Well-Tempered Power: ‘A Cultural Achievement of Universal Significance’

Abstract

According to Laurent Pech, the rule of law was described as a “‘buzzword’ by [Hungary’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” (Pech, Hague J Rule Law 14(2–3): 107-138, 2022 128). In contrast, the English historian, E.P. Thompson, notoriously and controversially called the rule of law ‘a cultural achievement of universal significance.’ With small amendments, I agree with Thompson. Each word in that phrase, I seek to demonstrate, deserves emphasis and respect. However, it makes a huge difference what one takes the rule of law to be about. 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 that which is a cultural achievement of universal significance. It is a mistake to identify it, as so many do, with any allegedly canonical arrangement of forms and institutions and rules that are enlisted or assumed to embody it. Many people make that mistake. Some do so, because they naively think that installation of familiar institutions they associate with ‘the rule of law’ is the same as generating the ideal itself. The disappointing history of rule of law promotion around the world shows that is not the case. On the other hand, modern illiberal, often populist, regimes are happy to endorse such a mistake and pretend that they are committed to the rule of law by making a show of conformity to legal forms, while systematically subverting and abusing the rule of law itself. Both the naïve and the malicious interpretations should be rejected.