Krygier: Institutionalizing and Deinstitutionalizing the Rule of Law

Alexander Lazovic (EUI) interviews Martin Krygier (Professor of Law and Social Theory at the University of New South Wales) on how to understand the rule of law crisis from a teleological perspective. You can listen to the podcast or read the edited transcript below.

Alexander Lazović: My guest today is Martin Krygier, here to talk about the institutionalization and deinstitutionalization of the rule of law. He is currently the Gordon Samuels Professor of Law and Social Theory at the University of New South Wales, Co-Director of the Network for Interdisciplinary Studies of Law, Honorary Professor in the Regulatory Institutions Network, Recurring Visiting Professor at the Graduate School of Social Research at the Polish Academy of Science and he is currently working on the project Constitutional Populism – Friend or Foes of Constitutional Democracy.

You have been one of the very early proponents of the idea that the rule of law is not merely a laundry list to be ticked off but should rather be seen teleologically. Could you briefly explain what this means and how it affects how we think or should think about the rule of law.

Martin Krygier: It is not just a laundry list. It’s a laundry list of particular legal rules, forms of rule, institutions, and arrangements. That is the mainstream way of starting to think about the rule of law. “The rule of law, as conventional wisdom has it, consists of …” and then you fill it out – independent judiciary, separation of powers etc – if you are a lawyer or a constitutional developer. If you are a legal philosopher you talk about the forms of rules: clear, prospective, unambiguous, and so on. It seems to me that, while these are potentially important characteristics for legal institutions for certain purposes, that’s exactly the wrong way to start. And if I can draw on the wisdom that I found on google the other day: the CEO of Black + Decker, which is a large American power tool company, is said to have said – even if didn’t, he should have – “People don’t come into a hardware store because they need our drills. The come in because the need a hole in the wall.” 

People who are concerned about the rule of law – who suffer from the lack of it, and dream of a society where it matters – are not primarily interested in the bits and pieces that lawyers concoct to do something. They are interested in the something.

There is a problem that is at the heart of rule of law concerns. And that problem has been identified for a very long time as being “arbitrary power”. My way of looking at it is not to start with the lists, because the lists are bound to be local, to some extent, and they won’t apply everywhere in the same ways in different times. Aristotle is constantly cited as one of the early proponents of the rule of law; he was not thinking about our institutions. And problems change. So, if you are worried about the rule of law and Google, you are worried about a problem that has features in common with traditional rule of law problems that include the possibility of arbitrary power. But your solutions are going to have to be different. My argument is, first of all, to ask, “what’s the problem?” My suggestion, which is not at all original, is that arbitrary power is a huge problem. The exercise of power is a domain of concern for everybody. Then what do you want? Well, you would like it somehow to be softened, or moderated. That’s an aim for the rule of law. Only then, it seems to me, is it appropriate to ask, “well, how do we do it?” In certain places you do it some ways, and in other places these ways don’t have any tradition, they don’t have any grounding, and they are not institutionalized locally. So, you have to think harder about how to get in.

Alexander Lazović: We will return to institutions in a moment, but before we do so a further question: despite rejecting these laundry lists, you have in the past given at least some examples of norms that would be deemed necessary for the rule of law to persist. Two that you mentioned in particular were the prevention of torture and the prohibition of using racist selection criteria for university admission. Are these inherently connected to the rule of law, or are these connected to other fundamental values – for example, human dignity or fundamental human rights?

Martin Krygier: It’s common in the conventional understanding of the rule of law to distinguish between thin and thick accounts. Thin accounts just focus on particular formal institutions. Thick accounts say that, to get the rule of law, you also have to have some morally attractive content to the law: human rights, justice, etc. I don’t like that distinction, and my own view straddles these two elements. I think it’s important to distinguish one’s understanding of the rule of law from lots of other good things we would want: justice, human rights, equality, fairness and so on. Because if the rule of law means all those things, it does not have a conceptually distinct role to play. You don’t need another phrase. If we go back to arbitrary power, it’s one of those things like obscenity, for which people say: “I know it when I see it, but I can’t define it.” When we think of the arbitrary power, we might think of capricious and willful exercises. I’m not a conceptual analyst, but I’ve tried to distinguish four sorts of exercise of power which are arbitrary. My concern is not “are they just?”, it’s “are they arbitrary?”

One is very strong in legal traditions, certainly the common law tradition, but also many others – uncontrolled power. If power is uncontrolled – that’s the original understanding – it’s arbitrary. A second one is the concern of the legal philosophers, including Lon Fuller and Joseph Raz and many others: predictability or reckonability. Can we know, when we are acting, how the law is going to affect us? A third, which Jeremy Waldron introduced, is what he calls procedural, but which is a much larger notion than I think he elaborates. It is that we should be treated with respect, as humans, and not, as he puts it, as “dilapidated houses”, or “rabid dogs” – as just objects. And a fourth sort of exercise of power is one which I haven’t written about, but I think it is actually perhaps the most important, and I’m just getting to what I hope is an understanding of it. This is power which is ungrounded in a justifiable relationship to a permitted or justifiable goal. When I talk about torture, it is a paradigm case of arbitrary power in the third sense: no respect for humans as persons. If one talks about selection on racial criteria for jobs, maybe you could argue that if you want Othello, the actor should be black and male. Even that is now becoming complicated. But if you are talking about selection for university entrance or a whole range of things, then the  exercise of power of the racial criteria is unrelated to any justifiable goal. 

In my elaboration of arbitrariness, the fact that this has a substantive element is not the main issue. The main issue is: does it treat people in ways that they can’t prepare for, that just ignores them as persons that are the victims of the exercise of power.

Alexander Lazović: That’s very interesting – especially the fourth aspect relates to many legal issues concerning anti-discrimination law in a more general sense.

Martin Krygier: I’ve puzzled over it. I have written on the first three for some years and I always felt there was something missing. And I’m trying to understand this one. It relates to the doctrine of proportionality. I sense that, if you want to know what’s going wrong here, it is that the exercise of power is not proportionate in any justifiable way and related to a justifiable end. But this is not a substantive demand in terms of some requirement that justice be served. Those are good requirements, I’m all for them. But they are separate.

Alexander Lazović: To return to the question of institutionalization, let’s talk about what institutionalizing the rule of law actually entails. You argue that the rule of law needs to be institutionalized. And you distinguish between processes of institutionalization that happen naturally, and projects that require leadership and mindfulness of existing values and institutions. Could you briefly introduce our listeners to how you understand these terms and their distinctions? And in connection with that, the European Union, which is often called a project, is currently in a rule of law crisis. Do you see any potential connection in seeing the “European project” as a project, and the failure to institutionalize the rule of law in some Member States? Can we speak of a lack of leadership in this regard by the European institutions?

Martin Krygier: In another branch of work, I have been very influenced by a great American sociologist, Philip Selznick –  I wrote a book about him. He was one of the foremost analysts of administrative and organizational behavior. He wrote several books: one called “Leadership in Administration,” his most famous early book, his first book “Tennessee Valley Authority and the Grass Roots,” and then one of interest in East Europe, I have no doubt, is an extraordinary book on communist organizational tactics called “The Organizational Weapon”. He began thinking about these subjects by arguing that it was common then to think of organizations, bureaucracies, and so on as technical instruments. Particularly after Weber there was this notion that modern bureaucracy was formal, rule-bound, that the law of particularly Western European states was formally rational, and that these formal mechanistic elements of law or organization were distinctively and more fully developed in the modern world than ever before. And Selznick says: “Yes, they are distinctive, these formal characteristics, but if you analyze the ways that organizations behave, you discover that informal networks, connections, loyalties, myths, stories, and narratives about the organization play a hugely important role.” Think, for example: What is it to be a marine? Or a member of the church? Is it just that you belong to an organization that does this rather than that, like the post office, or is there more going on? And there is something more going on. And he used a term which is well known, but not in his sense: “institutionalization”. An organization becomes institutionalized to the extent that it is infused with value – this is his definition – beyond the technical purposes at hand. It becomes something that is valued, something to which people have a connection. The US constitution, he says, is a document. But US constitutional law is not just about a document. It is a whole culture of interpretation, a whole range of conventions of norms and traditions, of ways of reading, of ways of interpreting, and so on. And that’s more generally true.

I have tried to think about why, to the surprise of many, leaders like Kaczyński in Poland and Orbán in Hungary, have turned what seemed to be liberal democratic success-stories into parodies. The question I asked when I wrote the first article on this when Trump came into power was why did Trump have so much difficulty doing what Orbán and Kaczyński found so easy to do, i.e., ignore institutions that were wrought so painfully and conscientiously, destroy many, take over others and so on? And my suggestions – not as a wholesale explanation, but just as an element in the story – is that in the euphoric, enthusiastic heyday of post-communism end-of-history – not that anybody believed in end-of-history, but nobody had too many alternatives – nobody was thinking deeply. And maybe it’s not available to us – maybe we simply don’t understand on a large scale how to think deeply about how to make new, foreign, maybe alien, institutions stick against competition. We know what they should be. 

There was a lot of talk in the first few years, and also in rule of law promotion projects all around the world, about international best practice: “my refrigerator has these components, they are the best in the world, we should have them here.” 

Ok, it might work for refrigerators, though that, too, depends on an effective electricity supply or whatever. But legal institutions and democratic practices are more complicated. They work best when they are institutionalized. And what does that mean? In any society, and in Eastern European societies, I think you can make the case that there are already institutionalized values that aren’t particularly hospitable to what the reformers were seeking to import throughout the 1990s. They had their own ways, their own rationales, they were not raised in a democratic fashion or a legally constrained fashion that was part of the landscape. Everybody knew that and there was a lot of what the Polish sociologist Grażyna Skąpska called instrumental thinking, rather than reflective thinking, about how to develop constitutionalism, rule of law, and other aligned practices in post-communist circumstances. Everything seemed obvious – I’m old enough to have been around at the time. There’s the big system – a bi-polar cold war for the second half of the century, and then bang one side collapses. It’s not even punched, no war or anything, it just falls apart. And in those circumstances, I think it was natural but perhaps not wise to think: “Well, there is only one game left in town. There is a winner, and the winning team has these components: democracy, market economy, and rule of law. Let’s get behind that.” At elite levels that was the program,  and it was not deeply institutionalized with a lot of people in the countries where it was imported.

You mentioned process and project. These are my terms, not Selznick’s terms, because I’m adapting him. He is not talking about these issues, although it is his language. Institutionalization in any society happens often as a process. Things develop, we grow attachments, loyalties, understandings – this is the way we do things here. And in many post-communist countries law was not the way we did things here. Law was alien, imposed, suspected, and so on. But the process is something that developed organically. Of course, it can be shocked: there is a war and some old understandings fall apart. But there is another element to institutionalization, which was really Selznick’s problem: if you are the leader of an organization, and you want to change something, then what do you need to do? And he says: well, first of all, you need to be aware that this is not just a mechanical matter. If you are leading an organization, it is not just a blank canvass. There are going to be all of these pre-existing loyalties, and ways of behaving. Not all of them are congenial to you. 

If you want change, it’s not impossible, but you have to think how to make this graft on to these existing institutionalized behaviors and organizations which provide you with resources. If you can draw on them, they go in your direction. But they also provide resistances.

If they are hostile, they don’t accommodate you, and they are not interested in what you think is obvious, then you have to think about how to bring them around. That is what Selznick focusses on in “The Organizational Weapon”: how did communists develop an organization in hostile surroundings to which people devote their lives – or you could ask this about jihadists now. These are organizational techniques. You don’t just tell them – you have to inculcate, and you have to make this a way of being. And my belief is that reformers, with whom I identified and whom I support, didn’t give this much of a thought. Now, the European project is a project, and I’m not an expert on it, it’s not something I work on. But I have observed it and I edited a book with Adam Czarnota and Wojciech Sadurski on the European project at the time of accession, “Spreading Democracy and the Rule of Law?” And at the time I was struck by the extent – and this is not my observation but just one that I remember – to which accession was such an elite-to-elite process. Now that has become a cliché. I don’t condemn them for that simply, but I think what it betrays is a lack of a sense that institutionalization is going to be what makes things count. 

If you say to a country which is desperate to get in that, first, you have to satisfy 80,000 pages of the acquis, well you are not talking to the average peasant, or the average judge, or the average bureaucrat, or the average politician. So that I take to be a failure of institutionalization.

Alexander Lazović: Let’s turn to the other side of the coin – de-institutionalization. You mentioned in one of your papers on Hungary and Poland that one of the new ways in which populists proceed is that they adhere to the form of the rule of law while hollowing it out in substance. Can we still speak of such an adherence in the Polish case, considering that the government has shown very little regard for constitutional norms and even its own constitutional court?

Martin Krygier: I have a quotation that nobody will have heard. I did an interview with a remarkable Slovenian journalist, Ervin Hladnik Milharčič. This was five or six years ago. He was saying how the EU came to Slovenia. He said: “We changed the constitutional order by downloading it from the servers in Brussels in stages defined by the EU itself. It should have been hard work, but it just meant that we needed to hire an IT web browser. There was no real political discussion.” And then he said political differences formed on the fringes of the political debate such as past, guilt, and so on. And they were vicious, for example gypsies. This went on for 15 years, for all  post-communist countries who wanted to join the EU. Discussion moved to these marginal issues. Now, I think that’s both brilliant – the computer analogy –  and short sighted, because these are not marginal issues. 

In terms of institutionalization the reformers were all at the server stage. And gypsies, the past, guilt, etc. were marginal issues that weren’t part of their game. But for many it turns out that they were not marginal issues. What struck me when I wrote the first of these pieces, trying to work through this notion of institutionalization, was that reformers – certainly from without, such as Americans and Germans, but also the domestic elites – lacked the sense that institutionalization was key. Donald Tusk, before he finished in government before PiS came to govern, said he didn’t want to talk about the vision thing – it was all about warm water and taps. Well, that’s not how Kaczyński thinks about these things, unless the people want warm water and taps, and then he’ll try to persuade them that he is the only person who can give it to them. 

The one thing that the populists really understand is the importance of institutionalization. They are not interested in any of the substantive values of the reforms, except to break them or hollow them out. But they are instituted. Their assault is an assault in the first sense of de-institutionalization of the reform.

So the populists present these reforms as brought about by aliens who believe different things from us, who travel too far, who are far too well-educated and believe different things from us. This is exactly a sort of counter-Selznick playbook. This is saying, “Ok, we want to make it impossible for these new institutions to be grafted on, to be grounded, and we do it by attacking their lack of connection with our institutionalized core” – however so defined.

One of the things that a lot of people have remarked upon is that these days we don’t have many, although we have a few, military coups. We don’t have bloody revolutions, again certainly not in Western or Central Europe. We have constitutional arguments, and in Poland – this includes one of my co-editors, Wojciech Sadurski, who is sued as soon as he opens his mouth– it’s a legal strategy. The constitution is treated like a criminal code. I was once at a conference at the CEU in Budapest in May 2017, just after lex CEU. The then-President of the CEU, Michael Ignatieff, came to a conference and he said: “It is so puzzling, I’m not a lawyer but it is obvious that the attack is political. So, when our people go to negotiate with government people, we think that they are going to argue about policy etc. And they said, ‘No, sec. 2.1.c.b. of the what-ever-act-it-is…’.” So, there is a kind of “using of law,” not just constitutional law, but also administrative law. 

Law is put to use, but in ways which de-institutionalize the values of the rule of law. 

And first they do enormous amounts of hollowing-out. It is not just a mechanical thing. 

You appoint some judges, as in Poland, who have no right to be appointed to the constitutional court, you set up your own commission that appoints judges, and you have a disciplinary committee. It is not only that you first launch a huge attack on judges that are corrupt using billboards and the media that you own by this time – at least the public media. You de-institutionalize – you hollow out – but you use the law. So, it is not like the communists who destroyed law in the first tages. Nor is it like Burma, which I know a bit because I used to work a bit there. The Burma regime – presumably again now, but now they pretend to be more legal than they used to – they just closed all the law schools in the earlier regime before the first transformation. 

But not now, now you use law. You take it over instrumentally, you get other people, and you detach it from the values which were supposed to animate it, but once it is completely emasculated you start to build it up again as your instrument. So first you break it, then you take it, and then you use it.

When you think of the shrill rhetoric of Orbán in Hungary, of Kaczyński in Poland, of Chavez in Venezuela, of Bolsonaro in Brazil, of Duterte in the Philippines and so on, do you think they all believe what they say? No! They don’t say it’s just a matter of warm water and taps. The same goes for Trump, who is an extraordinary example of such a leader. Usually populist rhetoric is a sustained and very widespread attempt at de-institutionalizing certain things and then re-institutionalizing others: for example, the role in the Hungarian constitution of the church, the crown, and a whole range of things. They knew what this game was about, in a way that we, I fear, did not fully understand. Partly because modern technocrats have a lot more faith than is perhaps wise in a sort of can-do best practice approach. This is because, I suspect, they don’t understand institutionalization, but more deeply and more worryingly, no one understands it. Maybe populists do, but it’s very hard to tell. 

[N.B. In further correspondence after the interview, Martin Krygier added that “what Polish lawyers are doing now – constitutional tours, public demonstrations and protests –  is exactly a form of institutionalization that I commend. However, it’s only the attack [of de-institutionalization] that prompted it. When there were no enemies, no-one thought about their defenses”].

You could say the de-institutionalization story applies to Afghanistan. Of course, that’s only a small part of it. But I focused a little on law, and a close friend of mine with whom I did a book on Afghanistan did a survey while he was in Kandahar of attitudes to the court. There are three systems there: the traditional system, the Taliban system, and the government system. The traditional system was the one that people believed in most, because they knew it. It was not particularly efficient, but it was highly institutionalized. Second came the Taliban, because for reasons of revolutionary strategy they tried to solve problems among people that they weren’t killing, which is another way of solving problems. The third was the courts that we were backing – the court houses that the Americans were building. They were inefficient, and they were corrupt.

Alexander Lazović: Turning back a bit from Afghanistan, which obviously is a whole other tragedy aside from the populists in Europe and North America, and South America, there seems to be another prevalent tool being used by these populists – a rhetoric of democracy where they seem to build up democracy as a rival to the rule of law. I would like to ask you to maybe talk a bit about the relationship between democracy and the rule of law: are they rivals or do they need each other? Especially with regard to the prevention or tempering of arbitrary power, some would argue this is also the point of the democratic system. What would you tell people that would argue that a rule of law that goes beyond rule by law is unnecessary to prevent arbitrary power in a democracy?

Martin Krygier: I’ve written exactly on that question in the Cambridge Companion to the Rule of Law that just came out last week. I had a piece there on democracy and the rule of law, so, really, I will just be paraphrasing some of what I said there. I think the first point is that they aren’t the same. Very often in the UN, and other declarations, we say what you need is democracy, human rights, etc., as though they all fit seamlessly together. First of all, they ask different questions. Democracy asks who rules, or at least who controls the rule. Of course, there is some notion in modern societies that the people are the sovereign. Isaiah Berlin used to distinguish that question from the question of how much does government interfere with you? He called this auestion negative liberty. I think there is a third question, and this is for me the rule of law question: how are we ruled? And the rule of law tradition says we should be ruled in a constrained, moderated, and tempered fashion. So they are different. 

At the dawn of thinking about these things at the beginning of the 19th century, Benjamin Constant distinguished between the liberty of the ancients, where people ruled as in Athens, and the liberty of the moderns, where we have rights. And he argued that these, in their pure forms, are inconsistent. Because rights require a constraining of the popular majority, whereas democracy requires popular majority and that’s it. It goes in both directions normatively. In the 19th century, when Tocqueville worried about the tyranny of the majority, and Mill did the same, they were worried about democratic excesses. They didn’t use the term “rule of law”, but you could say there is this tension. And populists go in the other direction –  they say the tension is: why should we be ruled by nine judges? If they are in America, they’d say white and male. There is an inconsistency in the populist claim between democracy and intermediating powers, that is, ways of constraining and channeling the exercise of power, so that it is able to do the things it should do, but not able to do things that it shouldn’t do. 

While these are different things, my view is that in modern conditions a real democracy requires both popular control in one sense or another, and intermediation and protection against a whole range of possible fouls, including the power of the majority.

Women in Afghanistan will not find it easy to participate in public life, not only because they are ousted from voting by men, but because they get killed for it. Their private rights are being invaded. That has both public and private consequences. That is why Habermas eloquently argues that you need public rights, the right to participation, which are undergirded by private rights. Each needs the other. To secure the public, people have to be able to assemble, they have to be able to argue, to influence, etc. But to secure private rights – the rights to be protected by the rule of law – people have to have some influence over government. Nadia Urbinati, who has written wonderfully on democracy, points out in several books that democracy is not just a matter of expression of one’s will. It also requires the ability to form opinions. The fact that you go to a ballot ignorant, or simply with the knowledge of the propaganda of one side, has to be an abuse of the democratic process. So, the argument that I believe is that democracy and the rule of law are deeply, deeply complimentary. 

There is a more sophisticated argument, not by populists  although they use that term, which distinguishes between political and legal constitutionalism. And again, this is the argument that we give too much power to these aloof, independent elite bodies, and we should open up the possibilities of popular control within democracies. So, it is constitutionalist in name, but some of the institutions we would use would not be judicial bodies but popular orders and popular participation, maybe citizen juries and so on and so forth. In principle, I think that’s absolutely kosher. 

But that language has sometimes been taken over by the sophisticated jurists around Orbán to pretend that what he is doing or what Kaczyiński is doing is political constitutionalism. But it is not, because it has no constitutionalist ambition. In fact it has the opposite goal –  to constrain, or channel, the so called popular will, which is the will of the populist leader. 

To conclude, I think that these are complementary and mutually necessary for a healthy democracy and for a well-functioning rule of law.

Alexander Lazović: You mentioned Afghanistan a couple of times, and obviously also when we talk about the accession of Poland and Hungary to the European Union, they happened in the early 2000s at the height of the laundry list approaches. Before we turn to the rule of law crises worldwide, where do you think the dominance of the laundry list approaches came from in the 1990s and 2000s? You already mentioned the end of the cold war. Is it just that, or is there something else that is really appealing about these laundry list approaches for policy makers?

Martin Krygier: This may sound flippant, but I think there is something in it: there is the expression “to a man with a hammer everything looks like a nail.” To a lawyer, a legal problem is a problem to be solved directly by legal means. If you start with the problem, unless it is very simple, you don’t know what you will need for the solutions. But if you start with the list, that’s what you have. You say: “What can I do with this law, or with this form, etc.” I’m struck again and again by the kind of intellectual insularity of lawyers who talk about the rule of law. You’re talking about something which you hope will have some effect on the exercise of power in the society – certainly people in countries without the rule of law hope so. That means it will constrain politicians. It also should mean, I believe, that it will constrain big power which is not necessarily political power but corporate power etc. These aren’t easy things to do. So, how can you imagine that what matters is the form of the law or what happens to somebody when they go before a court? Most people don’t go before courts. I think this insularity is problematic but hugely common. And perhaps especially among lawyers because that’s what they do. But what they do is terribly important, particularly when people want to shut them out. 

Also, I think that I shouldn’t be so critical. If you’re a lawyer, dealing with law is what you know. We are dealing with some huge issues – America was not a peanut country, it spent 20 years in Afghanistan, and what they got out of it is failure. Failure, disaster, and the accumulated wreckage of people’s lives. They tried to make something else. 

These things are hard, and also a lot of things take a lot of time, and we don’t have time. 20 years to transform a country is not a long time, but it’s a long time to have a war. 

So, I wouldn’t be too blame-assigning because I don’t have answers, just questions. But I think that if you identify something as a legal problem, lawyers will think it needs to have a legal solution. Law is important maybe, and so is the absence of well-constructed law, and the destruction of a constitutional court, particularly if this is part of a larger project that is destroying independent media and so on. That is a huge warning sign and a danger. But having a good constitutional court is maybe only a tiny part of the solution, and it may not even be part of the solution.

Alexander Lazović: Before we come to the end, I’d like to talk a bit more about the relationship between the laundry list and the rule of law crisis worldwide. The rule of law crisis is not just something in the “obvious candidate countries” in Asia, and in Central and Eastern Europe, but we also have rhetorical attacks on courts in Western Europe, we have attacks on the Supreme Court in the United States, not just from the right but also from the left, and there is rule of law regression in South America. Is there a connection between these tendencies worldwide? Has the rule of law lost its appeal? And if this is so, does this concern the laundry list approaches and the failure to use these approaches to implement the rule of law in new countries? Is there a larger connection at work here?

Martin Krygier: I think there are large connections, but I am not sure they are those connections. I mean, if we weren’t lawyers we might be concerned with the declining faith in democracy, we might be concerned with the inability of states to manage in important things like pandemics, or financial crises. We might be concerned with growing inequality in various places. Now, these sort of volcanoes bubbling away have effects in many fields of life. For all my rather moderate critique of laundry lists as places to start, I don’t think they have that power. I think they are a symptom. It was easier to live in traditional societies where God handled the big things, and we just expected everything in the world to keep going on as it did. We didn’t think we could change much. And we were proved right – nothing much changed. Now, in modernity we have this huge imaginative ambition that there is so much that we could do if we got it right. A book of Kafka’s lost essays, as they’re called, has come out recently in English translation. There is one three page story which begins with children watching their father – a big man with a sharp knife – trying to slice a loaf of bread. And he fails. The whole story is about that. He can’t do it. And he looks at his children and he says: “Why are you so surprised? You should be more surprised if I were to succeed than if I failed because most things fail.” That’s pessimistic –  Kafka was not full of laughs – well he was full of laughs, but they were pessimistic laughs. So, I don’t think that the fact that people who talk about the rule of law or promote the rule of law don’t succeed – and they don’t usually – is the cause for this widespread dissatisfaction with existing liberal democratic polities and orders. I think that is a huge, huge problem the world is facing. 

The rule of law was such a success story in the 1990s, or it seemed to be, because it was part of this package which seemed a success. Now, if we have doubts about the rule of law, partly it is because we have doubts about the package. We have doubts internally because, even in countries like Poland where the economy was very effective, inequality was very high. 

We have doubts because in America similar stories could be told. Many of these doubts don’t have legal origins, but they will affect our attitude to the great exemplars of our modern civilization. And that’s not even to mention the argument of Stephen Holmes and Ivan Krastev that we had a huge imitative enthusiasm at the beginning of the 1990s. It wasn’t just outsiders imposing it, it was insiders: “We want to be like the ‘normal countries’.” That was harder to do, and in the meantime the ‘normal countries’ looked less and less attractive. They had problems that they didn’t expect, and they didn’t know how to solve. So, I don’t think that the loss of faith in law is all law’s fault. I think lawyers think, for good or bad, that law has more to do with it than it often does.

Alexander Lazović: That is some positive and good news for our lawyer listeners. You mentioned also that you have just finished editing a new book called “Anti-Constitutional Populism” with Cambridge University Press. Could you maybe give us a quick preview of what we can expect in that collection?

Martin Krygier: I’m actually a co-editor, again within the “three musketeers.” So there is Adam Czarnota, Wojciech Sadurski, and myself. “Anti-Constitutional Populism” is a somewhat unusual term, as the more common term is Constitutional Populism. We know why, as we’ve talked about earlier this evening – one of the striking features of modern populists is the amount of attention they give to using and abusing law. There is an argument as to whether populism is necessarily anti-constitutional. This book is only about regimes, it is not about populists in France for example. It’s about populists in power. And most of the contemporary populists in power are anti-constitutional in the ways we talk about it. They take over institutions, deinstitutionalize them, hollow them out, instrumentalize them, abuse them, but they do it in ostensibly legally justifiable terms. And so, the edited book with fifteen contributions tries to analyze this characteristic. First of all, it acknowledges that there is an argument that not every false form of populism is anti-constitutional. I know you had Bojan Bugarič on one of your podcasts, who is a contributor to this book. And his argument, as you also know, is that populism is given a bad name. There are good populist and bad populists. We’re focusing on bad populism. But we try to survey a range of options, both of kinds of populism, but also countries and regions. So, we have pieces on South Africa, on several Latin American countries, particular Venezuela and Brazil, on the Philippines, and, because it’s closest to our knowledge, on post-communist Europe, particularly Hungary and Poland. We focus in a separate section on anti-constitutional populists and courts. Again, here we have articles on Brazil and on Venezuela and on Poland and on Hungary. We have a third section, which looks at post-post-communist populism, so populism particularly in Eastern and Central Europe, and more specifically still in Hungary and Poland. And then we have another section on EU responses to this. So that is substantively what it’s about. But its general theme is to try to capture the character, the varieties, the significance, and to some extent, the responses to populism of this sort and the anti-constitutional aspect of populism. 

This transcript has been edited for length and clarity.

In collaboration with Oliver Garner.

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