Introduction

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. Over the last several decades, however, its usage has expanded rapidly and has now become a key phrase in the vulgar tongue of contentious politics, domestic and international. And in the process, it seems to have been converted from a technical phrase into a rhetorical slogan – an expression of such generality that it can be filled with whatever values the heart desires. For this reason, the rule of law now circulates in the marketplace of ideas as a debased currency.

This being so, ours is an opportune time for a major exercise in reappraisal. Several questions are addressed: What is the rule of law? What should it be? Whatever it might be, is it worth having if it cannot sustain the liberty of all citizens? Is it worth promoting if it can be used not just to bolster democracy but also authoritarian varieties of rule? What can be done about the rule of law? What can be done with it? What are the virtues of the rule of law? What of its vices? Our volume speaks to the meanings and machinations, to the values and violence, of the rule of law. We present it as “a noble but flawed ideal,” a phrase we borrow from Martha Nussbaum, who recently found wanting another cherished tradition in the Western canon.Footnote ¹

During another stock-taking two decades ago, José Mará Maravall and Adam Przeworski opined that the “normative conception of the rule of law was a figment of the imagination of jurists,” one that was both “implausible as a description” and “incomplete as an explanation.”Footnote ² We agree, but our way of approaching the rule of law is not as rigidly rationalist as theirs. We come to it from an interdisciplinary perspective, one that draws on the scholarship of anthropologists, historians, philosophers, sociologists, and political scientists as well as lawyers, so that, with a bit of luck, our way of seeing the rule of law will be commensurable with both nomothetic and ideographic modes of reasoning.Footnote ³ To this end, we have invited a wide range of leading scholars to examine specific aspects of this topic, in the hope that will help us reassess both the promise of the rule of law and its limits.

Our contributors ask thorny questions about the appropriateness as well as the utility of the rule of law as a social imaginary for tackling the most pressing issues of our times. Our conviction is that in order to make sense of the rule of law today – both literally and figuratively – we need to view it as a social phenomenon with diverse and contradictory instantiations. To bring it into sharper focus, we commissioned chapters to reconsider key histories (Part II) and moralities (Part III) of the rule of law, and to trace notable pathologies (Part IV) and trajectories (Part V) thereof. In a substantial concluding chapter (Part VI), one of us reflects critically on the insights gleaned from surveying the landscape of the rule of law in the four preceding parts. The far-ranging analysis, which doubles as a very short introduction to the topic, culminates in a call for a realistic theory of the rule of law.

Allow us to say a little more about the organization of what is to come – and why, and how, the arguments of our distinguished contributors are relevant to thinking about the rule of law.

Histories

An argumentative thread running through our collection is the claim that we are better off to speak of rules of law, in the plural, than to imagine the rule of law as a singular phenomenon. Part II consists of five chapters that speak to the motif of multiples. Adriaan Lanni, Jens Meierhenrich, Luc Heuschling, Lawrence Rosen, Lauren Benton, and Lisa Ford introduce us to alternate realities of the rule of law. They alert us, if you will, to the changing character of the rule of law. Moving deftly across space and time – as well as cultures and legal traditions – this set of perspectives highlights not only the need to think about the variety of practices that over the centuries have come to be associated with the expression of the rule of law, but also the importance of historicizing, locally, its plethora of meanings.

To start us off, Lanni corrects significant misconceptions about the prehistory of the rule of law. Reconstructing from court practices and written texts of the period, she explains how the law ruled in ancient Athens. We also learn why Plato and Aristotle regarded with disdain these radically democratic Athenian practices. Less concerned with what worked in practice, and more with what they thought should apply in principle, Plato and Aristotle advocated more robust conceptions of the rule of law, with a stricter application of written law, than the city-state actually practised to sustain its exclusionary social order.

Meierhenrich, next, demonstrates that the difference between the concept of the Rechtsstaat and the rule of law is more than a variation on a theme. He argues that, globally speaking, the idea of the Rechtsstaat has been no less influential than the idea of the rule of law. Comprising a distinct meaning, the Rechtsstaat has left its institutional imprint on societies far and near. This continental European idea – which he calls “rule under law” – pre-dated the Dicyean conception of the rule of law by at least half a century. As a global phenomenon, the Rechtsstaat tradition has long rivalled that of the rule of law, which over time, and in certain parts of the world, it has grown to resemble. Given the practical importance of the Rechtsstaat tradition from the long nineteenth century to the present, Meierhenrich believes it imperative not to equate it – and the manifold everyday practices it has since inspired – with the rule of law tradition. Local histories of convergence, he cautions, must not distract us from the fundamental differences – historical, philosophical, conceptual – at the heart of these two contending ways of thinking about the concept of law and the manner of its rule.

Heuschling picks up the thread of the Rechtsstaat from Meierhenrich and weaves it into a historical narrative about the “Gallicization” of the neologism. What, he asks, did the French stand to gain from importing the German way of law? He develops an answer by analyzing the antecedents – and the aftermath – of the transplantation of the Rechtstaat during the Third Republic. Heuschling explains what prompted Léon Duguit in 1907 to come up with the concept of the État de droit, France’s variation on the German idea of freedom. His chapter tells a story of legal change. From the Third to the Fifth Republic, Heuschling traces the meandering logic and effects of a little-known legal transfer and reconstructs the discursive formations involved and the resistances encountered.

Lawrence Rosen’s chapter leads from the Rechtsstaat tradition to Islamic conceptions of the rule of law. After introducing histories of the rule of law – as this chapter understands the term – in Islam and the development of Islamic legal thought over the centuries, Rosen identifies common cultural themes that cut across rival approaches to law in the Islamic world. He relates the principal ideas of classical legal thought – with their focus on the Quran, the Traditions of the Prophet, and the four main schools of law – to the role of custom (‘urf, adat), which, Rosen argues, in practical terms is often the prevailing source of law. From the Malays of Sumatra to the Berbers of North Africa local custom is shari‘a – and not infrequently it acts as a constraint on the strict application of formal law. In his phenomenological account, Rosen also highlights the significance in Islamic conceptions of the rule of law of norms such as bargaining and equivalence, institutions such as the marketplace and the judiciary, and procedures such as rules of evidence, all of which commonly function as enabling constraints. Viewed from the vantage point of the everyday, Rosen notes, a considerable overlap between Muslim and non-Muslim visions of the rule of law exists. His chapter reinforces the sense that the exploration of singularities is thus a necessary precondition not only to theorizing the rule of law but also to evaluating its social performance, in all senses of that term.Footnote ⁴

Benton and Ford also agree that there is more than one history of the rule of law to be told. They address “empire’s neat but jarring place in the history of the rule of law,”, thus acquainting readers with the dark sides of virtue. Noting that the rise in rule of law rhetoric coincides with the moment “when European jurists surveyed that world’s laws and found all but their own wanting,” they nevertheless remain alert to the need to avoid a reductionist portrayal of this jurisprudence of power. Benton and Ford show imperial legal orders were fluid, layered, and, above all, plural. With special reference to the British Empire, they contrast strategies of “imperial legal ordering,” these techniques of authoritarian rule, with the variegated rights regimes that local conditions demanded. Although the rule of law emerges as a shadowy figure in their account, Benton and Ford caution that no unified idea of an “imperial rule of law” ever existed.

Moralities

Turning from histories to moralities, the third part of our collection explores the intelligibility of the concept of the rule of law. Our contributors here review the work of some of most important theories – and theorists – of the rule of law in the Western canon.

Jeremy Waldron sets the scene by reprising his well-known argument about the rule of law as an “essentially contested concept,” which is the label the British philosopher Walter Bryce Gallie used to describe a term so vague that its diverse meanings are symptomatic of a chronic condition that cannot be healed conceptually. Gallie maintained that “displaying a certain kind of semantic vagueness, essentially contested concepts make it necessary to resort to historical considerations as a way to settle the disputes over their meaning.”Footnote ⁵ Gallie’s hermeneutical enterprise charts “a middle ground between a radical form of historicism, which sees all symbolic phenomena as the product of contingent historical trajectories, and an antihistorical form of realism, according to which the meaning of concepts and standards are fixed and just waiting to be discovered.”Footnote ⁶ In Chapter 6, Waldron explains the relevance of this argument for thinking about the rule of law. His application of Gallie to discursive formations related to the rule of law sets the scene for the more detailed investigations of individual moralities that follow.

In those chapters, by Sharon Krause, Mark Walters, Martin Loughlin, Kristen Rundle, and Douglas Hay take turns to assess some of the most influential arguments in defense of the rule of law as a moral idea. Krause introduces us to Montesquieu’s masterwork of 1748, The Spirit of the Laws. We learn why Montesquieu placed his faith in the role of institutions to curb arbitrary power, and what convinced him that these institutions were essential to achieving the rule of law, that is, to crafting standing rules. “[J]ust as the sea, which seems to want to cover all the earth, is constrained by the grasses and the smallest rocks that are found on the shore,” Montesquieu wrote, “so monarchs whose power seems to be without limits, are constrained by the smallest obstacles.”Footnote ⁷

In addition to advocating intermediate constraints, Montesquieu was a proponent of using “fundamental laws” to curtail the reach and rule of the prince. Krause notes how important it was for him that the institutions of legality, and the laws they produced, were responsive to the “spirit” of the nation and the dispositions of the people as well as to the laws of nature and to such virtues as equity, proportionality, and moderation. These were sense-giving features of the rule of law, and so for him were moral psychology and everyday practices. According to, Montesquieu, the rule of law was a cocktail of the right passions. The rule of law, as he saw it, had to be general and flexible. It was a concrete abstraction, if you will: contingent on local mores, but answerable to universal values. As Krause’s chapter makes plain, Montesquieu’s vision of the rule of law was one of the first to treat legality and legitimacy as indivisible – and as indispensable to the protection of liberty.

Albert Venn Dicey followed Montesquieu in emphasizing the vital significance of maintaining a spirit of legality, as Walters shows in Chapter 8. He explains what makes Dicey’s account of the rule of law quintessentially Anglo-Saxon, and why it was more than the unfortunate outburst of parochialism Judith Shklar believed it to be. Dicey’s treatment of the rule of law, a term to which he gave systematic meaning but did not invent, was one of the first integrated accounts of what Alexis de Tocqueville thought of with admiration as the legality of English habits. Dicey, writes Walters, was seized of the ambition to give the vague assumptions that Tocqueville and other foreign scholars were making about English governing practices formal legal expression – and under the banner of the rule of law.

The idea of the rule of law that runs through Dicey’s Introduction to the Study of the Law of the Constitution of 1885 hinges on the importance of parliamentary sovereignty and on the supremacy of the ordinary law. In this common law conception of constitutionalism, Walters explains, the attribute of the rule of law Dicey regarded as definitive was the requirement that governmental powers have parliamentary authorization. Safeguarding this requirement was the revered institution of the judiciary. By marching in lockstep, parliament and the courts would hold prerogative rule in check.

Dicey’s account extrapolates from sources he knew best. He was at pains to distinguish the English case, sometimes chauvinistically, from what he perceived to be France’s perverse constitutionalism, as represented by the idea of the droit administratif. Walters tells us that formal requirements such as generality, prospectivity, clarity, and intelligibility, were of secondary importance in Dicey’s scheme. He was a nationalist first, and a formalist second, and he valued concreteness over abstraction. For this reason, we should not read Dicey out of context. His conception of the rule of law is decidedly local – a theory of the rule of law in the vernacular. He was uniquely attuned to the rule of law as a social imaginary, which is why reading him in the twenty-first century can be rewarding, especially when thinking about cultures of legality, which for good reason is now de rigueur.Footnote ⁸ “A significant strength of Dicey’s account,” one commentator recently noted, “is that he does not confine the rule of law to the conduct of state officials.”Footnote ⁹ But on the negative side, as Judith Shklar highlights, by equating the concept of the rule of law to the English practice, he essentialized the idea. And that explains why Dicey’s magnum opus remains an influential but dispensable morality tale about the rule of law.

In Chapter 9, Loughlin examines Michael Oakeshott’s argument that the rule of law expresses the idea of the state as a moral association. Oakeshott’s account is rather different from Dicey’s, and Loughlin explains why. He highlights Oakeshott’s debt to Roman legal thought, especially to the concept of respublica, and explains why he conceived the rule of law to be an essential ingredient of “the civil condition.” Loughlin also unpacks what Oakeshott’s ineffable idea of the jus of lex entails. Re-reading Oakeshott, he concludes that ultimately it represents a republican conception of the rule of law, one that is, above all else, “a self-sustaining model of association identified in terms of the ascertainable authenticity of lex.”Footnote ¹⁰

Morality was also an important theme for Lon Fuller, although he eschewed the term itself in his relational account of the rule of law. Rundle reminds us that the meaning Fuller wanted to convey by speaking of “morality” in relation to the concept of law was very specific and must be distinguished from other, broader rule of law moralities. Chapter 10, then, addresses the task of uncovering the morality of the rule of law as Fuller understood it. His mission, Rundle explains, was to articulate the moral demands appropriate to the structuring of one particular relationship: that between the lawgiver and the subjects of law. The logic of their interactions, Fuller believed, cut to the heart of what it meant to govern through law, which is why he set out to capture it as precisely as he knew how. Rundle explains how Fuller did this, how he fared against such interlocutors as H. L. A. Hart and Joseph Raz, and what import his argument about the internal morality of (the rule of) law has for our time.

In Chapter 11, Douglas Hay provides an intellectual biography of E. P. Thompson, whose argument about the rule of law is widely known but rarely studied. Most scholars and practitioners of the rule of law are familiar with chapter 10, section iv of Whigs and Hunters, the 1975 book in which Thompson famously – and controversially – asserted that the rule of law was “an unqualified human good.” Few, however, are familiar with the 258 pages of fine microhistory that preceded it, and fewer still with Thompson’s pioneering social historical work of which that book forms but one part.Footnote ¹¹ Hay, a student of his teacher’s, situates Thompson’s argument within the Marxist debates of the 1970s and explains why we should care about the Black Act of 1723.Footnote ¹² We learn that, unlike Dicey, Thompson did not hold the English judiciary in high regard, neither those of the eighteenth century whose actions and cases he studied in the archives, nor those from the twentieth century who, he argued, aided and abetted the modern security state. By inviting us into his collaborator’s world, Hay helps us to see Thompson’s argument about the rule of law in a new light and to appreciate its continuing relevance to analogous debates in the twenty-first century.

When Whigs and Hunters was published, Thompson, the world’s leading historian of class and one of the founders of the “first” New Left, received a considerable degree of criticism from certain strands of Marxism. One such barrage came from scholars in Critical Legal Studies (CLS), the progressive movement that formed in several US law schools in the mid-1970s.Footnote ¹³ Morton Horwitz, the doyen of critical legal historians in the United States – in what may well be the most cited book review ever published – was incredulous.Footnote ¹⁴ Hay, in his contribution to this collection, explains what all the fuss was about, why Thompson’s argument has stood the test of time, and why it ought to be read by those who do not know it – and re-read by those who think they do.

The final two chapters in Part III of our Companion switch gears and turn from influential theorists to influential theories of the rule of law. Brian Tamanaha gives functional theories of the rule of law their due, and Gillian Hadfield, Jens Meierhenrich, and Barry Weingast consider the payoffs from using game theory to think more formally about the rule of law.

Tamanaha examines the kinds of things that the rule of law is used for. Thinking about the functions of the rule of law for him is not about foregrounding the ends of law, but, rather, the kinds of contributions it has been shown to make in people’s lives. Tamanaha distinguishes between manifest functions, such as the provision of security and the imposition of constraints, and latent functions, from the elevation of legal specialists to the entrenchment of powerful interests. The rhetorical invocation of these and related functions of the rule of law, says Tamanaha, is often a sign that the rule of law matters, that it has social relevance. Indeed, there must be something special going on if socialists like E. P. Thompson, establishment lawyers like Lord Bingham, libertarians like Friedrich Hayek (who went to great lengths to deny that he was a conservative), and authoritarians like Viktor Orbán, the Prime Minister of Hungary, all are able to imagine the functions of the rule of law to be compatible with their vastly divergent social imaginaries.Footnote ¹⁵

The question that Hadfield, Meierhenrich, and Weingast address in Chapter 13 is deceptively simple: What, reduced to its essence, 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 to answer it, they argue, is a satisfying account of the microfoundations of the behaviors that generate – and sustain – a distinctively legal order. A cognitive manifesto in hand, they show that existing approaches to the rule of law – both philosophical and applied – have neglected the question of what, exactly, is distinct about law’s rule as contrasted to other forms of rule. We do not yet know enough, they argue, about what sets legal ordering apart from other strategies of ordering, be they economic or violent. Their chapter begins to fill this gap. In it, Hadfield, Meierhenrich, and Weingast advance a positive theory of the rule of law.

Pathologies

The next part continues with our examination of theorists and theories of the rule of law. But the perspectives we showcase are decidedly more critical. Whereas the focus in Part III is on the virtues of the rule of law, Part IV concerns its vices. We assembled seven critiques in total. Two revolve around critical thinkers – Thomas Hobbes and Judith Shklar – the remainder around the most important schools of critical thought, both conservative and progressive.

David Dyzenhaus enters the fray with an inquiry into the idea of rule by law. Those fond of it distinguish the notion from that of the rule of law. Many who are, see an ally in Thomas Hobbes. Hobbes thought rather differently about the law than Sir Edward Coke, the seventeenth-century standard bearer of the rule of law tradition in English legal thought. But it would be wrong, Dyzenhaus maintains, to regard Hobbes as an intellectual forerunner of Jeremy Bentham and John Austin whose command theories held that law is what the sovereign makes of it. Dyzenhaus argues that Hobbes did have faith in the law – and he provided an attractive, though widely misunderstood, account of the rule of law. For Hobbes, the achievement of governing through – and under – law was also a moral achievement, writes Dyzenhaus, because it was a political achievement.Footnote ¹⁶ His analysis shows that Hobbes advanced not so much a critique of the rule of law tout court. He actually critiqued the rule of law as contemporaries drawn to the natural law tradition, like Coke, were imagining it. Hobbes’s response to this common law conception of the rule of law was constructive – and he intended it as such. If a label were needed, says Dyzenhaus. Hobbes’s was the first political theory of the rule of law in the West.

Conservative critics of the rule of law in the nineteenth and twentieth centuries, of which Peter Caldwell singles out four, also framed the rule of law politically. They theorized it – and the related ideas of the Rechtsstaat and the État de droit – in existential terms. In Chapter 15, Caldwell parses the counterrevolutionary writings of Joseph de Maistre and Heinrich von Treitschke alongside those of Carl Schmitt and Ernst Forsthoff, together with a brief commentary on Edmund Burke, the least radical of the conservatives in this set of counter-Enlightenment thinkers. Perturbed by the French Revolution of 1789, Maistre, Caldwell shows, regarded the rule of law as an expression of the sovereign state as an existential order. The rule of law emanated from, and was responsive to, divine will. Reason had nothing to do with it. The “political constitutions” Maistre defended were grounded in a metaphysics of rule, a belief in the supremacy of the state as an organically grown, culturally rooted superiority. Treitschke also endorsed this argument from foundational values, describing the state as a transhistorical necessity. According to these theorists, the state made law, and the law – so long as liberals were involved in making it – was vacuous. Responding to the growing influence of rights-based liberalism in the theory of institutional design, they clamored for alternatives to the formalism and relativism they associated with procedural conceptions of the rule of law, the Rechtsstaat, and État de droit. And it was for this reason that Carl Schmitt, under the influence of the German Revolution of 1918/19, in Weimar Germany declared legality the enemy of legitimacy.Footnote ¹⁷

Like Ernst Forsthoff, with whom he served the Nazi dictatorship, Schmitt believed liberalism’s concern with universality and abstraction was inherently incompatible with the homogeneity and concreteness he, like Burke, regarded as the cement of society. Hierarchy, all three thinkers maintained, was conducive, equality corrosive, to any viable social order. Maistre and Treitschke, Schmitt, and Forsthoff, were theorists of “the total state,” the kind of state in which law rules absolutely – in the service of raison d’état. In conservative conceptions, the rule of law (in whatever shade) is derivative of the state, not constitutive of it. The implication is stark: the rule of law is an inferior institution. In conservative legal thought, the rule of law has always been, first and foremost, an enabling device, not a limiting one.

Chapter 16, written by Seyla Benhabib and Paul Linden-Retek, revisits Judith Shklar’s foundational work on legalism. In the 1960s, Shklar recognized that “a greater degree of social self-awareness” about rule of law practices would make legalism “a more effective social force, a more intelligible and defensible political ideology and a more useful concept in social theory.”Footnote ¹⁸ Benhabib and Linden-Retek explore the genesis of Shklar’s political thought and explain why she found wanting the kind of philosophical abstraction that had dominated the Hart-Fuller debate in that period. They relate Shklar’s account about the rule of law to her earlier argument about legalism and explain why she set out “to unsettle” the “underlying presumptions and aspirations” of the rule of law – why she felt compelled to chart the history of legal thought as “a story of forgetting.”Footnote ¹⁹

Interestingly, Benhabib and Linden-Retek link Shklar’s argument about the rule of law to Jürgen Habermas’s discourse theory of law, which, with its focus on intersubjectivity, they interpret as an undertaking “deeply responsive to her concerns.”Footnote ²⁰ The invocation of Habermas, the most influential theorist to have graduated from the so-called Frankfurt School, provides a segue to William Scheuerman, who, in Chapter 17, engages with rule of law critiques that emanated from the German left. He conjures two rival visions of the Rechtsstaat, that of Habermas, and a more radical, older analysis by Franz Neumann, whose Marxist leanings culminated in a powerful critique of the liberal rule of law. Both critiques, Habermas’s discourse theory and Neumann’s critical theory, will forever be associated with the Institut für Sozialforschung, which had its beginnings in Frankfurt, where it saw the light of day in 1923, before it relocated to New York during the Nazi dictatorship, and was eventually revived in Germany in 1951. Scheuerman explains why Habermas’s thinking about the rule of law (and about the Rechtsstaat) changed over time, and why we might want to think of it as “a creative response to many of Neumann’s concerns” about the relationship between capitalism and the rule of law.Footnote ²¹

This nexus – the frequently pathological relationship between the rule of law and its structural foundations in society – was also what troubled the “Critical Legal Studies” movement in the United States. With roots in American Legal Realism, a school of jurisprudence that flourished in the interwar period of the twentieth century, CLS theorists of the 1970s and 1980s, in the interest of creating “a more humane, egalitarian, and democratic society,” sought to foreground the political in the rule of law.Footnote ²² The target, as Mark Tushnet recounts in Chapter 18, was formalism. CLS scholars argued that substantive conceptions of the rule of law were transparently ideological, which is why it was primarily procedural approaches that needed rebutting. The reason they proffered: power hides in procedures. Locating the violence of law in these hiding places – these deep structures – became the CLS mission.Footnote ²³

Like the legal realists into whose shoes they stepped, CLS scholars mistrusted all efforts to ground the rule of law in a fixed moral foundation. For them, there was no rule of law in the singular. Almost everyone associated with the movement over the last forty years – CLS has withered domestically but successfully branched out into international law – has been dubious about moralities. Critical theorists do not think any morality can be trusted as a guide to the rule of law’s meaning. The rule of law may exist, but it is so deeply intertwined with ideology that its norms and institutions are invariably facadist. Whoever claims otherwise, so their argument goes, is a liberal – and living a noble lie.

One aspect to which CLS inquiries into the pathologies of the rule of law gave short shrift was that of gender. Several generations of feminist legal theorists, albeit to varying degrees and in different ways, have punctured the liberal rule of law bubble in which most twentieth-century thinking about the rule of law took place. Perturbed by the marginalization of gendered realities of precarity in political and legal thought, scholars of feminist jurisprudence have long looked askance at rule of law promises. Vanessa Munro, in Chapter 19, surveys the terrain of feminist jurisprudence – and reviews prescriptions for treating law’s pathological state. Her analysis focuses on three problem areas: (1) the “manipulability” of the functional notion, widely associated with rule of law thinking, of a public/private distinction; (2) the atomistic vision of rights-based liberalism and the often inadequate solutions to the problem of female subjectification that are the wont of liberal legalism; and (3) the fundamental limits of the rule of law as a tool of, and site for, progressive reform. Munro has serious reservations about the rule of law and its gendered practices. But unlike some radical feminist legal scholars, she does not give up entirely on the idea. She calls for a “permanent, unclosed perspective” on the rule of law, one that regards it realistically, with a keen eye for “the exclusions, excesses, and violence that law’s rule has imposed and/or justified,” especially against women.Footnote ²⁴

CLS was also insufficiently attentive to issues of race. And so, arguably, were feminist critiques of the rule of law. They, too, commonly glossed over “the problem of the color-line.”Footnote ²⁵ Critical Race Theory (CRT) arose in response to both of these lacunae in the critical study of law. A broad church, this intellectual movement has promoted the concept of intersectionality to come to terms with institutions of whiteness and their failings – including those of the rule of law. In Chapter 20, Khiara Bridges traces the evolution of race-based critiques of the rule of law from the 1970s to Black Lives Matter. She attends to the vices of the rule of law by problematizing the notion of “colorblindness,” which has long been a cornerstone of liberalism’s solution to the problem of race. CRT, by contrast, aims to make color appear, not disappear. Like most intellectual movements, its membership is far from homogeneous. Bridges traces major faultlines from Derrick Bell to Kimberlé Crenshaw, and from Francisco Valdes to Sumi Cho. Some who belong to the movement believe the pathologies of the rule of law to be just that – pathological states. For them, “the self-serving ‘rule of law’” is irredeemable, not least because its norm entrepreneurs – in domestic politics and international affairs alike – “cruelly declared formal (racial and social) equality while simultaneously limiting its reach.”Footnote ²⁶ These scholars regard the rule of law as having been associated far too often with the advancement of white supremacy. Other critical race theorists think more instrumentally about the rule of law. They recognize its value (if not its virtue) even when it is soiled by racial prejudice.

Trajectories

Whether one believes in the rule of law is, ultimately, a question of what one thinks the idea is capable of. One way to arrive at plausible answers is to think from trajectories. Part V of our collection develops this approach. It is both retrospective and prospective It looks forward as well as back. Our authors take stock of what has – and has not – been achieved in the name of the rule of law. Their principal focus is on the modern world, especially on pathways in the twentieth and twenty-first centuries. The nine chapters of this penultimate part consider the achievements and agonies of the rule of law in relation to undertakings with which it has been deeply intertwined, from constitutionalism to economic development, and from democracy to populism.

Shane Chalmers and Sundhya Pahuja, in Chapter 21, begin with an account of the rule of law as a continuous civilizing mission. Based on a genealogical reading of modern international history, they find that the fervent commitment to rule of law advocacy in the twenty-first century “was forged in the experience of colonialism.”Footnote ²⁷ They illustrate their argument with evidence from Liberia, arguing that “beneath the post colonial veneer of the ‘rule of law and development’ project lies a colonial core.”Footnote ²⁸ This continuity – the affective overlap between nineteenth-century and twenty-first centuries rule of law imaginaries – expresses a universalizing morality and provides an example of dependence development. Both of these trajectories Chalmers and Pahuja view with trepidation.

The promotion of democracy is as deeply intertwined with the phenomenon of the rule of law as is the goal of (economic) development. In Chapter 22, Martin Krygier reminds us why democracy, like the rule of law, has attained the status of a “solution-concept” (a term Jeremy Waldron favors), and why it is important not to misunderstand the relationship between them.Footnote ²⁹ After an analysis, with particular reference to the writings of Isaiah Berlin and Benjamin Constant, of the idea of liberty, Krygier tackles a thorny contradiction, one that has become prevalent again in the early twenty-first century: the pursuit of democracy without the rule of law. Against the background of recent developments in countries like Hungary and Poland, Krygier asks what, if anything, is to be done about this “tyranny of false polarities,” as Stephen Holmes once called it?Footnote ³⁰ The way Krygier sees it, democracy and the rule of law are “helpmates,” in the sense that both are required for freedom as non-domination.Footnote ³¹ In his chapter, he explains why.

Roberto Gargarella, next, addresses a conceptual pairing one commonly encounters in debates about democracy promotion: that of constitutionalism and the rule of law. He does so by examining three tensions he believes characterize that relationship. They concern, respectively, the question of individual autonomy, the idea of private property, and the institution of judicial review. Building on his work about Latin American constitutionalism, Gargaralla calls for a majoritarian reading of the rule of law, one that re-imagines some of the most common – and conservative – principles that over the last few hundred years have come to be associated with the rule of law.Footnote ³² He charts a future trajectory for the rule of law in which institutional safeguards – especially constitutional ones – reflect less the mores and preferences of elites (such as judges and legislators) and more “the people themselves.”Footnote ³³

The liberty of individuals is also of concern to those who think about punishment under the rule of law. Lindsay Farmer is among them. In Chapter 24, he traces the evolution of state-led retribution through the ages, beginning with the principle of moderation that Cesare Beccaria put forth in Dei delitti e delle pene (1764), the first modern argument for constraining the penal state. On Crimes and Punishments inspired other normative theories of punishment designed to curtail the arbitrariness of penal practices, including those of William Blackstone and Jeremy Bentham. Farmer explains how, at the end of the eighteenth century, these clarion calls for moderation ushered in one of the most fundamental principles of the rule of law: nulla poena sine lege. This maxim – which prohibits punishment without law – is a defining feature of the principle of legality. Farmer, with reference to recent case law, explores how this deceptively simple injunction has performed across various legal jurisdictions and traditions. He finds much to admire. But he also recognizes that rule of law restrictions in the democratic penal state have been more successful at defining unauthorized and disproportionate forms of punishment than in preventing injustice.

The perception of injustice lies at the heart of various populist movements that of late have engulfed not only the Global North (for example, Germany, Hungary, Poland, the United States) but also a large swath the Global South (for example, Argentina, Brazil, Turkey, South Africa, and Venezuela).Footnote ³⁴ In Chapter 25, Nicola Lacey asks under what conditions populism might be a threat to the rule of law. She explains why impatience with the rule of law is a defining feature of populism, and what it can do to a social fabric. Lacey distinguishes several mechanisms by which populism can subvert the rule of law. They range from populist constitutionalism to “convention trashing” to penal populism. Lacey maintains that populism will always be pushing in an “anti-rule of law direction.”Footnote ³⁵ But she is equally convinced that, absent a detailed mapping of the actual terrain where populists are contesting – and coopting – the rule of law, it will be impossible to say anything meaningful, let alone policy-relevant, about how this struggle for the soul of the state will play out in the end.

Is it possible to build the rule of law where it doesn’t yet exist? This is the question at the heart of Chapter 26. Here, Stephen Humphreys critically examines the so-called rule of law movement that sprang up in the twentieth century and has adherents the world over. Taking a leaf from Oakeshott, he chides the movement for gravely misunderstanding what the rule of law is or can be. Training his sights on the World Justice Project, one of the most visible rule of law entrepreneurs, Humphreys examines the claims associated with international efforts to build, promote, or otherwise support the rule of law. Arguing that few such efforts have led to sustainable development, advanced human rights, or reduced poverty, he maintains that all are examples “of the ineradicable tendency to qualify, confuse, or deny the rule of law.”Footnote ³⁶ The reductionist approach prevailing among NGOs that see themselves in the vanguard of the international rule of law movement stands in contrast to Oakeshott’s critique of entrepreneurial teleology. Humphreys draws out this contrast by weaving Oakeshott’s concept of societas through his analysis of the so-called international rule of law movement. The end result is a critical intervention that warns of reducing the rule of law – in both theory and practice – to a form of managerialism.Footnote ³⁷

The international dimensions of the rule of law are also the subject of Chapter 27. Tom Ginsburg and Mila Versteeg are more sympathetic to recent international developments than Humphreys. They, too, analyze the work of the World Justice Project – alongside that of the World Bank, the Heritage Foundation, and Freedom House Theirs is a purely methodological analysis, however. These are the questions Ginsburg and Versteeg pose: How can the rule of law measured? What do the indicators that result from these efforts actually capture? How do rule of law measures compare? And how do these measures map onto the rule of law moralities to which we cling? They find, despite notable differences in the underlying conceptions of the rule of law, a high degree of correlation across the various measures. Their chapter adds key data points to the debate about the promise – and pathologies – of measuring the rule of law universally.Footnote ³⁸ It also has implications for post-conflict rule of law.

In Chapter 28, Jane Stromseth takes stock of what on that score has been accomplished since the end of the Cold War, when international efforts to build the rule of law after military interventions went into overdrive. Her survey is more optimistic than many. Conceding that the track record of building the rule of law after conflict is “decidedly mixed,” she argues, with Kathryn Sikkink, that there is “evidence for hope.”Footnote ³⁹ From women’s empowerment through transitional justice to international criminal law, argues Stromseth, rule of law initiatives matter – and have made a positive impact. Against those who say international efforts of using might to make rights smack of “imperial utopianism” and spell “hubris,” Stromseth defends the ambitions of liberal internationalism.Footnote ⁴⁰ She confident that learning has taken place, and that the one-size-fits-all approach that once dominated international practices has given way to more appropriate ways of thinking about exporting the rule of law. Unlike Humphreys, Stromseth sees nothing inherently objectionable in the international movement that is trying to deliver post-conflict rule of law.

Anne Orford, in Chapter 29, sounds a more skeptical note. Describing the decade of the 1990s as “the high point for the project of liberal legalist international ordering,” she inquires the backlash against global legalism that has seized especially the Global South.Footnote ⁴¹ Especially during the last decade, shows Orford, the effort to build a global rule of law, for example by strengthening, international adjudication in the areas of trade and investment law, has stalled. She makes a similar case about the project of international criminal law. Orford views critically the liberal vision of a Kantian international system forged through – and resting on – a universal rule of law. It is imperative, she argues, to recognize that “plural visions of the rule of law” exist and that the idea of a global rule of law is not a universally shared but an essentially contested vision.Footnote ⁴² Building the rule of law, Orford concludes, is impossible without moralizing it. But history has taught us, she says, that moralizing the rule of law invariably means politicizing it.

Conclusion

Our way of seeing the rule of law is – or so we like to think – realistic. To construct realistic theories of the rule of law, it is essential we consider the phenomenon “in its social totality.”Footnote ⁴³ Thinking about the rule of law realistically requires an ability to reason both abstractly and concretely. What we advocate is not a “downshift to naïve empiricism,” but a willingness to see the world of law for what it is: large and murky and incredibly diverse.Footnote ⁴⁴ Because history shows that law rules in all kinds of ways, we welcome the intellectual effort, renewed by a small band of anthropologists, historians, and political scientists a little over a decade ago, of studying rules of law – and in the real world. Meierhenrich elaborates on the motif of multiples in the final part of our Companion, thereby drawing the volume together.

Distilling and interrogating the insights of our contributors and setting their work in a broader context of notable scholarship, he makes a case for rethinking the rule of law – for fundamentally reassessing what passes for conventional wisdom in theory and practice. Through a critique of what he calls “criterial” conceptions of the rule of law, his chapter lays the intellectual foundations for a realistic theory of the rule of law.Footnote ⁴⁵ Meierhenrich explains why he thinks the quest for what philosophers call the intelligibility of the rule of law is futile, and why a phenomenological approach – one centered on the study of practices, not premises – is more appropriate for thinking about the rule of law in the twenty-first century.