutional supervision that patrol the abuse and other misapplications of the law. These are the first to disappear in illiberal democracies. Here the legislative branch and the judiciary engage in professionally indefensible gimmicks. The unfaithfulness to the principles of constitutionalism and the narrowness in interpretation disclose the importance of cheating with law as a central legal and social technique of illiberal democracy. The various legislative and interpretative techniques of legal cheating (circumvention, circularity, denial of facts, denial of jurisdiction, etc.) become systematic in illiberal regimes, undermining public morality.

Once populist forces win elections, they follow a similar blueprint to transform the constitutional structure. The populist forces obtain control over the institutions that are central to constitutional power. The steps typically include filling the public administration and apex courts with loyalists, control over the media and autonomous organizations, and increased executive power in the hands of the populist leader. Populist forces promise authenticity and a government (state) that will cater to the people. These are political projects; the constitutional aspects are secondary, and where constitution-making is possible, it has been used to enable the new state, serving the interests of the new elite formed around the Caesaristic leader. The trajectories and exercise of power depend on the availability of a new constitution.

The introduction sets out the scope and objectives of the study, locating it within the relevant literature and diplomatic context of State Party negotiations over parental child abduction.

Chapter 5 examines the traditional Islamic rules on jurisdiction. Modern rules on the jurisdiction of domestic courts exist in the context of the system of States, whereas the historic Islamic rules on jurisdiction and the assumptions upon which they were based relate to a system which was premised upon an imperial ideal that approached core concepts of modern Private International Law from different vantage points. The manner and extent to which pre-modern substantive rules, coupled with an imperial imagination, have permeated into the modern domestic law of Muslim Family Law States differs between such states, but nonetheless reveals a shared problem that we suggest animates the ongoing debates around the 1980 Hague Abduction Convention. Policies of ‘Islamisation’ pursued in certain Muslim Family Law States have at various times sought to reintroduce selected interpretations of Islam into the areas of domestic law pertinent to the study. Thus, the process is not necessarily a linear one over time where the historic rules have become marginalised, but rather one where there is an ebb and flow over time – the extent of which differs between Muslim Family Law States.

‘I have touched no question’, Justice Benjamin Curtis observed in Dred Scott v. Sandford, ‘which … it was not absolutely necessary for me to pass upon’ in order ‘to arrive at a judgment on the case at bar’. Curtis’s reasoning in Dred Scott might have been necessary to his own judgment – which was a dissenting opinion – but it was not necessary to the judgment of the United States Supreme Court. A dissenting opinion is, technically speaking, an obiter dictum. It is in the nature of an obiter dictum that it can be removed from the narrative of a case without the decision in the case being affected.

The origins, social function, and the legitimacy of law were life-long preoccupations for Judith Shklar. She was one of the first political philosophers in the Anglo-American tradition after World War II to devote intense attention to the role of law in liberal-democratic societies. In this respect, her work is more in line with European thinkers such as Max Weber, Franz Neumann and Harold Laski, and, of course, her adviser, Carl Friedrich, who was the first to recommend to her that she consider the topic of legalism.

Is there an “international rule of law movement”? Undoubtedly there exists a network of international bodies claiming to “work on” what are often called rule of law “issues,” many of whom use this term and do so self-referentially.2 These groups are not concerned with an “international rule of law,” whatever that might be, or indeed with international law more broadly. They are “international” in the sense that they comprise cross-border networks, and in that they approach the “rule of law” in a quasi-constitutional sense, abstracted from any specific (national) polity.

What is the rule of law, and under what conditions does it become a self-reinforcing, stable order? Missing from the various literatures that have attempted an answer is a coherent attempt to create a satisfying account of the microfoundations of the behaviors that generate and sustain a distinctively legal order. Whether philosophical or applied, existing approaches to the rule of law have neglected the question of what, exactly, is distinct about law’s rule. We do not yet know enough about what sets legal ordering apart from other strategies of ordering, be they economic, political, or violent.1 This chapter responds to this lacuna. In so doing it gives an account of the kinds of things required for a positive theory of the rule of law.

With the publication of his lectures on constitutional law in 1885, A. V. Dicey introduced an account of the rule of law that would have, for better or worse, a powerful influence. His book, Law of the Constitution, is an extended essay on how the law of the English or British constitution is the expression of two basic principles, the rule of law and parliamentary sovereignty. These ideas were not new to English legal writing, but Dicey succeeded with impressive literary flourish to elevate them to the status of the organizing principles of the constitution.

As composite polities, empires were plural legal orders. Conquest, settlement, and rule depended on elaborate arrangements to manage the relation of imperial law to local or indigenous law. Calls for impartial justice in empires emerged in the context of intricate legal conflicts over order and rights, with varied institutional trajectories as the result. The rule of law in empires must be approached as part of the history of legal politics in fluid, fragmented systems of law.