1 Introduction

When I was still young, and so a long time ago, a remarkable controversy erupted over a book by the eminent British historian, ex-communist, unorthodox Marxist, and peace activist, E.P. Thompson. The work, Whigs and Hunters,Footnote 1 was a close reconstruction, from masses of fragmentary evidence, of the origins, social meaning, and significance of the so-called Black Act passed by the United Kingdom Parliament in 1723. The Whigs of the title governed Britain for much of the eighteenth century, the hunters were mainly forest dwellers and farm labourers who caught game and caused other disturbances in parks and forests owned by the King, nobles and gentry. The ‘Black’ of the Act referred to the blackface camouflage used by these hunters/poachers (‘Blacks’) on the job, and the Act ‘at a blow’ created around fifty new capital offences. It provided, Thompson writes, ‘a versatile armoury of death apt to the repression of various forms of social disturbance.’Footnote 2

As one might expect from one of the most distinguished Marxist historians of his generation, Thompson revealed ways in which this and other laws were made and used by the government and those whose interests, particularly economic interests, they served. In a conflict between ‘users’, ‘petty predators’, often asserting customary rights and ‘exploiters’, ‘great predators’ who ignored those rights, the Act was crafted and employed, he argued, by the latter, ‘men who had developed habits of mental distance and moral levity towards human life, or more particularly towards the lives of the “loose and disorderly sort of people”.’Footnote 3

Had Thompson stopped there (which he almost did, given that the offending section starts at page 258 of 269 and according to his wife was added at her prompting as an ‘afterthought’Footnote 4), his readers could have emerged edified and instructed but not surprised by the direction the narrative took. Ruling classes exploited the ruled; who knew? However, to the dismay of erstwhile comrades and the (occasionally pleased) surprise of many others, unused to Marxist books ending in this way, Thompson concluded his exposé of ruling class manipulations with some immediately notorious reflections on the rule of law. At their heart was his insistence that ‘there is a very large difference, which twentieth-century experience ought to have made clear even to the most exalted thinker, between arbitrary extra-legal power and the rule of law.’Footnote 5 Notwithstanding all the distasteful legal and extra-legal machinations and manipulations he had chronicled,

the notion of the regulation and reconciliation of conflicts through the rule of law - and the elaboration of rules and procedures which, on occasion, made some approximate approach towards the ideal - seems to me a cultural achievement of universal significance.Footnote 6

A page later, he explains that:

I am insisting only upon the obvious point, which some modern Marxists have overlooked, that there is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath the law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge, a desperate error of intellectual abstraction.Footnote 7

He reinforces both these claims – ‘unqualified good’ and ‘cultural achievement of universal significance’– on the next page:

if the actuality of the law’s operation in class-divided societies has, again and again, fallen short of its own rhetoric of equity, yet the notion of the rule of law is itself an unqualified good.

This cultural achievement – the attainment towards a universal value …Footnote 8

Few who had learnt from him over the years were happy with these conclusions, least of all coming from him. Friedrich Hayek could be expected to say such things but who in the mid-1970s, and on the Left, cared about him? But comrade Thompson!

Thompson was excoriated by former colleagues for this paean to the rule of law, and, indeed, excommunicated by a former colleague of mine: ‘The nub seems to be that Thompson is not a Marxist historian.’Footnote 9 A harsher condemnation from within the tribe is hard to conceive. After all, as one commentator censoriously observed, Thompson’s ‘position threatens, of course, to slide into a wholesale acceptance of the Rule of Law.’Footnote 10 That was not praise. A more recent writer, more sympathetic to Thompson, aptly summed up the puzzled reaction of contemporaries: ‘He [Thompson] had shown throughout the book – convincingly and repeatedly – that the law was being used to the benefit of “the ruling class”, even as the composition of that class was changing … Why, then, did he turn around at the end of the book and call the rule of law “an unqualified human good?”’Footnote 11 The outrage about these pages was so great, that there was very little discussion of the other 257 (and ½). I’m not sure anyone ever read them. Certainly, only these were paraded for denunciation.

For these critics were confident that the rule of law was neither universal nor much of an achievement, still less an unqualified good. Not universal, since after the revolution there would be no place for it and, on some views (such as those of the Soviet Marxist, E.B. Pashukanis, doyen of Soviet law in the 1920s, liquidated as a ‘Trotskyite saboteur’ in 1937),Footnote 12 before capitalism there had been no place for it. Not such an achievement, since it was an instrument and ideological crutch of the bourgeois order. And certainly no unqualified good. Although with the waning popularity and then the collapse of the Soviet experiment, the rule of law might need to be tolerated, perhaps even preferred to some alternatives, it not was certainly not to be applauded.Footnote 13 On the contrary, as Hugh Collins explained rather late in the day, ‘[t]he principal aim of Marxist jurisprudence is to criticize the centre piece of liberal political philosophy, the ideal called the Rule of Law’.Footnote 14 And so Thompson was rebuffed, rebutted and rebuked, by people half his size.Footnote 15

In those days, I was about the only person I knew who found these pages attractive, but then I was not a Marxist.Footnote 16 Today, I no longer know many Marxists, and of course the rule of law has had multitudes of supporters in recent decades. However, the views of Thompson’s critics still find echoes, albeit from very different ideological starting points. In Orbán’s Hungary, Modi’s India, Chávez’ and Maduro’s Venezuela, Obrador’s Mexico, Netanyahu’s Israel, Trump’s United States, Putin’s Russia, until recently Kaczyński’s Poland, Bolsonaro’s Brazil, Duterte’s Philippines and many other places, there appears to be little enthusiasm – at least from those in power – for the ‘imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims.’ This time, however, these sentiments come less from the Left than from the Right.

I could draw upon examples from many parts of the world, but I will focus on Europe, where, in recent years, there have been continual struggles between EU institutions, on the one hand, which claim that the rule of law is a fundamental pan-European value which they have a right and responsibility to uphold, and leaders and their followers in several countries, on the other, who insist that it is not such a value, or that it is not their fundamental value, or that it must be subordinated to other, more important values, or that they honour it, but in their own, sovereign, nationally and cultural appropriate ways. Thus, we learn from a recent article that in Hungary,

the rule of law was described as a ‘buzzword’ by the country’s justice minister; a fiction by a Fidesz MP; and a ‘magic word’ by the Fidesz-KDNP Delegation to the European Parliament. Not to be undone, a judge from Hungary’s (captured) constitutional court, has presented the rule of law ‘as a normative yardstick’ which is little more than an empty nineteenth century ideal and a political joker [sic] for all purposes.Footnote 17

One need not look far within governing circles in Poland, and many other places, to find similar sentiments. A rationale was provided by Kornel Morawiecki, the late Polish nationalist activist and Speaker of the Polish Sejm (lower House of Parliament), father of the former Prime Minister of the Law and Justice (PiS) Party. In November 2015, defending the President’s unconstitutional first move (of many) in taking over the Constitutional Tribunal, by refusing to appoint three validly selected judges and appointing three government appointees, he explained:

The law is an important thing, but it is not holy … Above the law is the good of the Nation! If the law disturbs that good, then it is impermissible for us to regard it as something we cannot touch and change. I am saying – the law must serve us. Law which does not serve the nation is lawlessness.Footnote 18

This explication received an extended standing ovation from all the government parliamentarians in the Polish Sejm, the opposition having left in protest. A few months later, when both the (as yet un-‘reformed’) Constitutional Tribunal and the Supreme Court sought to resist a raft of unconstitutional measures taken against them by his government, the actual ruler of Poland, Jarosław Kaczyński, himself a doctor of laws, is reported to have said without any apparent trace of irony, ‘We are going to settle this matter … We will not permit anarchy in Poland, even if it is promoted by the courts.’Footnote 19

However, Kaczyński did not claim that real, authentic rule of law was a bad thing. Like so many modern populists once they gain power,Footnote 20 he claimed to be delivering the real deal, by undermining the self-interested and corporate ambitions of the legal elites. And like those other populists, though he cheated often, his government pretended to be reforming the existing legal order to restore the rule of law. Often indeed they employ a legalistic hyper-scrupulous legalism to undermine the rule of law itself, but in its name. As one Polish writer observed:

Everything [in Poland, with regard to the judiciary] seems to happen on the basis of some legal provision or other, and in case any are missing PiS will enact something overnight, in a trice. And yet we sense that in fact it is happening by force, contrary to the constitution and to the spirit of the laws, to the principles accepted by civilized people.Footnote 21

These regimes typically deny that they have any intention of ignoring law or undermining the rule of law properly understood. Rather, the line is that they respect it in their own echt (though German words are suspect) national sovereign ways, not on the basis of ‘alien’ pan-European dictates. Even if they concede that the rule of law is a European value that new member states of the EU signed up to respect, they insist that how they manifest that respect is their own business, to be handled in their own ways, according to their own traditions, values, institutional arrangements, practices and distinctive (many insist: ‘unique’) ‘constitutional identity.’Footnote 22 Criteria for adequate manifestation of such respect must come from inside not out. As Orbán recently insisted, while claiming to respect Hungarian rule of law, the EU “’rule of law’ procedure … is a serious nail in the coffin of the EU that should be pulled out as soon as possible!’.Footnote 23

Thompson was not a philosopher. His arguments do not march in cumulative succession, one building upon and strengthening the other. He moves back and forth between a number of themes, in a fashion more literary than logical, rhetorical than rigorous. And yet I have found myself drawn back to these twelve pages time and again. They figured in many courses I have taught over decades, and in several articles I have written.Footnote 24 I think they can help throw some light on current controversies. In any event, I propose to enlist them in that effort.

In particular, I will seek to reflect upon some implications of his claim that the notion of the rule of law is ‘a cultural achievement of universal significance.’ Although he might have thought it amounts to the same thing, I will not here explore his allied claim that it is an ‘unqualified human good.’ I know few unqualified goods, and perhaps there are none.Footnote 25 Either way, I doubt that the rule of law is among them. A cultural achievement of universal significance is quite enough for me.

I do not claim that Thompson would endorse everything I say, or even my interpretations of everything he says, and in fact I don’t agree with everything he says. However, I think he is a deeply perceptive and powerful source of inspiration. Certainly, he has inspired me. In what follows I will try to identify some elements of his brief discussion of the rule of law that deserve consideration, emulation and development, if also some amendment. What follows are my views, but they draw on what I take to be valuable in his.

2 The Rule of Law

However much they differ in their answers, when lawyers and indeed most people talk about the rule of law, they typically start with some definition, specification, model, or checklist of particular legal institutions, or legal principles, or formal (and sometimes substantive) elements of legal rules. If that is all, their accounts are dubbed ‘thin’, since they do not go further to stipulate some moral content such as human rights or justice as also required for the rule of law. ‘Thick’ accounts require moral content as well.

The dispute is pretty hackneyed and unrewarding. ‘Thin’ accounts are typically both not thin at all, since they assume –as constitutive of the rule of law anywhere– favoured features of local success stories, which might not travel well. But from another point of view, they are too thin, since for reasons explored in section 5 below, they are compatible with deliberate and systematic violations of the animating ‘spirit’ of the rule of law, without which there is little to be said for it. Thick accounts, on the other hand, tend to be quite extravagant in the moral achievements they require, and when so they threaten to blur any distinction between the rule of law and whatever else we might want, and so – as noted by Joseph Raz, one of the most prominent ‘thin’ theorists, with whom on this but almost only on this I agree—threaten to destroy the usefulness of the concept: ‘‘[i]f the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph.’Footnote 26 Thin or thick, however, the geographical location of the rule of law has been taken to be the institutions and practices of the official legal order.

Thompson by contrast starts elsewhere, neither with any checklist of institutions or rules, on the one hand, or some global moral ideal, on the other. Instead, he focuses on a specific accomplishment; that is, both specific and an accomplishment. Far from identifying the rule of law, as he found it in eighteenth century England, with any particular list, recipe, or template of legal and institutional hardware, he expressed disdain for many of the particular institutions he was discussing. The Black Act itself was ‘a bad law, drawn by bad legislators, and enlarged by the interpretations of bad judges.’Footnote 27 On his interpretation, that, and the many accompanying laws, were spawned by an ascendant and obnoxious ruling Whig oligarchy ‘which created new laws and bent old forms in order to legitimize its own property and status’,Footnote 28 ‘inventing callous and oppressive laws to serve its own interests.’Footnote 29 More generally:

The law when considered as institution (the courts, with their class theatre and class procedures) or as personnel (the judges, the lawyers, the Justices of the Peace) may very easily be assimilated to those of the ruling class.Footnote 30

Thompson did not identify the rule of law with any of these laws and institutions. Instead, his account is neither ‘thin’ since his account foregrounds an achievement, not specific means to it, nor is it particularly thick, since while he clearly was committed to large ideals, he only identifies the rule of law with something very specific. He hones in what he calls the ‘obvious point’ that ‘there is a difference between arbitrary power and the rule of law.’ On this account, then, the rule of law is an achievement, that exists insofar as ‘the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims’ occurs. It is such an achievement, not any particular array of legal bits and pieces that might (or might not) achieve it, which he characterised as the rule of law. His approach, in other words, is what I have elsewhere called teleological, starting with the point of the enterprise, rather than anatomical, stipulating institutional forms and features taken to amount to some legal configuration anointed with the title, rule of law.Footnote 31

His is a good way to start. The rule of law is not self-justifying, nor is it like a painting or piece of music, to be valued for the intrinsic aesthetic or technical fineness of its composition. Rather, it is a purported solution to a particular problem. And here’s the thing. Purported solutions need to be matched to real problems in real circumstances, not the other way around. Given the variety of histories, traditions, institutions, beliefs and practices we inherit, and circumstances we encounter, what in particular it takes to solve such problems will vary.

Questions precede answers to them. If you don’t know the problem, you can’t know the solution. Only after we come to a view on what the problem is, why we don’t want it and need to deal with it, and then what a solution might do to help solve it, does it make sense to ask where specifically to look, for what, and what we might find to do that, in the particular circumstances that do confront us, and others that might.

What, then, is the rule of law problem? Law is a means of exercising power; that is what it does. Thompson argued, as multitudes over millennia haveFootnote 32 and so do I, that the central problem which we want the rule of law to deal with is arbitrary exercise of significant power. Arbitrariness is not the only thing we don’t want yoked to power, but the combination is sinister, much that we don’t want is likely and much that we do unlikely, and countless thinkers have taken its reduction to be the particular task of the rule of law. Other problems, other solutions. But arbitrary power is obnoxious. Opportunities to exercise it should be minimised. Easy to say; hard to do. One resource, commended over millennia, has been the rule of law. Terms vary, but the idea is exceedingly old.Footnote 33

Identifying arbitrary power as the particular concern of the rule of law is common, though not uncontroversial. But Thompson’s starting-point – not the means but the goal—is so uncommon that I think the difference needs to be highlighted more than he did. Typically as we have seen, discussions of the rule of law start with what the thinker takes to be its institutional elements and moves on from there. Thompson, by contrast, starts the other way around – by specifying the character of a desirable achievement. But both conventional thought and Thompson often make no distinction, when they throw the term around, between the rule of law as means and as end. I think it is important to do so. You might have the checklist of legal stuff, but not get the end you wanted, as many modern ‘autocratic legalists’ show, and it is at least conceivable, and in many circumstances it is the fact, that you can get to the end by other means.

And so I have come to believe it makes sense to suggest a terminological amendment that I think is in the spirit of Thompson’s discussion, but which he did not make. And so, the title of this article speaks of the end in view without mentioning law, which might well deliver it but might not. Since it is so common to identify the rule of law with some institutional arrangements or other which are supposed to achieve it, I recommend that we speak of that achievement as the goal or ideal of the rule of law, not the rule of law itself. The name I choose for that goal or ideal is ‘well-tempered power.’ That helps us distinguish means and ends, and that is enough reason to make the distinction at this point in my discussion. There is also a substantive reason for this particular choice of term, that I will come to in s. 4 below. That is the aim, the purpose, and the reason to wish for the rule of law. That is what we’re after. The rule of law is a means we hope will help us achieve it, but if we thought we could get there by praying it would still be worth seeking, and we should pray more and worry about law less. And that is why, after a very long time of being called a ‘rule of law’ guy, I’ve decided to come out. I am really a ‘well-tempered power guy.’ And I would have preferred if Thompson had been explicit that he was too. In any event, however, we agree about what is at stake.

Unfortunately, well-tempered power is not a natural state of affairs. Nor is it simple to contrive, particularly when, as so often, unruly power comes to be concentrated in the big grasping hands of small numbers. Often despotism is simpler,Footnote 34 unruliness easier still,Footnote 35 the latter often leads to the former,Footnote 36 and the two frequently co-exist.Footnote 37

Arranging power, so that it is not available for arbitrary exercise, is not one task, nor is it simple. It is not one, since the particular sources of arbitrary power, the circumstances in which it is amassed and wielded, the technologies – including institutional technologies – apt for any particular incarnation will vary. It is not simple, because reducing the possibilities of arbitrariness in the exercise of power takes a lot of power, and not everyone has it or can arrange and deploy it to good effect. It requires resources, institutions, social and political supporting structures, norms and habits, effective technologies, incentives for good acts and protections against bad ones; and typically time and good fortune. Historically these have come together rarely.Footnote 38 So, world-and-history-wide, a sturdy regime of power not given to arbitrary eruptions and interruptions has always been exceptional. Where realised in reasonable measure, something significant has been achieved, arguably against the grain of human affairs.

3 A Cultural Achievement

What kind of achievement is that? Typically and unsurprisingly, partisans of the rule of law take it to be a legal achievement, to be accomplished by well-ordered legal arrangements. After all, it’s the rule of law we are talking about. But as we have seen, though he too thinks law is crucial for the achievement, Thompson several times calls it something else, a cultural achievement. What could that mean? He gives some clues.

We have already seen that he did not start from particular legal institutions but from a valued state of affairs, and though he stressed that it was a legal accomplishment he did not attribute it to any particular legal institutional arrangements. More was involved. Thus, when he acknowledged that the specific institutions of eighteenth-century English law could easily and rightly be seen as instruments of a ruling class, he went on: ‘But all that is entailed in “the law” is not subsumed in these institutions.’Footnote 39 So what else was there?

He sets some store by the ‘forms of law’. They are important in themselves, he thinks, for ‘It is inherent in the especial character of law, as a body of rules and procedures, that it shall apply logical criteria with reference to standards of universality and equity.’Footnote 40 Already there is some cultural element here, since these are intellectual criteria, presumably passed down in the writings and thinkings of lawyers, and they don’t apply themselves. They must be learnt, thought about and applied by members acculturated in particular legal traditions. But who would take them seriously and why, particularly if they might thwart powerful interests?

Well, those involved in the administration of the law, what has been called the ‘legal complex’,Footnote 41 might be acculturated to do so. And in strong rule of law cultures, that is what happens. According to Thompson, ‘[i]n the case of an ancient historical formation like the law, a discipline which requires years of exacting study to master, there will always be some men who actively believe in their own procedures and in the logic of justice. The law may be rhetoric, but it need not be empty rhetoric. Blackstone’s Commentaries represent an intellectual exercise far more rigorous than could have come from an apologist’s pen.’Footnote 42 As Karpik, Halliday and their collaborators, and Polish judges and lawyers protesting against the subversion of such criteria by PiS in recent years, have shown, there is considerable evidence for this claim, particularly in relation to civil and political rights (and protection of legal forms).Footnote 43 Still, to adapt Stalin, how many divisions do lawyers have?Footnote 44 Not enough, on their own.

But they are not always on their own. In England, Thompson insists, law was not merely a bunch of thunderbolts thrown by Whig oligarchs from on high, but was deeply embedded in everyday ways of life themselves, ‘often a definition of actual agrarian practice, as it had been pursued “time out of mind” … deeply imbricated within the very basis of productive relations which would have been inoperable without this law.’Footnote 45 Law was not merely a matter of commands which one needed to know how to obey or avoid, but rather sources of felt entitlement and, when thwarted, grievance. For the law did not inhabit a vacuum. At least in eighteenth century England, ‘this law, as definition or as rules (imperfectly enforceable through institutional legal forms), was endorsed by norms, tenaciously transmitted throughout the community.’Footnote 46

This is a key observation. Even if Hobbes was right that ‘covenants, without the sword, are but words and of no strength to secure a man at all,’Footnote 47 swords are not enough to temper power. Particularly since those with most power typically have the sharpest swords. But in some cultures, cultural frames and content – traditions, norms, and other sources of social imaginaries – exercise (often invisible) framing, channelling, limiting, constituting influence over ways of thinking, acting, feeling, imagining. These are the sorts of cultural achievements that Thompson described. On the one hand, much of the past remains present even though unbidden and unnoticed (especially where unbidden and unnoticed) but just there, as the result of age-old accretion, becoming ‘second nature.’ On the other, the present-past continually changes, partly because much that was past is forgotten or rejected, but also often as a result of deliberate additions, the acceptability of which in turn is to varying extents aided and limited by what stays around of what has gone before. Neither past nor present is fully sovereign.Footnote 48

These various cultural strands – lawyers’ consciousness, popular normative assumptions and understood practices – vary in strength and pervasiveness between and within societies and over time. In some societies, few have what H.L.A. Hart called an ‘internal’ attitude to law, that treats it as ‘as a general standard to be followed by the group as a whole.’Footnote 49 It is widely regarded as something to be exploited or avoided, used or abused. ‘Informal practices’ not only exist, as they do everywhere, but often contradict or ignore or supplement or replace law.Footnote 50 But where such strands are intertwined and in sync with each other, culture matters in ways that Thompson was right to stress.

This remains true, even where law works, as it so often does, to serve those with more power than those with less. Marxists were familiar with the idea that law supports ruling classes not simply as their sharp or blunt sword but—full of handsome and self-justifying words as it typically is—as legitimating ideology. Thompson accepts, indeed emphasises these ideological components, but gives them a twist. For he insists that as ideology, law is two-edged. To be effective in legitimating power an ideology must be plausible, both to those subject to it and even to those who benefit from it. As for the former,

it is not often the case that a ruling ideology can be dismissed as a mere hypocrisy; even rulers find a need to legitimize their power, to moralize their functions, to feel themselves to be useful and just. In the case of an ancient historical formation like the law, a discipline which requires years of exacting study to master, there will always be some men who actively believe in their own procedures and in the logic of justice. The law may be rhetoric, but it need not be empty rhetoric.Footnote 51

And though those in power used the law for their purposes, this is not the same thing as to say that the rulers had need of law, in order to oppress the ruled, while those who were ruled had need of none. What was often at issue was not property, supported by law, against no-property; it was alternative definitions of property-rights … For as long as it remained possible, the ruled - if they could find a purse and a lawyer - would actually fight for their rights by means of law; occasionally the copyholders, resting upon the precedents of sixteenth-century law, could actually win a case. When it ceased to be possible to continue the fight at law, men still felt a sense of legal wrong: the propertied had obtained their power by illegitimate means.Footnote 52

And so, even though it was not false to identify law as ‘ideology’ and ‘rhetoric’, those very characteristics made it possible for law occasionally to trouble the powerful and strengthen the powerless.

At least in eighteenth century England, Thompson insists, though the law was full of ruling class rhetoric, ‘so far from the ruled shrugging off this rhetoric as a hypocrisy, some part of it at least was taken over as part of the rhetoric of the plebeian crowd, of the “free-born Englishman” with his inviolable privacy, his habeas corpus, his equality before the law.’Footnote 53

Thompson was aware that English public culture in the eighteenth century was particularly law-suffused, in comparison with earlier ages (where, for example, religion was more important) and with other societies where laws might have little cultural resonance.Footnote 54 Perhaps because he was primarily concerned with England, he blurred them occasionally, in some passages that sound as though these cultural supports for the rule of law inhere in law simply because it is law, wherever it is found. But it is unlikely he really believes that, for, he also concedes that he does ‘not know what transcultural validity these reflections may have.’Footnote 55 In any event, whatever he believed, law is not always as important as he found it to be in England, and even where important it is not necessarily important in the same ways.

This is an important concession, even though he does not put enough weight on it, and some of his reflections seem more general than they should. But his emphasis on cultural achievement offers a tool to capture differences that he does too little to explore. There are, we know, times and places where the idea that power should be tempered by law is weak or non-existent, and/or other ideologies than law prevail, and/or legal ideologies are purely instrumental and betray no sense that law might be, should be, binding on those who make it and benefit from it. And, as we have seen, cultural assumptions and practices are of many sorts. All these things vary, and in many circumstances well-tempered power is hard to achieve, even to conceive. Certainly, given what is pitted against the achievement, one cannot rely on it happening naturally, nor can one rely on law alone. Nor indeed can one always rely on culture to support the law, still less the rule of law. There is, then, no necessity that tempered power will be supported by culture in such ways. In principle, it is as possible that the law will be undercut by inconsistent norms, or overwhelmed by more powerful ones. But it is also possible that law and cultural norms reinforce each other, and where that is the case, something significant is happening.

And here I think we need to attend to one word in Thompson’s discussions, which I believe has gone unnoticed. At least, after over 40 years of returning to these 12 pages, and teaching and writing about them, I have only noticed it now. Typically, the conclusion to Whigs and Hunters is taken to be a full-throated praise of the achievement, that he takes the rule of law itself to be, and of course it is that. However, when he writes of the rule of law as a cultural achievement, he several times focuses not on the actual achievement of the rule of law itself, but on what he calls the notion of it. Thus, he remarks, ‘Turn where you will, the rhetoric of eighteenth-century England is saturated with the notion of law.’Footnote 56 Again, it is ‘the notion of the regulation and reconciliation of conflicts through the rule of law—and the elaboration of rules and procedures which, on occasion, made some approximate approach towards the ideal – [that] seems to me a cultural achievement of universal significance,’ When we see Whigs manipulating the law, ‘we feel contempt for men whose practice belied the resounding rhetoric of the age. But we feel contempt not because we are contemptuous of the notion of a just and equitable law but because this notion has been betrayed by its own professors.’Footnote 57And finally, while Thompson is usually remembered for saying that ‘the rule of law’ is a universal good, he also says that it is ‘the notion of the rule of law [that] is itself an unqualified good.’

Arguably, the notion of the rule of law is as important as the thing itself, or at least an indispensable element of it. As Thompson noted, where the notion is part of strong, embedded cultural inheritance, even where power-wielders ignore, or reject, or flout, or mock it directly or through hypocrisy, there are concepts, values, ideals available and so too a language, in which they might be condemned. This critical potential of the concept and the tradition is key, but often forgotten, both by those who celebrate the rule of law as a panacea in the possession of some rather than others, and also often by those critical of boosterisms of this sort. Tempered power is no panacea, though it might well be a source of health. It is a practical ideal of great worth. As such, it should be invoked as much when the values it endorses are flouted as much as or more than when they are served.

But the notion is neither natural nor universal. Where it is available to support (and constrain) imaginations of how power should be exercised, that is usually a complex combination of, in this respect fortunate, inheritance, institutionalisation, intention, luck, culture and tradition; often a by-product of other things done for other reasons. Where such things come together to temper power, it is only partly and typically derivatively traceable to the activities of contemporary actors, or to particular rules and institutions, though these matter too. It is buttressed, made to endure, made part of the legal culture, by less obvious but no less important, indeed indispensable, political, social and legal traditions which underpin, institutionalise, and transmit the values and practices (many unwritten) that accompany them.

There is nothing Whiggish in this claim, no historical script, no universal happy development. Just some dispositions, of varying strength and prominence, embedded in and transmitted by traditions of some significance. It would be nice if they did well, but nothing assures it and they have often been radically, even tragically, maligned, rejected, ignored, overwhelmed. Residents of modern Europe, indeed anyone who was alive in the twentieth century, and alas also in this century, should not need any reminders.

For, in many societies and cultures, those whose power matters most, and to whom power matters most, simply cannot imagine that theirs should or could be tempered.Footnote 58 It has, for example, been argued by scholars that for most of their history neither ChinaFootnote 59 nor RussiaFootnote 60 knew the notion that law might temper rulers’ power, still less that it should.Footnote 61 When any conception of ‘law-boundedness’ was known it was rejected, at least by those with power. In other cultures, the role of law is understood to be to help rulers impose ‘order’ or ‘tranquillity.’Footnote 62 None of this is past history.

Consider this telling epitome of the long-lived Russian legal tradition: ‘Count Benckendorff, the chief of police under Nicholas I, once said: “Laws are written for subordinates, not for the authorities.” As a logical consequence, laws did not need to be made public in order to go into effect. Those who broke the law would find out anyway’.Footnote 63 Clearly when Benckendorff spoke of laws being written for subordinates, he did not mean ‘for their sakes’, or ‘for their protection, guidance and use.’ The Russian tradition is particularly striking in its starkly top-down, instrumental view of law, but it is far from unique. More rare, indeed, are political and legal cultures where laws, or a substantial proportion of them, are supposed to be written for the protection, guidance and use of citizens, where this is widely expected to be the case and thought properly to be so, to varying extents by both rulers and ruled. To the extent that such ‘notions’ are alive in a society, the rule of law gains often invisible but significant cultural support.

The early history of my own country, Australia—from penal colony to a free society (for white settlers) in the space of some 50 years—cannot be understood without recognising that it was not just convicts who were transported to the other end of the world, but particular ideas and ideals about the legal rights of ‘native born Englishmen’ that they (and their rulers) carried ‘as part of their cultural baggage.’Footnote 64 Central to that baggage was belief that law should be respected by their rulers and that it could and should form the basis of constraint on and challenge to these rulers. ‘A cluster of ideas known as the rule of law provided the major institutions, arguments, vocabulary and symbols with which the convicts forged the transformation.’Footnote 65 Convicts fought battles for status and recognition in terms of their entitlements under the law, believed that the rule of law should apply to them, insisted that the authorities should respect it, demanded rights that they believed flowed from it. A great deal flowed from these beliefs. Convicts were rather liberally granted legal rights; and they made use of them, often to good effect. When they won, it was because their opponents' hands were tied. They too, after all, had the same baggage in their heads. And even where they didn’t, the courts often did, insisting on their independence under British law, and the subordination of the apparently (and in many ways really) autocratic governors to that same law.

It didn’t have to be like this. What if the convicts and their Governors had come from Russia? There would have been fewer tricky arguments making their way through the courts, about the legal rights of free-born Russians. Indeed, the penal colony would likely not have had—from the very beginning – courts in which convicts could sue their masters, and oftentimes win, and this for two reasons: courts would not have been provided, and had they been few people would have thought to use them. There would have been no fuss about trial by jury, still less about who had a right to serve on juries. Nor would the Governors have constantly had to battle against prickly judges, conscious of their independence and attached to their traditions, or free settlers against far-too-smart ex-convict (‘emancipist’) lawyers, who were often able to best them in court.

Not only didn’t it have to be like this, but in Australia, for Aborigines, it wasn’t like this, from the very beginning. To say the least, not everyone benefited equally from the law the British exported to, and sought to impose upon, their new colony. The civilisational calamity and tragedy of Australia’s Aborigines, about which I have written elsewhere,Footnote 66 had many sources and was indeed overdetermined, but it was without doubt the harshest example of the ‘human blindness’ that was also part of the cultural baggage that English colonists brought with them. Far from undermining Thompson’s argument, however, this poignantly confirms its two-pronged point: the rule of law is a cultural achievement, not a matter simply of legal rules and institutions (which as a matter of law were for some time the same for Aborigines and whites). In England itself, as everywhere, the haves came out ahead,Footnote 67 and the notion of the rule of law was unevenly recognised. In relation to Australian Aborigines, however, the cultural ground for that notion was dramatically, spectacularly, infertile, both among Aborigines, who knew nothing of the settlers’ law and for a long time had no way of making use of it, and settlers who typically cultivated it only for their own benefit.

The differences in availability of the rule of law to convicts and Aborigines derived both from a complete absence of cultural common ground between indigenous and settler Australians, as well as from a deep split in the moral imagination of the dominant early Australian law-makers, enforcers, and, more generally, of settlers. In early contact with Aboriginal society the cultural baggage that convicts shared with their rulers and benefited from, was simply not extended or made available to Aborigines, even where the will to make it so was. Commonly it was not, nor for a very long time did Aborigines have the knowledge, ability, or resources to seek advantage from it. That did not in the first instance depend upon the forms or institutions of the imported law but underlay it and conditioned the ways it worked in the world. This then made its way—often, one imagines, unconsciously, as part of obvious taken-for-granted views of the world—to be reflected in the practices, character, forms and obligations embodied in the institutions of law, and in the entitlements, or lack of them, of its subjects. Better, its subjects and objects. Among the former and between them, the ‘notion’ of the rule of law was remarkably strong. Between the former and the latter, it often had no standing at all. The notion of the rule of law occasionally (and over time increasingly) had some purchase, but commonly not. It took a long time for that to change, in many respects it has yet to be fully achieved, although the constituency for ‘the notion’ – both among Aborigines and the (now multicultural) majority—has expanded considerably.

Of course, notions are not enough. Even where they exist, they are typically only partially, fitfully, unevenly realised. Nevertheless, the rule of law will never be established or sustained by law alone. Though law can offer distinctive resources of focus, experience, authority, cultural competence and enforcement,Footnote 68 its effects are always mediated and often thwarted by complex interactions with cultural – though of course not just cultural but also political, social, and economic—forces. The cultural aspects are often the hardest to spot and to talk intelligently about. And yet they are key.

4 Universal Significance

What could it mean to say that the rule of law itself, or the notion of the rule of law, or in my terms well-tempered power, has universal significance? It follows from what I have already said that we should be chary of assuming that any particular arrangement of legal institutions has this significance, given the variety of social, political, legal and cultural configurations and contexts in which one might seek the ‘notion’, and the many ways in which legal transplants fail to deliver what is sought from them. That should have been understood as a matter of social theoretical principle, and surely we might have learnt from the prevalence in the practice in international ‘rule of law promotion’ of the now notorious problems of ‘isomorphic mimicry … adopting the camouflage of organizational forms that are successful elsewhere to hide their actual dysfunction’,Footnote 69 where institutions and rules are shipped or copied but the outcomes expected do not eventuate. Does one then have the rule of law because the institutions appear to be in place, or lack it because nothing works as it should? I believe Thompson would instantly have opted for the latter alternative, and I with him.

Instead, he finds universal significance in ‘the obvious point … that there is a difference between arbitrary power and the rule of law.’ I agree. However, in endorsing his point, I would slightly re-frame it in one respect. Like most who have written about the rule of law, Thompson describes its aim primarily in terms of what it rules out rather than what it rules in and facilitates, what it constrains rather than what it makes room for. Above all, he praises it for ‘the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims.’

And yet he has another way of writing, as when he stresses its role as ‘definition of actual agrarian practice, as it has been pursued “time out of mind.”’Footnote 70 Such practices embody felt rights and entitlements as well as limitations and prohibitions which, as we have seen, were insisted upon not merely by exploiters and rulers but by those they exploited and ruled. Indeed, the same laws could serve to do both, as he argues in his discussion of ‘alternative definitions of property rights’, quoted above.Footnote 71 It didn’t just limit power, but distributed it and tempered the manners in which it might be exercised.

This suggests what is often missed in conventional accounts of the rule of law understood merely to ‘limit’ or ‘inhibit’ governing power. For limitation is not all we want, and at times, it is not what we want. As well as wishing to block bad ways of exercising power, we want to augment the ability of power-holders to exercise power in non-arbitrary ways. We need to generate means of channelling and strengthening certain ways of exercising power, indeed creating, constituting forms of power that otherwise would not exist, to achieve positive effects otherwise unavailable,Footnote 72 as much as we do to limit the ways it might be exercised. We want to establish non-arbitrary ways to effectively exercise power, as much as to limit arbitrary ones.

Power is unavoidable in human society, and indispensable for many things we value. Getting rid of it is not an option even if we should want that, which we should not. Like most skills – speaking, writing, swimming …- power needs to be disciplined, not limited, still less eliminated. This does not weaken power, but rather strengthens its ability to further good purposes. The notion of the rule of law should therefore not be understood purely as a negative instrumentFootnote 73 for limitingFootnote 74 power, for it should be as much a positive means of channelling and strengthening certain ways of exercising power, to achieve positive effects otherwise unavailable. At the same time, and often with the same means, possibilities of malignant uses of power must indeed be weakened, while benign ones are enabled and facilitated.Footnote 75 The rule of law on this understanding is not power’s enemy, but its potentially ennobling friend.

So, rather than focus on limitation of power, this is the substantive reason, foreshadowed in s. 2 above, that I have chosen to recall the old and evocative term strong in rule of law discussions, in many languages, over millennia: power should be tempered. Indeed, that should be the goal of the rule of law.

Traditionally, as first a personal ‘cardinal virtue’, classical uses of the term (and its direct Greek predecessor, sôphrosynê) emphasised self-restraint, flexibility, blending, balancing, and thoughtfulness in the exercise of power.Footnote 76 Similar virtues were later attributed, after the Greek was translated by Cicero as temperantia, to institutional tempering of power A third, metallurgical, use of the term refers to careful blending of materials, to render the resulting product tougher, stronger, less fragile, and better fit for important purposes than its individual components.Footnote 77 This sort of tempering, say of steel or glass, renders power stronger than untempered power for many (good) purposes, while also less apt for bad ones.Footnote 78 The fact that in some languages,Footnote 79 finally, to temper is to sharpen also serves my purposes. Only metaphor, but it helps one think. Thus armed, I join, and only slightly adapt, Thompson to say that well-tempered power is an achievement of universal significance. I doubt that he would object.

This is not an anthropological claim, that either the notion or the achievement of the rule of law is universal, in the sense either that everyone everywhere supports it or has it. We know that is not true. Nor even that it is readily universalisable, made available to everyone everywhere. It is an achievement, after all.

Instead, it is a normative claim. Arbitrary power is never—or if not never then so rarely as to be in need of explanation and strenuous justification – a good thing. More precisely, there is a not easily rebutted presumption against it. Anyone seeking to justify it carries a huge burden, extremely hard to discharge. Perhaps there are extreme circumstances where untempered power is necessary, but even then – and one should examine the claims closely and skeptically – these are extremes. They should not, pace Carl Schmitt, serve as models for the norm.

Moreover, even where one might contemplate the use of arbitrary power, one should recognise that harm has been done. As Simone Weil wrote, about sacrificing one value where it’s incompatible with another, ‘even in such a case a crime is committed if the obligation so sacrificed is not merely sacrificed in fact but its existence is denied in the bargain.’Footnote 80By contrast, the notion that power should be reliably tempered, still more actual approaches to realising that notion, are achievements universally worth striving for. Why?

Elsewhere, I have sought to distil from rule of law writings four sources or kinds of arbitrary power—for short: uncontrolled,Footnote 81 unpredictable,Footnote 82 unrespectful,Footnote 83 ungroundedFootnote 84 power. Each is obnoxious, together they are toxic. For they threaten human dignity,Footnote 85 equality,Footnote 86 liberty,Footnote 87 lead to dominationFootnote 88 and fear,Footnote 89 imperil trust and social co-ordination,Footnote 90 and generate solipsistic short-sightedness and stupidity among the powerful, who foolishly fancy they benefit from them.Footnote 91 More can be said about each of these sources and each of these vices. Since they are likely to flow from the availability of arbitrary power in most circumstances of which I can conceive I am happy to stand on the ‘very narrow ledge’Footnote 92 that Thompson imagined he had placed himself, and to say that the notion, and then the reality, of organising ways to avoid them by tempering power, are ‘cultural achievement[s] of universal significance.’

5 Return to Europe

Let us return to where we began, current controversies over the rule of law and European values. What are the implications of the foregoing discussion of a few concluding pages of an old work by a late (though great) historian, for contemporary problems in countries he says not a word about? I detect two.

The first is that the claim that the rule of law (as Thompson interprets it and as I rename it), is a European value is correct but too modest. The ideal of the rule of law is indeed European, but not just that. It may not be ‘an unqualified human good’ – apart from my doubt that there are any such things,Footnote 93 tempering power is never the only thing we should want, might well be inconsistent with some valuable things we want, and is rarely the most important thing we want. Choices and compromises might need to be made. Still, it is truly ‘a cultural achievement of universal significance.’ Each word in that phrase, I have sought to demonstrate, deserves emphasis and respect.

However, and this is the second implication, it makes a huge difference what one takes as central to the rule of law. What is universal is the notion and realisation of a state of affairs in which power is reliably tempered, so as not to be available for arbitrary abuse. It is a mistake to identify it, as is typical, with any allegedly canonical arrangement of forms and institutions and rules that are enlisted or assumed to embody it.

This has some important implications. Where one is fortunate, the notion is a cultural achievement, embodied variously in practices, beliefs, norms and imaginations, some very old, and substantially realised. Congenial inheritances are a huge bonus, hard to make up. However, their lack or weakness does not mean that the rule of law is out of one’s grasp, though it is more difficult to attain. Cultures, and we who inhabit them—and are inhabited by them—change, mix, learn, and develop. And people are not just creatures of culture but creators as well. Secular societies were once religious. Since ancient Greece, there were no democracies until the end of the eighteenth century. That changed. Germans were not Nazis once and most are not Nazis now. Indeed, the notion of the rule of law is deeply embedded in contemporary German culture, and the practices are strong also. Gays and Blacks were not always ‘proud.’ A lot, if not enough, has changed for them, and a lot has probably changed in their own notions of what they are entitled to. That notions of Gay and Black Pride are prominent today is a recent cultural achievement, arguably of universal significance.

Sometimes we can attribute changes to tectonic cultural shifts of which we are unaware. Other times they are the results of deliberate action, mobilisation, demand and transformation. We might judge some such changes positively, others negatively. We cannot deny that they occur. However, whatever their sources, the norms that make them valuable need to be nurtured, inculcated, defended, promoted, supported by other cultural, political, and social forces, and they need to be institutionalised in the sense proposed by the great American sociologist, Philip Selznick: ‘infuse[d] with value beyond the technical requirements of the task at hand.’Footnote 94 All the more where they cut against strongly institutionalised contrary notions, formal rules and organisations are unlikely easily to make inroads on their own.

Much institutionalisation occurs as a result of cumulative, often unintended processes, which can build up over long periods. Apart from inheritance, however, as Selznick showed in his many writings on institutional leadership, cultural notions, attachments and loyalties can be encouraged, inculcated, projects to be realised. That cannot be a merely technical affair of laying down rules. It will have to take into account already existing and institutionalised bodies and forces,Footnote 95 and it requires far more and far else than installation or routine management. When it occurs, it typically starts at the top. Leaders are key. They need to understand the values and character of institutions already in place and be aware of the need to imbue novel ventures with values that one hopes might catch on and be grafted onto what exists, without triggering auto-immune responses. Infusion with value can be a conscious, deliberate task of moulding, fashioning; not just a spontaneous process of adaptation fitting in. Indeed, that is one of the most crucial tasks for a leader who seeks to introduce substantial institutional change. These are complex and difficult tasks, to be sure, but they can be achieved, as successful revolutionaries, churches, armies, and business organizations, have shown.

Leaders intent on innovation, then, need to deal with existing loyalties, attachments and networks, to bring them in line with the ends they seek. They might try to change them and this can be done, but it is an art and does not follow automatically from a change of leadership, installation of new rules or organisations, or exhortation, or ‘international best practice’. If it is not done skilfully and well, old

attachments and patterns will not give way quickly and new ones, or at least the ones leaders intend, will not grow quickly; perhaps not at all. In any event, the new will rarely fail to run up against the old, and it may not be as new as reforming enthusiasts imagine. Indeed, the old might turn, and be mobilised to turn, on the new. A system of rules can be invented overnight, but with institutions history matters. They take time and they must take account of time. As another scholar has observed from another context (Myanmar): ‘tectonic shifts in political power can be dramatic and exciting. Shifts in institutional behaviour are protracted and wearisome’.Footnote 96

For the two aspects of institutionalisation – process and project–are linked. Leaders must always be aware of the socially embedded, value-infused character of the materials with which they deal. A leader of an institution who treats it as a mere technical instrument will flounder, oblivious of sources of institutional recalcitrance, unable to summon potential sources of institutional energies.

Over time, institutional inheritances and deliberate institutionalising projects can be intertwined and modified, and in the case of law, it is important that they are, if ‘law in action’ is going to have any resemblance to ‘law in the books.’ As Selznick observed:

The starting mechanism [of institutionalisation] is often a formal act, such as the adoption of a rule or statute. To be effective, however, the enactment must build upon preexisting resources of regularity and legitimacy and must lead to a new history of consistent conduct and supportive belief. Institutions are established, not by decree alone, but as a result of being bound into the fabric of social life. Even so weighty an enactment as the United States Constitution cannot be understood apart from the legal and political history that preceded it, the interpretive gloss given it by the courts, and the role it has played in American history and consciousness. The formal acts of adoption and ratification were only part of a more complex, more open-ended process of institution-building.Footnote 97

That sort of institutionalisation, however, is not easy or inevitable. Such higher-order values might be unknown in a particular order. Alternatively, they might be well known but not institutionalised, because they conflict with, maybe are alien to, the animating ideals or practices of existing institutions which are institutionalised or because no one gives them any heed, or because they are difficult in particular circumstances to institutionalise, even where there is a will to do so, or because there are significant actors, often themselves leaders, who have no such will but on the contrary are hostile to them. So, in our case, while legal rules and arrangements are commonly central to the institutional architecture of states, the extent to which the notion of the rule of law is institutionalised in and around them will vary greatly across space and time.

Not much of this was appreciated in the 1990s, however, by those who sought to ‘build’ the rule of law in post-communist Europe. Even that commonplace verb is out of place. Institutions are not ‘built’.Instead, instititionalising the values they depend upon depends upon cultural nurture, adaptation, development and patient grafting, rather than upon imitation and insertion. As I have argued elsewhere:

We have much more to say about “international best practice” in institutional design than we do about how to generate local institutional attachment, and yet without the latter, the former is unlikely to matter much. …

Post-communist, democratic, legal, and constitutional transformations were much more given to emulation, adaptation and installation, than to institutionalisation.Footnote 98

Again, there was something strangely naïve in the pretense of the EU that its acceptance of 10 new members in 2004 and several others later, was based on their showing they had ‘achieved stability of institutions guaranteeing democracy, the rule of law, human rights, respect for and protection of minorities,’ by aligning their legal rules and institutions with 80,000 pages of the EU acquis. A second’s thought about the complexity of such a cultural achievement shows this to be implausible. But then those both at the centre and the peripheries were desperate to expand the club. Today it seems that, in a parody of Groucho Marx, some seem reluctant to be part of a club that would have them as members.

Ironically, the importance of institutionalisation has been better appreciated by the populist opponents of liberal democratic reform than by their supporters. Orbán and Kaczyński know well that the struggle is pre-eminently one over values. That is why they find it so easy to play so fast and loose with formal institutions – use them when it suits, subvert them when it does not. They are talented de-institutionalisers of much that stands in their way. Fortunately, they do not always win, and at the time of writing this article Kaczyński has just lost. His successor, Donald Tusk, will need to appreciate these complexities better (and perhaps already has) than in 2010, when he coined the slogan that a promise to provide ‘warm water in the tap’ will not always be enough. A good promise to make and to keep, but not enough.

This might sound like an endorsement of the Hungarian and Polish objections to EU rule of law requirements as cultural insensitive quasi-imperial impositions. After all, am I saying anything else than Viktor Orbán recently has, that ‘cultures are different, constitutional traditions are different, so there is no single European definition and no single European standard. And if you create a case without these, the result will be not “the rule of law” but the “rule of man”’.Footnote 99

In such ways, contemporary populists find it useful to blur the difference between a plausible ‘margin of appreciation’ that allows that cultures are not identical, on the one hand, and a wall of ‘constitutional solipsism,’Footnote 100 on the other, that enables authoritarians to do their own thing, whatever that may be. And thus, in what only superficially appears a paradox, the very autocrats who ‘love constitutional identity,’ as Keleman and Pech have argued,Footnote 101at the same time can welcome the conventional focus on legalistic technicalities, as distinct from purposes. It plays into their hands. On the one hand, they contrive to undermine the ideal of the rule of law with the assistance of hallowed legal formsFootnote 102 or by shopping to find some country somewhere which has legal provisions ostensibly like their own. If it’s good enough for Germany, or Liechtenstein, why not for us? On the other hand, they can accuse critics of cultural insensitivity and play the ‘constitutional identity’ card: ‘that’s not the way we do things here.’

They get one thing right. Technical legal conformity does not necessarily produce adherence to the rule of law, as understood here. Footnote 103 It is certainly not sufficient, and in any particular legalistic detail it might not be necessary. Indeed, as András Sajó argues in this issue, too often ‘[t]he rule of law, if reduced to naked legality, will turn against the rule of law as it enables and reinforces rule by law. This means that instead of preventing and reducing the arbitrariness of power, legality becomes the transmission belt of power aggrandizement. What is necessary, however, is the notion and the reality of the ‘regulation and reconciliation of conflicts through the rule of law.’ And what is necessary for that, in societies where the notion and the reality have long been absent, is the institutionalisation of values supporting the tempering of power. However, for all their pretences and, to use a ‘technical’ term—cheatingFootnote 104—that is precisely what modern authoritarian populists seek to undermine. They reject the notion and undermine the reality of well-tempered power.

This is not because modern populist leaders don’t understand the importance of institutionalisation but precisely because they do. Indeed, it’s exactly what they do. Orbán and Kaczyński are well aware of the difference between the ideal of the rule of law and their own ambitions. While promoters of the rule of law might have had an inadequate appreciation of what would be necessary to institutionalise that ideal, their populist opponents have a trained nose and rare talent for drawing on and drowning that ideal in existing and already, often deeply institutionalised counter-values, and leaving bare forms without the content their framers intended, often with precisely opposite content. For the political logic of their view of politics and government involves, as Kaczyński and Orbán make plain, unity of power, unrestrained by institutional tempering or constraint. No tempering of power for them!

Thus, a committee of government appointees was formed to take over the appointment of judges in Poland and that was initially proposed by the former government in 2023 by the new far-Right government in Israel. The move is intended to augment the executive’s power to do what they want, unhindered by intermediate and independent institutions, by putting the composition of the judiciary in the hands of the government. However, S.72 of the Australian Constitution requires all federal court judges, including those of its single highest appeal court, to be appointed effectively in the same way. Forms aside, the government appoints the judges. But Australia’s High Court is one of the least politicised in the world, at times to a fault. Poles and Israelis who value the rule of law were right to fear the consequences of such a procedure, but so far Australians have done alright. The difference lies not in provisions but in political and legal culture.

And, notwithstanding his protests, another reason why rulers like Orbán are actually fond of battling on the terrain of forms is that unlike many earlier authoritarians who explicitly and altogether had little time for law at all, still less the rule of law, recent authoritarian-populist regimes around the world have contrived to undermine the ideal of the rule of law with the assistance of hallowed legal forms.Footnote 105 It turns out it’s not so hard.

These techniques of legal self-mutilation have metastasised and spawned a variety of neologisms: abusive constitutionalism, stealth authoritarianism, constitutional coups, autocratic legalism, abuse of the constitution, or twisting and turning of the rule of law.Footnote 106 These are indeed deliberate, if covert, forms of de-institutionalisation of legal institutions.

Forms of chicanery multiply, whereby one pretends fidelity to formal rules, in order to achieve purposes alien to the underlying (and often unwritten) aims, values, practices and institutions on which the substance of the rule of law was supposed to rest.Footnote 107 Moreover, because those aims and values have no weight with these leaders, they can be constitutionally pedantic when it serves their ends,Footnote 108 and ‘constitutionally shameless’Footnote 109 when pedantry does not work for them. Given the often-sophisticated legalistic pretences that accompany these subversive practices, conventional partisans of the rule of law have difficulty knowing how to respond. Thus, as Kim Lane Scheppele has observed of Orbán’s mock objection, quoted above: ‘Here is Viktor Orbán's approach to the rule of law – making every requirement so detailed that the forest is lost in the trees. He loves checklists because they can always be gamed. But he hates general principles because he violates them all.’Footnote 110

But if we return to Thompson, these gambits are less persuasive. Though particular ways of achieving this result might vary greatly, well-tempered power calls for key powers to be checked, balanced, separated (and then connected). Instead, anti-rule of law populists seek to consolidate and concentrate power in their own hands. Where well-tempered power depends on substantial independence of power-adjudicators from power-wielders, such populists increase their dependence. Where one mediates power and calls for a patient filtering of decisions through institutions, the other seeks to make it all personal, unmediated, and unconstrained: it endorses an instantaneous quasi or pseudo democracy in which a decision by the leader may become law the next day.

Deliberately and insidiously, anti-rule of law, legalistic populists make it difficult to tell that anything particularly sinister is happening. Institutions are ‘deflated rather than demolished by populist authoritarians.’Footnote 111 The rule of law is typically brought down by ‘a thousand cuts,’Footnote 112 many of them small and often unseen, while the cumulative result is blood-letting of the notion, on a torrential scale. All done with the active assistance of law.

Europeans who have watched the cat-and-mouse games played between the European Commission and lawyers representing Poland and Hungary, or who have witnessed Hungary’s Prime Minister Viktor Orbán’s self-vaunted ‘peacock dances’ in Brussels might have a sense of how these legal games are played. Apparently earnest and technical points of law are raised by regime lawyers: about interpretation, inclusion or exclusion of this or that provision, sacking and packing, dismantling or inventing, this or that court, ‘disciplining’ this or that disobedient judge —all replete with poker-faced legal argumentation, typically of a highly formalistic sort. If critics allege that an institutional innovation is intended, say, to threaten judicial independence from the executive, the hunt will be on for some ostensible, context-free, in-any-way-similar-looking arrangement, cherry-picked from anywhere that might serve. That these comparisons and purported borrowings are radically superficial, selective, decontextualised, and hostile to the achievement Thompson writes aboutFootnote 113 is rarely obvious to laypersons and never, naturally enough, emphasised by their sponsors.

And so, many contemporary governments have sought in these and other ways to undermine key legal and other sites and processes that might temper their power. They are not necessary ‘anti-institutional,’ since they are keen to use institutions to serve their own purposes. What they are anti is independent institutions, in law, administration, media and society. These governments have disdain for the notion that their power should be tempered, though they claim to be serving the rule of law in their own way, ‘with Chinese, Hungarian, etc., characteristics.’ These attempts to eliminate competing sources and resources of power and destruction of opposition are often complex in form but they are not complex to understand, and they have little to do with the sanctity of canonical institutions. They have to do with the point of the enterprise. Do they sustain or reduce the difference Thompson rightly treasured, ‘between arbitrary power and the rule of law’?

Where the achievement of which Thompson wrote is undermined in such ways, what we are seeing is an often-refined form of abuse of the ideal of the rule of law, but in its own name. Law is used precisely so that the purpose and the fundamental principles of the rule of law can be abused.Footnote 114 For the idea advanced by various leaders and sympathisers, that we are witnessing the birth of a cultural distinct but equally legitimate 'Polish [or Hungarian, or Venezuelan, or Israeli] rule of law', is simply absurd when the whole direction of travel is away from any measures and practices that might temper the exercise of ruling power, and so serve the rule of law. Not because some particular, imported, western institution is lacking, but because by their actions these governments are subverting the very ‘notion’ of the rule of law and, thereby, the chances of its realisation. Perhaps Polish circles are square, and Hungarian squares are circular, but that's not my experience or expectation. The achievement of universal significance that Thompson identified as the rule of law and I, more generally, characterise as tempering power, might be approached from many different locations and in many different ways. But not by systematic movement in the opposite direction.