Martin Krygier

Law as tradition

This essay argues that to understand much that is most central to and characteristic of the nature and behaviour of law, one needs to supplement the ‘time-free’ conceptual staples of modern jurosprudence with an understanding of the nature and behaviour of traditions in social life. The article is concerned with three elements of such an understanding. First, it suggests that traditionality is to be found in almost all legal systems, not as a peripheral but as a central feature of them. Second, it questions the post-Enlightenment antinomy between tradition and change. Third, it argues that in at least two important senses of ‘tradition’, the traditionality of law is inescapable.

Rule of Law (and Rechtsstaat)

In all its many versions, the rule of law has to do with the relationship between law and the exercise of power, particularly public power. As an ideal, it signals that law can and does well to contribute to articulating, channeling, constraining and informing - rather than merely serving - such exercise. Beyond that, what it rules out, what it allows, what it depends on and indeed what it is, are all matters of disagreements that stem from differences among political and legal histories and traditions, but also reflect dilemmas and choices that recur, in different forms and weights, in many such histories and traditions. This entry is concerned with these enduring themes, dilemmas and choices, as they occur within particular traditions, especially the common law ‘rule of law’ tradition, on the one hand, and the Continental Rechtsstaat tradition, on the other.

The Rule of Law and 'The Three Integrations'

There are at least three sorts of difficulties that hamper successful promotion of the rule of law. Each of these would be lessened by integration of materials which RoL promoters commonly avoid. First, the rule of law depends upon many factors beyond what most lawyers know, or know how to know. These include non-state norms, attitudes, beliefs, practices and institutions. Secondly, this is not a peculiarity of societies where the rule of law is weak and in need of promotion, but true of all societies, including those of rule of law promoters. Recognition of this requires reconceptualisation of what is required for law to rule. And that, in turn, would benefit from integration of thought from domains and disciplines that RoL promoters have hitherto tended to consider other people’s business. Such disciplinary ecumenism might make them more alive to the ends of what they are trying to promote; less aimlessly tied to particular institutional means.

Is There Constitutionalism After Communism?: Institutional Optimism, Cultural Pessimism, and the Rule of Law

Abstract:This article discusses two contrasting tendencies in thought about postcommunist experiments with constitutionalism and the rule of law: institutional optimism and cultural pessimism. The first tendency focuses on institutional design. Typically it draws on theoretical models or foreign comparisons. Often it ignores, or does not know what to make of, cultural particularity. The second emphasizes such particularity. In extreme forms it encourages a generalized skepticism about the potential for successful grafts of imported institutions, ideas, and values.The article seeks to establish the insights and limitations of both tendencies. It supports the view that institutional designs need to be culturally grounded, but rejects common forms of cultural pessimism, which would rule out transformative ambitions in principle, rather than encourage sensible caution about problems they might confront and pitfalls they should avoid. The article also seeks to convey some of the complexity of relationships bet...

Conservative-Liberal-Socialism Revisited

tendency to devour each other. And not only each other consider the ravenous adjective in “socialist democracy,” the gluttonous noun in “democratic centralism.” And what of “salami tactics”? This voraciousness is reason to be chary of such predatory semantic couplings. And so the successors to communism were, when they insisted on “democracy [and other good things] without adjectives.” But such things never come without adjectives, explicit or implicit, since the pure forms of democracy, legality, and so on, have yet to be realized. We should get used to that and ask questions about the quality of the partner and the potential success of the partnership, rather than advocate an impossible celibacy. That is consistent with St Paul’s advice to would-be fornicators concerned to avoid sin (namely, marry), and it is wise advice. We should all avoid bad marriages, of course, but not every marriage is bad, perhaps not even every ménage à trois. One can even end up with something greater than the sum of the parts. CLS (Conservative-LiberalSocialism), for example. Conservative-Liberal-Socialism was also a product of communism, though presumably unintended and certainly unofficial. Leszek Kolakowski published its credo in exile in 1978, though he warned that his “great and powerful International . . . will never exist, because it cannot promise people that they will be happy.” More recently, however, Adam Michnik claimed that this “peculiar coalition of ideas” actually had emerged among his generation of dissidents in the 1980s, since their rejection of communism stemmed from “reasons equally dear to a conservative, a socialist, and a liberal.” The coalition “collapsed along with communism,” however, as erstwhile allies became bitterly polarised foes—conservatives against liberals against socialists—and he sees no way to resurrect it. He votes for radical democracy, “gray” but “beautiful.” In the meantime, the ex-foes of the coalition, the much-made-over Polish post-communists, do well while its ex-members fight each other and stumble hitherand-thither. Perhaps they should re-group, and perhaps we should too, so that the “great and powerful International” really does come to exist. For there is a lot to gain. The particular circumstance of having an enemy one hates more than one’s traditional opponents has turned out to be transient, and fortunately so. But from it can come insights that deserve to endure, even where they have been forgotten or discarded, and have potential to reach far beyond the places and time of their origin. Such are the insights of Conservative-Liberal-Socialism. Taken individually and taken whole, each of the traditions within Conservative-Liberal-Socialism has unacceptable elements, versions, interpretations and exemplars. None of them is without its weaknesses or blindnesses—sometimes tragic. Nor are any of them adequate, on its own, to the job of thinking well about contemporary politics. Nor are they obviously compatible, since some were forged explicitly in opposition to one or both of the others and some come to find their voice—as in post-communist Europe— directly at each other’s expense. Yet each of the component traditions is drawn to distinctive projects and styles of thought which are slighted or rejected in typical forms of the others. Not all of these sit easily together, but some do, or can be made to come to an accommodation. In combination they can augment and on occasion correct each other. For sometimes their mutual neglect or opposition is a result less of hard thought than strong feeling, less mental than visceral. It is worth rethinking. It might then become easier to digest. Indeed my only objection to the movement is not Michnik’s, that it is too colorful, but that it is not colorful enough. I would prefer a rainbow coalition. In an earlier modest variation of Kolakowski’s credo, I substituted social democracy for socialism, trusting that he wouldn’t mind. I will take it that, since no non-democratic interpretation of Conservative-Liberal-Socialism can be taken seriously today (something that was not always the case), it can go without saying. My current preference is for a Conservative-Liberal-Republican-Communitarian-SocialDemocratic International. But I have not been asked to write about that, and on the principle that a bit of a good thing is better than nothing, I am prepared to commend the more muted tones of Conservative-Liberal-Socialism (with its silent but ever present “D”). As did our founder, Kolakowski, I will comment on each of the component traditions in turn, and confine my observations to three aspects of each of these traditions. Conservative-Liberal-Socialism Revisited

The Fall of European Communism: 20 Years After

AbstractIn 1989, starting in Poland and spreading quickly throughout Central and Eastern Europe, European communism imploded. In some places new states were born, in others old ones re-established their independence. In all there was talk of ‘transition’ to something very different, something at the same time very new and very old.Twenty years on, a lot has changed. Much that seemed revolutionary then seems old hat now. And the attempt to cut and paste forms, structures, and successes from ‘normal’ societies, as the West was known in the East, has turned out to be a far from conservative enterprise, not simple, and not always popular. Indeed, homegrown conservatives have come to be suspicious of it, often accusing their opponents — those devoted to democracy, capitalism and the rule of law, for example — of untraditional and unforgivable radicalism. The suspicion is general, encompassing many ideals and practices believed to be alien imports. It is most vocally directed against democracy and capitalism. However it has also reached — less perhaps as rejection in principle than disappointment in practice — that animating ideal which has had such a renaissance since the collapse of communism and in connection with it: the rule of law.For this special issue, six distinguished students of post-communism were asked to reflect on the fate of the rule of law in areas that they knew best; of course they could stray where they felt necessary. Balcerowicz focused primarily on the economy, Hendley on Russian courts, Ganev on east European constitutional and regular courts, Skąpska on privatisation, Czarnota on ‘transitional justice’ or ‘dealing with the past’, Přibáň on the implications of a ‘return to Europe’ both as ambition and achievement.

Why the rule of law matters

Alon Harel begins Why Law Matters with a disarming confession. He feels ‘lucky that this book was not written when it was first planned’, since he had begun it believing roughly the opposite of wha...

Inside the Rule of Law

Palombella (2012) has offered us not merely a strong case for one distinctive conception of the rule of law, but also a sustained demonstration of how to think well about these matters. The substance of his account is this article’s main subject, but his methodological example could usefully be emulated even by those who might draw different substantive conclusions from such consideration. The article starts with substance (§ 1), his “institutional idea concerning the law” and moves to his method (§ 2), one that combines attention to the philosophical underpinnings of the rule of law, its specific historical origins, and possibilities for its elaboration and application in contexts quite different from those where it originated. It then asks three questions: one about the status of non-arbitrariness in Palombella’s conception (§ 3), a second about the point or telos of the rule of law (§ 4), and a third about its social dimensions (§ 5).

Philip Selznick: Incipient Law, State Law and the Rule of Law

If celebratory rhetoric is to be believed, or money devoted to a cause regarded as a sign of its success, ours is the era of the rule of law. No one will be heard to denounce it, leaders of countries all round the world claim to have it, vast sums are spent to spread it. But how is that to be done? Typically, programmes of rule of law promotion focus on state agencies, particularly legislatures and courts. Laws are enacted, judges trained, computers bought, libraries stacked with books, and still, far from atypically, the results are disappointing. This identification of the rule of law with state law is not news, nor should it be surprising. These observations are perhaps all truisms, but they are often ignored. We still await a sociology of the rule of law, while in the meantime we pour huge sums of money into inadequately grounded, if well meant, attempts to deliver it. Were we to seek such a sociology we would not have a huge number of sources. One place to start is the work of Philip Selznick. That recommendation is at large, and even in relation to this subject could refer to much of Selznicks work. In this essay, however, I will focus primarily on one book that raises these issues most centrally: Law, Society, and Industrial Justice. It has nothing specific to say about how to implant the rule of law in societies that lack it and have been little acquainted with it. However, those with such ambitions might well pause to attend to the sociological complexities this work reveals in a relatively modest proposal: to generate the rule of law in a well regulated domain of life, industrial relations, in one of the most rule of law rich countries in the world, the United States. Their reliance on state law, and ignorance of non-state law, might then come to acquire some recalibration. In a world full of lawyers and policy advisers propagating state-centered institutional recipes for the rule of law, and then affecting disappointment that benighted beneficiaries still violate or deliberately ignore it, a reminder of the complexity of non-state conditions for the rule of law might be salutary.

Marxism and bureaucracy: A paradox resolved

Abstract This article describes one apparently paradoxical course of development of the concept of bureaucracy within Marxism. The paradox has to do with the striking difference between the role attributed to bureaucrats by Marx and by a number of prominent members of the heretics from the Marxist tradition. In Marxs own analysis of contemporary societies, bureaucracies were rarely given a central and never a primary role. In his portrayal of the future society, bureaucrats were swept from the stage altogether. In the writings of Trotsky and theorists of a new bureaucratic class, bureaucrats have come to play a central and ultimately the central role. The argument of the article is that both elements of the paradox stem from precisely the same set of theoretical commitments, in particular the same combination of claims as to what the fundamental activities and actors in societies are, what are the dynamic forces in societies and what is the destination of modern societies. Notwithstanding serious and muc...