The legal system under the rule of law binds authority. Problematically, however, this same authority, which is supposed to be limited, creates and applies the law. The rule of law requires that the ruled and ruler be subject to the same law. “It just happens” in illiberal democracy that this same law favors the ruler. Here is where illiberal democracies depart from constitutional democracies. Of course, bending the law occurs often in the latter, but this is not systematic, and even if it were, there are effective (legal) means of correction. If such correction fails this is sufficiently known, demonstrated, and condemned, and once legal self-correction fails, democracy may provide it by electing more rule of law-committed rulers. That is not the case in illiberal democracies, where for purposes of power aggrandizement the authorities will twist legal structures, including application of the law. This does not mean that laws will fail to protect expectations nor that results cannot be foreseeable, but that they enable bias and favoritism, in violation of equality and reasonableness.

“The prevailing force that generates and sustains illiberal power is not tied to specific social and economic conditions. In illiberal democracies, the political shapes society by creating and reinforcing specific mindsets and dependencies. The political and resulting social power of the plebiscitarian leader originates from a system of personal dependencies and from the belief that the leader is indispensable in the permanent chaos. The leader’s political power enables him to set the rules of the game. Illiberal democracies are neopatrimonial regimes, but here personal rule exists hand in hand with a bureaucratic, formal rationalistic system. The ruler pretends not to be above the law, and his state and its officials act as authorized by law.

The plebiscitarian leader operates a patronage system and determines who gets what from the state, but the beneficiary may hold state resources as a prebenda only. With increased state control over social resources individuals become dependent of the state and the leader and autonomous organizations lose their autonomy. This is the material source of power of the leader that enables him to rule in a plebiscitarian democracy.”

For readers of legal philosophy, the title of this entry is likely to generate an expectation of a discussion that runs something like this. In the mid-twentieth century, the idea of the rule of law began to figure prominently and problematically within the long-standing debate between legal positivists and natural lawyers about the connections between law and morality. The question that presented itself for answering was the following. Could the positivist “separability thesis” – the argument that there is no necessary connection between law and morality – be said to hold with respect to the connection (if any) between the concept of “law” and the concept of “the rule of law”?

The plebiscitarian leader’s legitimacy is based on the tenets of populism: the people versus an elite opposition, and the promise that this time the government will follow the will of the authentic people. The primacy of popular will turns the regime against the self-constraining institutions of democracy. Populism as a movement and ideology is based on exclusion. Its anti-institutionalism and rejection of political mediation is contrary to democracy as rational decision-making. This rough democracy is deprived of its constitutional protection against the arbitrariness of the genuine will of genuine people. With this point of departure, the natural choice of the leader is to turn plebiscitarian. The leader claims that there is a direct relation between government and people. “The people,” as a concept used by populists is highly problematic for constitutional culture, even if the collective action of citizens (in specific circumstances) forms a bulwark of the constitutional system and the people’s properly institutionalized action plays an indispensable role in the system of modern checks and balances.

The rule of law is a sane idea gone big. Ever since Albert Venn Dicey, in 1885, popularized the phrase to describe the English way of law, it has left an indelible mark on societies the world over, and not always in a beneficial way.4 Unmoored from the context in which – and for which – it was first formulated, the idea has turned into a doctrine, some even think of it as an ideology. With its ancient origins, medieval roots, and modern instantiations, the idea of the rule of law – known by most, contested by many – has informed local and global ways of life like few other figments of our imagination.

Chapter 6 examines the Muslim Family Laws of the United Arab Emirates, Tunisia, and Malaysia in light of their jurisprudence on jurisdiction. The selection of these states represents a geographically, culturally, and legally diverse sample, across which Islamic Law remains legally relevant. The chapter examines how differing approaches to jurisdiction or child custody have been adopted and what the implications of these are or may be in the context of seeking to address international parental child abduction. The selected case studies highlight different approaches that lend themselves to finding solutions to addressing international parental child abductions. One matter that traverses all three case studies concerns the capacity of domestic judges, with subject matter jurisdiction on family law, to think jurisdictionally. As the case studies show, a key concern for policy-makers in Muslim Family Law States has been to consider a whole-of-law approach to jurisprudence. For others, the challenge lies in recognising the Muslim Family Law States as disaggregated institutionally, and to strategise approaches that are institution-specific.

This Companion provides an introduction to the theory and history of the rule of law, and thus to one of the most frequently invoked – and least understood – ideas of legal and political thought. Not so long ago, the “rule of law” was regarded as a rather esoteric expression, one employed by common lawyers – alongside such expressions as the Rechtsstaat, État de droit, and Stato di diritto that their continental confrères invoked – to identify certain technical features of the legal systems in which they worked.

A wave of populism is now sweeping across the advanced democracies in the northern hemisphere, overturning the conventional sense that since the mid-twentieth century populism has been primarily a phenomenon of countries with personalized, presidential political systems and radical inequalities, with Latin American countries providing prominent examples. Populism evidently poses a major challenge to prevailing political systems, placing pressure in particular on established patterns of partisanship and hence on political parties. These factors, along with increasing reliance on “directly democratic” decision-making mechanisms such as referenda, raise questions about some very basic aspects of the rule of law and other features of modern constitutionalism.

Two things are certain about the rule of law. First, it is not the rule of men.1 Second, it is important: it protects those living under governments that are guided by it from authoritarianism, totalitarianism, and, quite possibly, “anarchy and the Hobbesian war of all against all.”2 Beyond those two certainties, however, much confusion reigns. Indeed, the rule of law is an “essentially contestable concept,” and paradigmatically so.

In his lectures on the history of political thought given at the London School of Economics and Political Science (LSE), Michael Oakeshott, the most important English political philosopher of the twentieth century, emphasized the remarkable accomplishments of the Romans. While they may not have produced philosophers of such distinction as Plato and Aristotle, the Romans had shown “a genuine genius for government and politics.”1 The fruits of this political genius were evident in the establishment of “a political community, a civitas, a state, out of tribal societies,” in “creating the Roman people, the populus Romanus, out of a miscellany of different peoples,” and in generating the sense of a people united in a distinctive mode of association.