Given the connection of “law and order” politics with conservatism, the idea of a conservative critique of the Rechtsstaat at first seems contradictory. After all, wasn’t John Adams’s insistence on defending the British soldiers involved in the Boston Massacre used as evidence for his conservatism? Didn’t Burke’s criticism of the French Revolution revolve around the preservation of law as part of a concrete order? But law and order are not identical and it is in the tension between the rule of law and the well ordered society that the possibility for conservative critique of the Rechtsstaat lies. In a time of revolutionary upheaval, furthermore, when revolutionaries proclaim the law, the legal side of “law and order” can come under fire as well.

Illiberal democracy is a special constitutional arrangement: it is a plebiscitarian democracy unfolding the totalitarian potential within a democratic system. As a centralized power, it intends to perpetuate the rulers’ monopoly over the state, relying on the falsification of classical (liberal) constitutionalism. These features offer sufficient family resemblance to treat them together for the purposes of constitutional theory. Illiberal democracy takes an instrumental attitude to constitutional institutions. Amendments to the constitution take place according to the momentary interests of the political power, like in any democracy without extremely cumbersome amendment rules. The ultimate attachment to the spirit of the constitution, the idea of respecting an unamendable core, is missing. There is no commitment to underlying principles; appearances matter, not authenticity. Hence the inevitable duplicity and deceit in the constitutional and legal system of illiberal democracy. The constitution is not an entrenched, higher order law but a practical tool to solve emerging conflicts in an illiberal and nondemocratic way (imposing arbitrary will as supreme command).

To speak of “the rule of law” in many of the Muslim countries of the world at present may seem, not only to Westerners but to many citizens of the Islamic world, at best hypocritical and at worst a cruel joke. How, after all, can one speak of the rule of law when a woman may be killed for a marriage not approved by her father or brother, when a constitution can be changed at the whim of a ruler, or when corruption is so pervasive as to leave much of the citizenry feeling dirtied and disaffected? And yet the rule of law remains more than an ideal, more than a vague concept, and more than a useless analytic concept employed only by academic lawyers. For if we try to understand the rule of law not as a universal concept but for what it means in the context of any particular cultural tradition and its system of law, it may be possible to discern features that are not incompatible with the sense in which this phrase is commonly employed.

Herodotus’ Persian debate – a fictional conversation between three noble Persians on the relative merits of rule by one, rule by the few, and rule by all – ironically provides one of our clearest statements of Greek democratic theory.1 In the debate, Otanes, arguing for rule by all, highlights what are recognizable as the key features of Athenian democracy: isonomia (equality under the law); selection of magistrates by lot; accountability for officials; and decision-making in a deliberative popular Assembly.

The “rule of law” is a relatively recent addition to the development project.1 Only after the end of the 1980s, when the Cold War was over, history had ended,2 and three worlds had putatively become “one,” did it also become commonsensical for law, institutions and “governance” to be understood as integral to “development.”3 Since that time, not only have developmental institutions such as the World Bank, the International Monetary Fund and regional development banks explicitly taken up promotion of the rule of law as a core aspect of their mandates, but a significant marketplace of international, transnational, government, and domestic actors has emerged.4 The result is a multi-billion dollar industry that is centrally concerned with “the rule of law” as instrument, end, and indicator of “development,” positioned at the heart of state-making more broadly.

These words appear in a short eleven-page passage headed “The rule of law” in E. P. Thompson’s 300-page historical study of one British statute enacted in May 1723. Yet the passage, and particularly the quoted words, received enormous attention at the time and since, provoking widespread criticism as well as praise.2 Edward Palmer Thompson (1924–1993) was probably the best-known British historian of the second half of the twentieth century, acclaimed for The Making of the English Working Class.

We digress when, in intending to make a point, we either temporarily or permanently deviate from it. Digressions can be deliberate or unconscious. They can be to good or bad – or a mixture of good and bad – or to no effect. Distinguishing the digressive from the non-digressive is not always straightforward: comments offered as asides can strike at the very heart of a matter, just as narrative which a reader thinks peripheral might be the author’s fil conducteur. Common-law judges often digress in the course of making legal decisions. The standard characterization of these digressions is that they are observations which are not integral to a decision that has been reached – that they could be taken out of a judgment without that judgment being undermined. The full legal Latin term for these observations is obiter dicta.

Tucked away in a minor footnote to the final chapter of Between Facts and Norms, Jürgen Habermas (b. 1929), the Frankfurt School’s premier second-generation representative, offers a tantalizing remark about Franz L. Neumann (1900–1954), his predecessor at the Institute for Social Research and its most impressive first-generation legal thinker.

The difference between the idea of the Rechtsstaat and that of the rule of law is more than a variation on a theme. Theorists and practitioners of law’s rule would do well not to equate – for analytical as well as practical reasons – the Anglo-American way of law with what Leonard Krieger called “the German idea of freedom.”2 And yet they have and will – to the detriment, I argue in this chapter, of understanding and prescription.

Illiberal governments claim that their regimes are simply constitutional and democratic - period. In their line of offense/defense, they are as democratic and constitutional as any other, only more popular and therefore more genuine. The term illiberal democracy is not an oxymoron. The regimes in Venezuela under Chávez, Hungary after 2010, or Poland from 2015 are indeed democracies, but in the plebiscitarian leader democracy sense, as described by Max Weber (with clear despotic potential). Illiberal democracies are democracies of a troubling sort, enabling the totalitarian potential inherent in mass democracy. Illiberal democracies bring to light the authoritarian elements in liberal constitutions, which are historically unfinished and internally vulnerable. The illiberal (authoritarian) elements (enclaves) that inevitably exist in constitutional systems are unleashed in the constitutional order of the plebiscitarian regimes. The illiberal transformation of constitutionalism is facilitated by the authoritarianism inherent in the constitutional order of established democracies and by the populist mobilization of authoritarian predispositions in the citizenry.

State punishment, understood as hard treatment or the restriction of the liberty of the individual, has been central to modern debates about the rule of law. As a form of “dramatically coercive and burdensome” state action against the individual, punishment raises distinctive issues about the relationship between a state and its citizens, and as such requires particular justification.1 These questions of justification are typically seen as questions of who may be punished, and for what, the identification of legitimate and illegitimate forms of punishment, and indeed of the processes that must consequently be respected by the state if it is to impose justified punishment.2 It can therefore be seen that these questions are important not only in terms of justifying actual inflictions of punishment on particular individuals, but also in terms of legitimizing the institution of punishment more broadly.

The rule of law is a central theme of Montesquieu’s major work, The Spirit of the Laws (1748), and in many respects it forms the conceptual core of his political theory. For Montesquieu, the rule of law means that the use of political power is subject to the formal constraint of standing rules that are codified in the positive laws of the land. It means that no one is above the law and that the actions of the state must conform in a consistent way to publicly known standards. The rule of law is the single most important factor, as Montesquieu sees it, in establishing moderation in government and therefore in protecting political liberty.

We live in an age of measurement and quantification which has produced cross-national indicators of concepts like gender equality, war and peace, and gross national happiness, to name just a few.1 The rule of law (RoL) is no exception and recent years have seen a proliferation of indicators that are the subject of a nascent literature.2 The literature points out that indicators inherently reduce complex social phenomena to simple measures with a corresponding loss of information but an increase in tractability.

This chapter will analyse the discourse in France on the relatively new French expression État de droit.1 After an unsuccessful first rise in its use at the beginning of the twentieth century (1907–1930s), the term has since 1977 progressively informed the language of French constitutional law scholars and even penetrated the language of specialists of other legal disciplines, politicians, journalists, and, to some extent, of ordinary citizens.