Castan Centre for Human Rights Law

"Transitional Questions about the Rule of Law:
why, what, and how?"

Martin Krygier

Among the political ideals that surfaced to greet and assist in the collapse of communism, the rule of law or some close relative - for example law-governed state, state-of-law, Rechtsstaat - was extremely prominent. Its appeal and some of what was imagined to be its content came pre-eminently from its alleged contrast with communist practices, which were familiar and believed systematically to violate it. If pressed for more positive accounts, partisans of the rule of law could always point to the 'normal' countries of the West which were believed to have it, as well as many other good things denied by communism. Details were rarely spelt out, because it was the starkness of the contrast, rather than its particular elements or conditions, that was the preoccupation of the time.
Lack of precision didn't matter much then. Until the collapse, there was little that partisans of the rule of law could do, and in any event they were right about the main issues: whatever the rule of law precisely is, and whatever its conditions might be, it wasn't the way power was exercised under communism, and you can find it in some normal countries. Moreover these insights, vague as they were, were real and important. They were examples of that understanding which stems from experience of the absence of something precious, an understanding often denied to those able to take it for granted.2
But that was then and this is now. In the mix of uncertainty, change and transformative ambition that has marked the time between then and now, it has become necessary to move beyond negative exemplification or abstract idealism. How that might best be done is an important question. I will not answer it in any detail, however, but rather approach it through a further series of questions which bear on it and, at best, might clear some ground for answers. That is not simply a matter of diffidence or ignorance, though doubtless they play their part. Nevertheless, even if I were confident that I knew lots, I would favour starting this way.
For its partisans often thought of the rule of law as an evident answer to a pressing question: how to tame despotism. It was not obvious then, and it is not obvious to everyone now, that it raises as many questions as it answers. My suggestion is that we begin by clarifying some of these questions, rather than, as is more common, assume that we have, in some ready-made package of institutions or practices, their answer. My reason is simple. The questions come first. If they are not the right questions, then answers, however clever or modish or Western or apparently natural, are pointless.
Looking at the mixed success of attempts to implant the rule of law in unfamiliar soil, for example, it might be clear that we have not always done well, but it won't always be clear why. Does the source of disappointment lie with the ways we have answered the problems we faced, or perhaps the ways we framed and thought about those problems to begin with? It is the answers we have arrived at which are most evident and often take the blame. My bias, by contrast, is to go for the questions and how we think about them. For they are easily submerged by answers, among them particular institutional answers, that for one reason or another have become modish or standard, hallowed by tradition or 'international best practice' or whatever else, notwithstanding that people have long forgotten, or never known, why. Yet it is old wisdom that if you ask a silly question, you are likely to get a silly answer. A fortiori, if you don't know what question you are asking.
Gertrude Stein said as much, you will recall, in her famous deathbed reflection, 'What is the answer? ... In that case, what is the question?' I propose to treat Gertrude, for the purposes of this essay, as the Philosopher's Stein, and concern myself with clarifying some questions about the rule of law and how to think well about them. Only secondarily will I venture answers to them.
At a minimum, anyone seeking to gain bearings on the rule of law after communism should ponder the following three questions. First, and before getting to details as lawyers too often and too quickly do, we should ask, why bother with the rule of law, what's the point? Then, and of course, what is it, beyond what it isn't? Third, if you want it, how do you get it?
My questions are general, but the 'transitional' contexts in which they are now most urgently posed are particular: not any time, anywhere; but now, in the context of post-dictatorial attempts to develop the rule of law, often from nothing but painful familiarity with its lack. One further over-arching question is what difference that context makes. That question is the subject of the last part of this essay. My answer, and much of the point of this essay, is roughly: much but not so much.
Much thought (and both solicited and unsolicited advice) about the conditions and sources of legaity in societies which have lacked it, ignores the distinctive character and specific imperatives of end-of-century transformations. Often it has issued in uncontextualized, and unsuccessful, offerings and borrowings. Recently, on the other hand, some writers have emphasized the distinctiveness of such transformations, insisting that post-authoritarian 'transitions to democracy and the rule of law' are sui generis. I am unconvinced that either of these options is the right one to choose in thinking about the rule of law in 'transitional' (or, for that matter, in 'normal') circumstances. I will argue, with the aid of no less an expert on transitions than St Thomas Aquinas, that in this, as in many other contexts, we should resist pressure to choose between universal and particular. Rather we should ask how best they might be combined, to relieve both the abstraction that commonly goes with the former and the solipsistic idiosyncracy that can flow from excessive devotion to the latter. That way we might at the same time learn something about the rule of law in 'transitional' contexts and in our own.
1 Why?
I put teleology before ontology, the point before the practice, rather than begin, as lawyers are wont to do, with institutional particulars. This notwithstanding, or rather in part because, A.V.Dicey, the author of the most celebrated English account of the rule of law in the last century, begins exactly in the opposite way.3 Dicey takes his characterization of a success story - in his case, the institutional components of the English rule of law - to be the one and only way to the rule of law. He comes to mix real wisdom about the point and value of the rule of law with a parochial institutional explanation of how England comes to have it. Following that route one is too easily liable, as he was, to mistake particular institutions and practices (and the mythologies which attend them), which may well have instantiated the rule of law somewhere, for its necessary substance anywhere. One comes adrift, however, as soon as one has to ponder different histories, institutions, circumstances. That is how Dicey came to inculcate generations of British lawyers with the wisdom that the rule of law pur sang stopped on the English side of the Channel, though it had crossed the Atlantic and Pacific without apparent difficulty. Start with the point and you can appraise the practices. Know only the practices, and you are likely to miss the point.
Another reason to start with the end, as it were, is that legal institutions are not merely used for different ends, but they are shaped by the ends for which they are used. Law is often characterised in general terms, eg, the command of a sovereign or a vehicle of ruling ideology, as though it were a kind of tool or implement, whose character remained indifferent to whatever purpose it was directed to. Like a hammer or chisel: hit a wall or a head, the implement is unaffected. However with regard to law that is a deep mistake, which the Soviet jurist, Evgenii Pashukanis,4 was one of the first to note and which a number of more recent writers5 have sought to expose and avoid. Pashukanis pointed out that the form and character of law6 differ systematically with what is asked of it, in ways whose significance is hidden by our common tendency to describe as law every form of governmental regulation.
Legal orders whose aim is repression, or managerial direction, or social transformation, for example, will embody - not simply serve but literally embody - different views of the nature and proper relationships between lawgiver and subject, both from each other and most of all from one which has as a central purpose to guard individual interests and facilitate co-operative interactions among citizens. Moreover, not only are the ends very different, but the character of the legal means will also differ systematically. For particular forms of law are more congenial to some purposes than to others. Laws intended to achieve centrally-determined repressive or bureaucratic or transformative objectives, for example, will follow different logics and embody systematically different characteristics from laws intended to aid individuals to choose, plan, co-operate, and stay out of gaol. The nature and identities of principals and agents will be differently understood and located, the degrees of official discretion allowed, publicity required, flexibility thought warranted, formality insisted upon, all will be affected by the often unarticulated but presupposed point of the law.
Of course, there is no unique, uncontroversial, point to the rule of law, still less to law in general. In any of the many accounts of the rule of law, its meaning is contested, and so too its point(s). Moreover, even without the controversy which typically attends the concept, it represents a cluster of values, not just one, and they can conflict. And, conflicts aside, the purposes of the rule of law can be understood at different levels of abstraction. Some (say, clarity and publicity of the law) are the direct aim of many rule of law measures, and some (say, the ability of individuals to rely on the law) in turn explain the importance of those. In all of its versions, however, the idea is present that law can and should contribute in salutary, some say indispensable, ways to channelling and constraining - rather than merely serving - the exercise of power, particularly public (though not only political) power. And the reason this is considered important, the particular evil which the rule of law is supposed to curb, is the consequences of arbitrariness in the exercise of power.
Note already that the focus is on the character of the exercise of power, not on the existence of power per se. Anarchists apart, most thinkers about politics don't imagine that power can be eliminated from human affairs, and many thinkers believe it deeply misguided to try. Apart from being hard to get rid of, power properly limited, channelled, yet also (and in part therefore) legally enabled,7 is indispensable for most publicly underwritten social goods. The aim of the rule of law is not, then, to eliminate the exercise of power but to restrain the possibility of its abuse or arbitrary use.
Many institutional devices have been considered to contribute to this end, and the Federalist Papers are a sustained meditation on its requirements. Such devices include written constitutions, institutional separation of powers, oversight of major branches of power by other branches of power ('checks and balances' or what O'Donnell calls 'horizontal accountability'8), and many other things. Underlying them all is the assumption that in the society in question the rule of law prevails. That assumption, or at least that aspiration, is much older than these particular devices and is the foundation of them all. It may well be that these particular legal institutions and strategies strengthen the rule of law, but they also depend upon it, since it is only when the rule of law is pervasively significant in a polity that the legal allocation of powers in these various ways is reliable.
The rule of law is supposed to lessen arbitrariness by constraining all actors when they act within clear legal limits which they and others can know in common. It does its work, as I have written elsewhere, 'when the law in general does not take you by surprise or keep you guessing, when it is accessible to you as is the thought that you might use it, when legal institutions are relatively independent of other significant social actors but not of legal doctrine, and when the powerful forces in society, including the government, are required to act, and come in significant measure to think, within the law; when the limits of what we imagine our options to be are set in significant part by the law and where these limits are widely taken seriously - when the law has integrity and it matters what the law allows and what it forbids.'9
The value of these achievements is not uncontentious. On the contrary, the rule of law, precisely because it impedes many aims more freely pursued without constraint, is often unpopular. Moreover, the ideal is not without its own inner tensions. Still, the benefits said to flow from legal restraint on arbitrariness are large. The first, probably most familiar, and most emphasized by critics of communism, is (relative) deliverance from fear. According to Hobbes, concentrated, sovereign, power is necessary to deliver us from the terrors that would engulf us were power left to do what comes naturally. According to Locke, this just moves the problem one stage further: the sovereign must in turn be constrained.10 Central to that enterprise is not just any sort of law, but the rule of law. Locke did not use the phrase, but he was committed to the idea. As he explained:
Absolute Arbitrary Power, or Governing without settled standing Laws, can neither of them consist with the ends of Society and Government, which Men would not quit the freedom of the state of Nature for, and tie themselves up under, were it not to preserve their Lives, Liberties and Fortunes; and by stated Rules of Right and Property to secure their Peace and Quiet. ... And therefore whatever Form the Common-wealth is under, the Ruling Power ought to govern by declared and received Laws, and not by extemporary Dictates and undetermined Resolutions ... For all the power the Government has, being only for the good of the Society, as it ought not to be Arbitrary and at Pleasure, so it ought to be exercised by established and promulgated Laws: that both the People may know their Duty, and be safe and secure within the limits of the Law, and the Rulers too kept within their due bounds ..."11
Communist rulers, prominent among others, saw no reason why they should be 'kept within their due bounds' and thus one of the major declared ambitions of post-communist law reformers has been to require that they be so kept.
A second, less obvious, ground for supporting the rule of law lays emphasis more on what it facilitates than what it rules out. It is particularly salient in large, modern, societies where possibilities would be endless, and with them so too confusion and disorientation, if we did not try to limit them and fix on some of them in advance. A way to do so is to ensure that the laws that rule are readily accessible and knowable, and can be relied upon to be exercised and enforced according to non-arbitrary interpretations of their terms. This aids us, not merely in knowing what governments are likely to do next, but even more important, what fellow citizens are likely to do and to expect us to do. Rules of the road might serve, both literally and metaphorically, as examples.
Where the rule of law is strong, confident interaction and co-ordination among non-intimates are possible. These are crucial conditions for a large modern society in good shape. The rule of law can provide fellow citizens with crucial information and security, 'a basis for legitimate expectations',12 by enabling them to know a good deal about each other, though many of them are strangers; to co-ordinate their actions with them; and to feel some security and predictability in their dealings with them. For though it does not make everything predictable, it ties down much that would otherwise be up for grabs. It establishes fixed and knowable points in the landscape, on the basis of which the strangers who routinely interact in modern societies can do so with some security, autonomy, and ability to choose. And so it provides a foundation and scaffolding for the building of 'civil' relations between state and citizens and among citizens themselves. They can rely upon the state, the law, and each other, not merely live at suspicious or fearful distance from them.
Some authors see a third benefit that the rule of law offers. Not merely valuable as a constraint, it is a way of realizing certain values, among them 'respect for the dignity, integrity, and moral equality of persons and groups. Thus understood, the rule of law enlarges horizons even as it conveys a message of restraint.'13 The connections between the rule of law and the realization of these larger values is contested, with many writers contending that they are contingent at best. I think they are several and intimate.
There is, at the very least, a sociological, if not a logical, connection. A government which seeks to treat its citizens as mere means or in a substantially discriminatory way is very likely, for reasons that will appear, to violate the rule of law. Despots often despise their subjects and they also typically despise the rule of law. They prefer either, as Lenin was candid in explaining, 'rule that is unrestricted by any laws',14 or law that is, as purely as it can be made, the instrument of their will. Rarely will such a government have reason to comply with the rule of law, except as camouflage. The rule of law conspires to bring exercises of power into the light, and it gets in the way. Since despots prefer the dark and don't like anything to get in the way, doing so is a central part of the point of the rule of law.
But since so much depends on the rule of law, getting in the way is not its only point. It gets in the way of arbitrary power, not of power well exercised. Indeed it can be a central ingredient of the legitimate and fruitful exercise of power, by generating what Stark and Bruszt in another context call 'enabling constraints'.15 Citizens not fearful or confused, able to co-operate with each other, furnished with clear signs of the limits on the actions of themselves and others by government agencies knowing and respecting their roles and limits, are well placed to contribute to a well-functioning 'civil society'. As anti-communist dissidents well knew, that is a good sort of society to have.
This suggests that the connection between the rule of law and the morality of law is not merely sociological but more immediate still. For, as a number of authors have remarked, 16 the rule of law's guarantee that citizens will be penalized only on the basis of laws knowable when they act, is a condition of the state's treating people with respect, as the subjects of laws rather than their objects, as responsible agents whose interests and projects the law should serve and facilitate, rather than things, beasts or children which the law can freely mould, direct and control.
These benefits are inherent in even the narrowest, most procedural, versions of the rule of law, but in recent years there has been a tendency to amplify the substantive content of the rule of law as well, both among theorists and in the decisions of certain European legal bodies, particularly French and German and now more generally within western Europe, affirming 'material' and not just 'formal' elements in the rule of law. For Ronald Dworkin, the rule of law 'is the ideal of rule by an accurate public conception of individual rights'.17 That will often involve formal regularity, but not only and not always. For Philip Selznick, the constraints emphasized in the formal conception are precious and need to be respected for what they secure. Yet the weight given to formality in the rule of law might generate vices of its own - particularly blindness to particularity - that subvert the doing of justice that the rule of law might otherwise be thought to support.
Even apart from the high price of exaggerated 'legalism', legal orders are not always or only threatened by unrestrained power. There are other sources of arbitrariness in social life. Among them can be a Procrustean refusal to take account of particulars to which general rules are being applied, or a dogged insistence, whatever the circumstances of the case, on inflexible or insensitive adherence to such rules. Moreover, in well-established legal orders, with strong rule-of-law institutions, traditions, and legal expectations, there might well be room to vindicate larger values carried within the principles, traditions and purposes of law, in the service of a 'higher instrumentalism' which is not limited to, but need not necessarily subvert, a legal order whose injunctions overall are clear, predictable and obeyed. On this view, which I share, 'we should not reduce the rule of law to its most rudimentary forms.'18
On this view, formal regularity should be an important component, but not the limit of one's ambitions for the rule of law. Legal orders typically embody and generate certain values, both in their animating principles and in the complaints they provoke when their practices flout the values that give them legitimacy. These include values such as those of procedural fairness or due process, and in particular legal traditions much more. The rule of law might well be argued to be incomplete to the extent that those values are not honoured. Attempts to vindicate such values, often implicit in legal principles and traditions if not rules, might be considered a service to the rule of law, even if it goes beyond purely procedural fairness and notwithstanding that it might fall short of justice more globally conceived.

2 What?
What must the rule of law consist of, to do any or all of this? Clearly, the mere existence of laws, or their use by governments, will not do. That is common enough, and commonly enough used for precisely the sorts of ends the rule of law is supposed to combat. Despots, after all, have laws too, and at times they make heavy, and not good, use of them.19
Nor, by contrast, is the rule of law the same as the rule of good laws, though that is a nice thing to have. Whatever Marshall McLuhan might say, the medium is not the message, or at any rate not the whole of it, and the relationship between them is neither direct nor simple. Although the rule of law makes certain evils harder to accomplish, is good in itself and on Selznick's understanding reaches toward a range of substantive goods, it doesn't guarantee all the goods we want, not even those we might want delivered through law. Many sorts of bad law are incompatible with the rule of law, but some still are compatible with it. Moreover, there are aims that might be good in themselves, which the rule of law might subvert or at least make difficult to attain. Arguably and generally, then, the rule of law contributes to the rule of good laws but they are not the same.
Accounts of the rule of law abound. I would stress four elements, not to characterize it exhaustively, but at least to underscore some essential conditions. The first three are quite conventional in lawyers' and philosophers' discussions; the fourth, though I consider it fundamental, is less so.20 Whether it is rightly thought of as an element of the rule of law itself or a condition of its effectiveness, I will leave for philosophers to decide. I simply want to emphasize its indispensability. The elements are, first, the scope of laws, second, their character, third, the integrity of legal institutions, and fourth, the social embeddedness and significance of the law. I will take these elements in turn.
Scope of the law is key. It is what is referred to in the phrase equality before the law. There should be no privileged groups or institutions exempt from the scope of the law. This encompasses political actors, in that governments and public officials are subject to the existing law. Any notion of a Party or Person above the law, as enshrined in many communist constitutions and other Caesaro-Papist theologies, is inconsistent with the rule of law. To make this subjection effective, there must exist legal ways of challenging and forcing the government and political officials, even the very highest, to submit to the law.
There is also, of course, a crucial social dimension to scope. All citizens must be subject to the law. This cannot involve exact equal treatment of all by law, since the law commonly employs categories which apply to some and not others, particularly in highly and specifically regulated societies. However, there is never an excuse for exempting any citizens from rigours that the law would apply to any others were they similarly situated.
There have been many polities where the ideal of subjecting governments or notables to law was unknown and would seem outlandish. Even where the idea exists, the extent to which it is realised by a legal order will vary markedly between polities and over time. To the extent that the idea and the practice are lacking, however, so is a crucial element of the rule of law. As Guillermo O'Donnell puts it,
if the legal system is supposed to texture, stabilize, and order manifold social relations, then not only when state agents but also when private actors violate the law with impunity, the rule of law is at best truncated. Whether state agents perpetrate unlawful acts on their own or de facto license private actors to do so, does not make much difference, either for the victims of such actions or for the (in)effectiveness of the rule of law.21
Secondly, the character of law is crucial. This can be expressed with minimalist and deceptive simplicity: 'the law should be such that people will be able to be guided by it'.22 Reflection on that apparent truism can generate tomes. It has certainly generated lists. For law to guide behaviour, it must exist, that is, take the form of general requirements, typically rules, that people can consult before they act. Even where it exists, it will not guide behaviour unless its requirements can be known. Therefore it must be public, understandable (by someone - it might take a lawyer) and relatively clear and determinate in its requirements. These requirements must be possible to perform. So the law cannot be internally contradictory (more accurately, the legal order must provide ways to resolve contradictions which inevitably occur). It must be prospective, for if it is retrospective not only will people not know it but they will not be able to rely on what they do know for fear of it being retrospectively changed. It must be relatively stable, for if it were constantly to change people would be reluctant to trust any present incarnation. Exercises of public power made unannounced, or announced in peremptory or arbitrary decrees, retrospective in effect, in ignorance or in violation of existing law, defy the rule of law. 23
Obviously, this is a counsel of perfection, never fully attained. Less obviously there are many circumstances where one or other of these standards are deliberately violated in a healthy rule-of-law order for good reasons, either to correct failures on other dimensions or to serve other values, such as sensitivity to particulars or flexibility or even to enhance the overall morality of the law. In such circumstances, and they are scarcely rare, trade-offs have to be contemplated.24 Such trades should be examined carefully, but they cannot be rejected out of hand, since there is never just one thing we need from law. A legal order and even an individual law can be clear enough, accessible enough, stable enough etc., without all its laws being perfectly clear or perfectly accessible or stable.
Again, the point of these standards needs to be kept in mind, not merely the standards themselves. If we do so, we can see, as Lon Fuller stresses, that these standards are not each to be treated as separate and inviolate. Rather,
[they] do not lend themselves to anything like separate and categorical statement. All of them are means toward a single end, and under varying circumstances the optimum marshalling of these means may change. Thus an inadvertent departure from one desideratum may require a compensating departure from another; this is the case where a failure to give adequate publicity to a new requirement of form may demand for its cure a retrospective statute. At other times, a neglect of one desideratum may throw an added burden on another; thus, where laws change frequently, the requirement of publicity becomes increasingly stringent. In other words, under varying circumstances the elements of legality must be combined and recombined in accordance with something like an economic calculation that will suit them to the instant case.25
This last point is rarely made, but it is crucial to make. Instituting the rule of law requires judgment with an eye to its purposes. It is not the mechanical application of an imported and inviolable set of rules. This is so generally and, as we shall see, it is particularly relevant to current discussions of the rule of law in times and places of 'transition'. However, that is not to say that anything goes. A legal order that fails completely according to any of these standards is not delivering the rule of law, for some approximation to them is necessary for people to be able to 'be guided by' the law. And that is part of the point of the rule of law. The real interest, as with most else, lies in the space between total perfection and total failure. In that space we are better off thinking about how a particular configuration of law serves our purposes than either insisting dogmatically on strict adherence to each of these formal standards of legality or abandoning them in the face of novel and pressing problems.
Of course, whatever the character of the laws, the rule of law will amount to little unless the institutions charged with administering the law take it seriously and enforce it fairly. So the law must effectively bind and nourish the thought and action of those who apply it. To make this happen the third element of the rule of law is essential: the law must be treated as authoritative - both in their own actions and by those whose acts they judge, police, regulate, etc. - at least by the legal institutions that administer it and it must be administered in ways that conform to its publicly announced terms.
To ensure these elements of the rule of law is a substantial task of institutional design and refinement, at which generations have laboured. They have not managed to produce recipes easy to emulate whatever the circumstances and whatever the ingredients, if only because many ingredients do not grow everywhere and not all grafts take, but they have provided insights. Among them that power should balance power, that no one should judge in their own cause, that litigants should have a fair hearing and an opportunity to state their own case and rebut that of opponents, that adjudicators should be independent of political officials or other power-holders, that decisions should be grounded and publicly justified within plausible and defensible interpretations of existing and available laws. Over the past two centuries a written constitution has been added to the mix, sometimes with sometimes without a Bill of Rights. This innovation contributes to the rule of law when it acts as as a legally overarching frame and limit of legitimate political action. The details can be multiplied, but it is better not to amass them aimlessly, as though these means rather than the values that inspire them were the point. Rather it is preferable to think to them in particular contexts, from the idea of the rule of law and of the values it is thought to serve, together with close but not slavish attention to stories of institutional success and failure.
One could imagine a society where all these elements of the rule of law existed, and yet no one would say that the law ruled. The law applied to everyone, it was easily ascertained, and fairly administered, and yet it didn't count for much. I doubt that we would call this a state under the rule of law. The law must, and must be widely expected and assumed to, be appropriate and to matter, to count, in the exercise of social power, both by those who exercise it (which should be far more than just officials) and by those on whom it is exercised. And so the conditions that allow the rule of law to matter need to be attended to, but among writers on the rule of law they rarely are. The rule of law must be effective, and that is a rather more complicated matter than merely finding the above three elements in the law.
When dissidents talked in vague terms of the need for the rule of law, or a law-governed state, they often got closer to its core than do the pedantic discussions of lawyers. For what mattered to them was not the detailed form of statutes, the technical character of formal rules - from which no real-world consequences need flow - but rather something much broader, whose sources are much harder to identify and understand but whose presence or absence is often palpable.26 What mattered was that law should count, particularly as a constraint on and an ingredient in the exercise of power and as a source of social guidance. Many other things, of course, do count in every regime, from the most law-abiding democracy to the legally most unbridled despotism, but in a rule of law state the law counts, and in a state where the rule of law is strong it counts substantially.
What does it mean for law to count in a society, in such a way that we feel confident saying that the rule of law exists there? A difficulty we have is that most people are unconfident - because inexpert - to say much about law, while the experts, lawyers who can in part guide us on the first three elements, are often confident but incompetent on this question. For there are many questions about law too serious to be left to lawyers, who are typically specialists merely in law. This is one. It asks about the social reach and weight of law, and the answers, whatever they are, will have to attend to questions of sociology and politics, as much as of law. Indeed social and political questions are central ones to ask about the place of law in a society, and they will be answered differently in different societies, whatever the written laws say or have in common. This is not because the law has no significance, but because the nature and extent of that significance is outside the lawyer's special expertise.
Lawyers are rarely especially skilled to answer such questions. On the contrary. What Stephen Holmes has observed of Russia can be generalized in principle, though not every country in the region faces problems of the same magnitude. Particularly when our question is asked by someone concerned with how law might to be encouraged to count, we should keep in mind that:
Lawyers are trained to solve routine problems within routine procedures. They are not trained to reflect creatively on the emergence and stabilization of the complex institutions that lawyering silently presupposes. Ordinary legal training, therefore, is not adequate to the extraordinary problems faced by the manager of a legal-development project in Russia. The problem is not Russian uniqueness and exceptionalism, but the opposite. In Russia, as everywhere else, legal reform cannot succeed without attention to social context, local infrastructure, professional skills, logistic capacities, and political support. .... So legal knowledge alone is never enough.27
Where the law really does count, we can foreshorten the question why, as lawyers commonly do, and answer it in terms of the provisions and institutions of the law. For when the law is socially and politically significant, the legal position will bear closely on the factual position and the hour of the lawyer is at hand. But that is only because what lawyers don't know, the conditions of legal effectiveness, gives significance to what they do, the law. When those conditions are lacking, lawyers' talk is not only often boring, as it can be at the best of times, but beside the point. For if no one is listening it doesn't matter too much what the law is saying.
What it means for the law to count is actually a complex question, perhaps better rendered as: in what ways might law count? I list below four such ways. The first two are what might be called negative indicators, necessary but on their own insufficient. Their absence will signal the absence of the rule of law, though their presence will not guarantee its presence. The third and fourth are more positively tied to the rule of law.
One way is that citizens relatively generally obey the law and expect their fellows to do so. Obedience to law varies within and between societies, and in the same societies over time. In principle these variations can be compared empirically. At the extreme they are virtually palpable. If no one obeys the law, however conscientiously it is made and applied, it is hard to say law rules. If the legality of an act is treated as a matter of general indifference, if the legal doesn't so much frame the possible as present a minor obstacle which solid citizens will learn to 'live around' in Jane Curry's evocative phrase, if no one feels worried or guilty about acting na lewo, likewise.28 So, relatively widespread obedience is a condition of law counting. Still, widespread obedience, though perhaps necessary, is a weak indicator of the rule of law. People might obey a tyrant, either because of fear or faith. Either way tyranny has always, and rightly, been seen as the antithesis of the rule of law.
Another indicator has to do with reasons for obedience: to the extent that obedience is prevalent, is this primarily because citizens fear legal sanctions, as one may obey a hated occupying force or despot, or because the legal order, even if not a particular law, is considered legitimate? If fear is primary, it will not necessarily be accompanied by concern that others obey, unless for reasons of envy or a sense of unfair distribution of burdens. If legitimacy is in play, then the law is likely to be more solidly embedded, and disobedience will be met not merely with resentment but moral censure. Legitimacy is not always a conscious reflective matter, indeed it might be strongest when people give it least conscious heed and merely act in ways that manifest it. It too varies within and across societies in ways that can be observed. Certainly illegitimacy can be observed at critical moments. Again, illegitimacy is a better indicator of the absence of the rule of law than legitimacy is of its presence. If no one regards the law as legitimate, the rule of law faces huge difficulties. Even if, on H.L.A. Hart's account,29 it is enough for a legal system to exist that only officials regard its 'rule of recognition' as legitimate (and citizens merely obey 'for [their] part only'), the rule of law is unlikely to be well established. If 'living around the law' is normal and expected, if citizens simply don't treat the law as a likely or important indicator of what they or others should take into account, morally or pragmatically, the foundations of the rule of law are at best insecure. On the other hand, the laws of charismatic leaders such as Hitler are often regarded as legitimate by their enthusiastic followers, but that does nothing to show that the rule of law is well established or that the law really counts in the sense I am seeking. So although widespread legitimacy is a source of strength of the rule of law, it is not unequivocal evidence that it exists.
A third, and stronger, indicator of whether law counts is the extent to which it counts among the people who count. These are the people or institutions which wield effective power, whether political, economic, social, religious. Does the government typically operate within the law? Does it regard itself as constrained to do so? Do powerful corporations? These are never all or nothing matters, but in Russia, say, the answer to the first two questions has long been closer to 'no' than 'yes', and today that is true of the third question as well. That is not true, and certainly not equally true, everywhere. Nor is it an expectation everywhere.
Fourthly, obedience, however motivated, is not enough. Or at least it is not enough for law to count in a way a devotee of the rule of law would applaud. A despot can exact obedience, and law can be useful in communicating and enforcing what is to be obeyed. But for liberals and democrats, law should not merely serve the purposes of rulers but also those of citizens, as a protective and facilitative device available to them in their relations both with the state and with each other. Apart from obedience to law, then, the use and manner of use of law is crucial too.
This matters at both the political and the social level. At the level of politics, some governments do terrible things, made more terrible because there is no legal basis for what they do and no possibility of legal recourse against them. Not only are they not under the law, but they fail to act through or by law, except when it suits them. Lukashenka's Byelorussia is an example, and so were Meciar's Slovakia and Miloševic's Serbia. They often and freely exercise power in violation or in the absence of law, in secret, or merely clothed with legal camouflage. For the rule of law to bite, governments must be constrained to act through laws of the sort outlined above.
With governments, which make and enforce law, mere use of law is not enough, however. Manner of use is key as well. Many governments treat law as just one among their armoury of tools, to be used when more convenient than other tools. That affects their aims, the character of laws themselves, and the expectations of those subject to them. The laws are not seen as guidelines and facilities, to be regarded and drawn upon by citizens in their self-chosen activities, but as commands to be obeyed in furtherance of the governors' own purposes. They will be as clear, public, prospective, etc., - or otherwise - as it is useful to the government for them to be. It is only when governments are required typically to act within the framework of the rule of law that their use of law will be evidence of 'legality' rather than mere 'legal instrumentalism'.
At the social level, too, use and manner of use are central, though there is almost nothing written about them in the literature of jurisprudence. Yet the social 'take-up' of law is central to the specific contribution of the rule of law to social well-being. Repressive, arbitrary, purely instrumental law is a predominantly state-centred matter, but the rule of law is something quite else. What is important here is that law come to have significance not simply - to borrow Habermas's distinction - as a political or economic 'steering medium' of overarching systems of power and money, but as an institution of the everyday life world itself, available to citizens as a resource and protection in their relations with the state and with each other.30 That is what happens when the rule of law is a living presence in society, part of the cultural understandings of everyday life, part of the frame which bounds what is doable and even thinkable. I am conscious that this is an idealization of virtually any legal order, but it is one approached more closely by some than others. And it will not happen quickly or easily where it has not happened before.31
Not merely submission to law, then, and not merely a supply of legal institutions, but demand for and unreflective use of their services matters. The extent to which citizens are able and willing to use and to rely upon legal institutions to protect and advance their interests varies, again within and between societies and over time. In many times and places, citizens (or better perhaps subjects) are willing to use the law but excluded from access to it. In others, including contemporary Russia, it appears that they are unwilling to make much use even of laws they could use. 32 In yet others, like the United States, many citizens, perhaps too many, are both willing and able. We know a bit about how to affect the supply of law, but we know a good deal less than we might about how to affect demand for it.
In asking whether law counts in a socio-political order, then, I am referring in shorthand to a complex in which law makes a difference in all of the above ways. There might also be others. For the moment, I would say that where the legal order has the elements of the rule of law I have outlined and counts substantially in these ways, the rule of law is strong. Where it counts for little in any of them, the rule of law is, to that extent, weak.
Of course judgments are likely often to be difficult and at times quite controversial. In no regime or society does the law count for everything. It couldn't, nor would we want it to. That would be a despotic dystopia. Other normative influences count and should count in our lives, with law often just one and not the most important one among them.33 That is true even when a 'culture of lawfulness'34 is widespread and strong, not only when it is weak. We are always dealing with degrees and comparisons. And not every element will move in line with every other. It is possible to find, or at least conceive of, highly law-obedient communities ruled by law-flouting despots (perhaps Nazi Germany), legally punctilious rulers with happily law-evading subjects (perhaps parts, non-Austrian parts, of the Austro-Hungarian Empire), lawful rulers with law-obedient subjects who nevertheless make little use of the law.
There are also what Ernst Fraenkel called 'dual states', which, in different spheres and for different classes of people, administer 'an administrative body endowed with elaborate powers for safeguarding the legal order'35 [the 'normative' state], while other classes, or everyone in other spheres (e.g. politics) are prey to 'unlimited violence unchecked by any legal guarantees', wielded by the 'Prerogative state'.36 Nazi Germany was Fraenkel's example; South Africa a more recent one.
Again, in post-dictatorial regimes there is great emphasis on establishing a legal framework for investment and the development of capitalism. Unless accompanied by attention to rights of other sorts, this can reinforce social imbalances where the 'haves' are furnished with benefits of the rule of law, and the 'have-nots' are excluded, for the renovated laws don't apply to them or those that do are unrenovated.37
Finally, everywhere, though with great local variations, what Örkény and Scheppele call the multilayered 'complexity of legality,'38 the differential reach, weight and regard for it shown at different levels of interaction within a polity, can be striking. In Hungary, as they show, law figures very differently in interactions at each of three different levels - constitution/state; state/citizen; citizen/citizen. Everyone obeys the Constitutional Court, the state's relations with citizens are altogether murkier, and relationships among citizens go on much as before. Studies - particularly comparative studies - which took account of these layers of social variability, rather than merely expatiated on the latest doings of the Constitutional Court, would be useful.
The rule of law is, then, not an all-or-nothing phenomenon. The contrasts that most matter here, of course, are not with perfect achievement on any of these criteria, still less all, but adequate achievement, by comparison with available or feasible alternatives. At extremes, say Great Britain or Australia on one hand, and Stalin's Russia or even Lukashenka's Byelorussia on the other, it is not hard to say whether the rule of law exists and matters, though even there more needs to be said. Between extremes judgments can be complex, multi-faceted and delicate. And yet, important ones to make.

3 How?
I begin with an observation, as familiar and unhelpful as it is true. The best way to get the rule of law is to have had it for a long time. Centuries are preferable to decades. Longevity is much preferable to intelligence in these matters. Or even to deliberate thoughtfulness. Anyone who doubts this might ask themselves: if you wanted to build a polity from scratch or to rebuild one after the collapse of an unlamented predecessor, how might you encourage such a state of affairs?
One way would be to furnish it with 'state-of-the-art' legal texts, exemplary institutional models, erudite advice from all corners of the globe, and a lot of money earmarked for development of 'the rule of law'. That is what has occurred over the past decade in the 'transitional' polities of post-communist Europe, among them Russia.
Alternatively, you might round up a bunch of criminals, send them to an alien and unforgiving environment, with inhabitants as culturally distant from the invaders as could be imagined, with no representative institutions, no lawyers (except for some among the criminals), but a couple of courts, and no immediate intention that this should change. This woebegone assortment to be guarded by soldiers and ruled by an autocrat whose formal powers are great and whose practical autonomy, in a wilderness some 20,000 kilometers from his own metropolitan overseers, is even greater. That is how European settlement in Australia began. Yet, notwithstanding gross injustices inflicted on indigenous Australians both by and beyond the law,39 law arguably counted for far more (among whites) in Sydney in 1801 than it does in Moscow in 2001.40 And it still does. There are many reasons for this, but central among them is cultural baggage, in the Australian case permeated by icons and traditions of the rule of law. English convicts and their gaolers brought this baggage with them, at times unwittingly and contrary to appearances, from their own law-suffused country to this strange and desolate outpost situated at what a recent Australian Prime Minister has accurately located as 'the arse-end of the earth'.
Not everyone has such a helpful history. In relation to the rule of law, as to so many other features of 'normal societies', there have been plenty of people ready to tell us that post-communist Europe is a bad place to start. Thus, for example, András Sajó has recently observed in relation to our subject: '[u]nlucky Hungarian history, unfortunate Rumanian history, and for that matter, any other history in East and East Central Europe are responsible for all sorts of constitutional ideas. History nestled all sorts of political ideas into people's minds, except that of classical constitutionalism.'41 Inhospitable cultural inheritances,42 lack of legal culture,43 of a sense for procedure, of respect for impersonal norms,44 entrenched clientelistic networks,45 criminogenic economic and political developments unleashed by the collapse of communist states and pathologies of their successors,46 often the simple lack of serious social constituencies for the restraint and commitment to the rule of impersonal norms,47 that the rule of law entails. These and other impediments could be reeled off, and often are.
Even if we share this miasmal gloom, and all the more if we don't, Lenin's question remains: chto delat', what is to be done? Note that is not the question, can anything be done? I assume, and have argued elsewhere, that something can be done, that history is not destiny.48 I will not repeat the arguments here, but merely assert that there is room for human agency and initiative. Indeed in moments of 'transition' they are often crucial. As Giuseppe di Palma has shown, '[h]ard facts do not mean necessity'.49 And as he goes on to demonstrate in rich and arresting detail, '[w]hatever the historical trends, whatever the hard facts, the importance of human action in a difficult transition should not be underestimated.'50
This is true of action in regard to law as well. For though the law swims in a sea of extra-legal phenomena, it affects them as well as being affected by them. It might even be true that at volatile moments, well-crafted legal institutions can inject needed form and stability to what might otherwise be chaos; that, as András Sajó claims, '[t]he spirit of the age may need formal support, and the legal factor is especially important where the "spirit of the age" has not yet taken shape, where there is simply no constitutional practice nor justice ... Law and constitutionalism, written into law, cannot replace the cement of society, but they are important additives. Sometimes it is the state's role to integrate society, and in such cases these additives become particularly important.'51
and often - however well disposed - so too is their interest. In no society are elites in control of the larger social effects of what they do. Especially is this so in countries where the rule of law has not in earlier years been common, where there are often official and unofficial sources of opposition to it, where institutions had long been devoted to other tasks, where many of them today are chronically weak, where, even leaving aside sources of opposition, no one begins with a tabula rasa, institutionally, socially or politically, and there is a great deal else to be done.
has often been enunciated by the Hungarian Constitutional Court. Take the following passage from the Court's unanimous decision, 11/1992 (III.5) Ab h., striking down a law which sought retrospectively to extend the statute of limitations on certain crimes committed under the communist regime, particularly after the suppression of the 1956 revolution:
That Hungary is a state under the rule of law is both a statement of fact and a statement of policy. A state under the rule of law becomes a reality when the Constitution is truly and unconditionally given effect. For the legal system the change of system means, and the change of system is only possible in this sense, that the whole body of law must be brought into harmony - and new legislation must be kept in harmony - with the new Constitution. Not only must the legal provisions and the operation of the state organs comply strictly with the Constitution but also the constitution's values and its conceptual culture must permeate the whole of society. This is the rule of law, and this is how the Constitution becomes a reality. The realization of the rule of law is a continuous process. For the organs of the State, participation in this process is a constitutional duty.52
Though, as we will see, this passage is overly formulaic and recipe-like for my taste, I agree with much of this general line. The presumption that should drive supporters of the rule of law is that it should be instantiated here and now. Incumbents of exemplary institutions - courts, legislatures, Ombudsmen's offices - should say so, and loudly. Law has commonly not been a very significant part of the cultural baggage of this part of the world and the rule of law often only a counterfactual dream. It is true that lawyers and legislators are only in control of some of the thngs that matter, but at least they are in some control of those. Better, one might speculate, that those in such positions seek to display and inculcate commitment to the importance of law and the rule of law. So long as that commitment does not exist, legal institutions will be hollow and the law will never count for much else than a transmission belt of central power, and often, because of the weakness of law and legal institutions, it will be even ineffective as that. Even where the commitment is strong, there is no guarantee, for the reasons rehearsed earlier, that it will spread. But it is hard to see why it should otherwise.
Such sentiments come easily to lawyers. Even if one supports this view, however, taking its recommendations seriously is less straightforward than it might seem. First of all, not everyone agrees. It is easy, someone might suggest, for a professor of law or a judge to insist upon and agonise about implementation of the rule of law. But - as Australians typically greet professorial ruminations - 'get a life. What about the real world?'
Of course, if, as Holmes claims, 'there is no rule of law until the Mafia needs lawyers',53 then until that time we can't rely on the support of the Mafia for it. Nor of their patrons and clients. Nor those politicians, populist, religious, ethnic, and others, whose values simply have no place for the rule of law. Lists of other people with anti-legal motivations in this part of the world can easily be extended.
And it's not just the bad guys who are frequently indifferent to the charms of the rule of law. Engendering it is rarely a central preoccupation of anyone, except perhaps professors and judges - and not all of them. Everyone else has something substantive on their mind: how to do a successful deal, how to get revenge on a rival, how to keep your head above water, how to avoid paying tax. Law will count significantly in the lives of private citizens, only when it becomes a substantial component of the 'social facts' which impinge upon them. Where there are extra-legal alternatives which provide advantages, law will rarely be chosen until the law provides better ones, because it is effectively required to be so, because it is useful and because the average citizen would prefer it so. Citizens are unlikely to make that a project on their own.
This leaves a job for elites, particularly lawmaking and law-moulding elites. They have a crucial role in seeking to make the rule of law a prominent social fact but both their powers to do so are limited, and often - however well disposed - so too is their interest. In no society are elites in control of the larger social effects of what they do. Especially is this so in countries where the rule of law has not in earlier years been common, where there are often official and unofficial sources of opposition to it, where institutions had long been devoted to other tasks, where many of them today are chronically weak, where, even leaving aside sources of opposition, no one begins with a tabula rasa, institutionally, socially or politically, and there is a great deal else to be done.
Lawmakers always have other things on their mind than encouraging the rule of law - how to get a program through, what to do about crime, unemployment, getting re-elected - and often the imperatives of doing those other things will seem much more immediate, urgent, pressing, than tending the rule of law. All the more so when the rule of law might seem to make it more difficult to do those other things. Governments are expected to do things, and an active government will often find complying with the rule of law a pain, or at least something for which it is very hard to find room. The rule of law is then, at best, only part of what they need to have in mind, and not obviously, nor always, the most important part.
This is not merely a regional idiosyncracy, but a universal problem associated with the modern growth of government.54 Governments do so much more than they ever did before, and constituents require them to show what they have done. Even where that relates to law, measures toward crime control, say, are easier to sell than the rule of law. But if the problem is general, there are circumstances in which it is dramatic. ECE between where and where faces such circumstances.
In 1992 and 93, I interviewed a number of Polish politicians on matters to do with the rule of law. The most impressive of those I interviewed was Jan Maria Rokita, then Chairman of the Council of Ministers and until 1993 in charge of the Polish administration in Hanna Suchocka's government. Since I was speaking to the head of the bureaucracy, I asked whether he was aware of any conflict between law viewed, on the one hand, as a framework for individual activity and on the other as an instrument for the achievement of governmental goals. As a Kraków liberal, Rokita knew the distinction well. Indeed he explained that he had been strongly committed to such a dichotomy between law conceived as 'the stable guarantor of individual liberties above all, and [on the other hand] the extreme instrumentalism of law by the communist authorities.' His views, however, had changed:
This conception was strongly present in my thinking till the moment - it was strongly in the form of a dichotomy. Two worlds - until I came into contact, in reality, with process of making law in the Sejm in 1989.
I found myself in abnormal circumstances, where the decision was to build a new legal system based on liberal standards of the rule of law but, firstly, on the basis of the actually functioning law in Poland, without overthrowing the old system....secondly, in circumstances where law in Poland became the major instrument of structural transformation of the state - especially the economy, where almost the whole economy was covered by detailed legal regulations from the old system.
From this came the necessity of a continuous instrumentalization of law for clear goals of transformation, particularly economic transformation. Operating with mechanisms such as customs duties, taxes, various forms of financial relief, budget corrections, that is questions directly affecting citizens' rights - for example, tax. This has been happening continuously for four years, as a result of obvious need, not as a result of any stable principle, not as a result of any long term perspective, but simply to achieve a certain obvious goal. And this second circumstance is significant since the transformation being achieved is so unwritten-about, so unprogrammed, so unprogrammable, that basically it rests on a general assumption and a general direction - with a constant need to tack, adjust, change course. Changes of course occur every two or three months on various matters. Because no one basically foresees a longer distance. Because there is no way to, not from intellectual weakness or political unwillingness - simply from the uncommonness of the setting.
In these two circumstances I have to say I found myself in a situation where my youthful convictions about the rule of law had - under the pressure of reality - to undergo a complete change. Since a more important goal, much more important from my point of view, was the effectiveness of the reform in Poland. And here it turned out that at every moment it was necessary to instrumentalize law. So we - Poland - are paying a high price for these two circumstances, that we used law as the means for transformation and we decided to build on the basis of communist law. For these two things we are paying an enormous price - in the form of a complete disintegration of the legal system; its much extended internal incoherence; very few rules that are stable, particularly in economic life - very few; unheard of confusions in the political system of the state where laws create overlapping spheres of competence of various organs; the political crisis in spring between the Olszewski government and the President is a classic example.
And today I live in the sort of world I live in, that is one where basically certain desires remain in me for a certain form of legal system like that which I once imagined but much contaminated by the reality which exists and the consciousness that...this situation will not change in a short time.
I am certain, however, that at least certain areas exist where a certain rule of minimum stability should be systematically expanded. This is not something that can be proclaimed from one day to the next....This is appropriate. It should move in this direction. but it has an asymptotic character...getting to a certain ideal is impossible, particularly in these legal institutions of transformation.55
Here we have a particularly eloquent statement that the (then) present demands of social, economic, and political transformation are in inescapable tension with present attention to generating the rule of law, and so the latter will just have to wait. It is not hard to see the power of this argument to anyone charged with responsibilities such as Rokita's.
Fundamentalists about the rule of law, perhaps the first Hungarian Court, might find the argument self-serving and unpersuasive. I would not dismiss it so lightly. The practical tensions to which Rokita refers are real and will often seem and perhaps be inescapable, particularly in the busy early moments of momentous transformations when, as Elster, Offe and Preuss remark, one can't follow the 'golden rule of "one thing at a time"'.56 That they seem so, however, does not necessarily make them so. The argument can easily be taken in the opposite direction, and I would still be inclined to say what I said then in response to Rokita. Though the dilemmas he points to are far from illusory:
there are two horns to a dilemma, between which one must choose. ... Some choices are made because there is an immediate call for them. If the call is demanding it is hard not to make them. But some choices are easier to delay, because though the need is vital it is never obviously urgent. Infrastructural, framework, choices are often of this kind. In fluid circumstances, where insistent and strong demands are constantly placed on the legal system, the moment to build restraint should, I believe, be early rather than late. Otherwise it might never occur.57
Still, it is easier to preach the rule of law (in Sydney) than to develop it, buffeted by the pressures that Rokita identifies. And one can ratchet the argument up even higher, with the suggestion not merely that other things than the rule of law compete with strict adherence to it, but that the future establishment of the rule of law itself depends upon measures that might well deviate from rule of law orthodoxy in the present. This argument has received its most extended elaboration in Ruti Teitel's recent book, Transitional Justice,58 which seeks to offer a legal 'phenomenology of liberalizing transition'.
Teitel suggests that transitions are sui generis, 'extraordinary,' periods, for several reasons that she doesn't clearly distinguish. One is that they are periods of great 'flux'; typically, as the song has it, 'the joint is rocking'. Much more so than in times of 'ordinary' politics when business goes on as usual. Not only are they flux-full but the flux is transitional, that is it is aimed to move away from the past and to something different. Not only that, but at least the end-of-millennial, post-dictatorial transitions involve 'normative shift', that is, roughly a shift from despotism (of which, several different forms are discussed) to democracy and the rule of law (which are not elaborated). All these elements and special tasks make it wrong to assimilate the role of law in such periods to 'ideal' models of legality drawn from flux-free moments. Indeed:
Transitions imply paradigm shifts in the conception of justice; thus, law's function is deeply and inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order even as it enables transformation. Accordingly, in transition, the ordinary [more usually Teitel writes of 'our ordinary'] intuitions and predicates about law simply do not apply. In dynamic periods of political flux, legal responses generate a sui generis paradigm of transformative law.59
According to Teitel, law has a special role in such periods which is an 'extraordinary constructive' one, in that it doesn't merely provide settled guidelines for the present but exercises its 'transformative potential' to engender the putatively changed future which will come at the end of a 'bounded period, spanning two regimes'. The tension between these two functions Teitel calls the 'rule-of-law dilemma' (12). Law is involved in this dilemma because legal institutions are peculiarly apt to 'mediate normative shift' in a gradual, measured and non-violent manner and so, unlike the law of 'ordinary times', become preferred sites and vehicles of social, political and ideological transformation. Thus '[i]n modern political transformation, it is through legal practices that successor societies make liberalizing political change, for, in mediating the normative hiatus and shift characterizing transition, the turn to law comprises important functional, conceptual, operative, and symbolic dimensions'.60
This has profound consequences for the nature of 'transitional justice', according to Teitel. Since the transition is special it should not be judged according to presuppositions derived from 'normal' conditions. On the other hand, each transition is special in its own way (as indeed we all are, according to the American children's song), so generalities are few. While the envisaged future is actually described in rather predictable liberal fashion (though, in truth, it is assumed more than it is described), the pasts which transitional regimes seek to undo are seen to vary markedly from each other. Since they do, so will the character of the law which is doing the undoing, especially where, as in administering doses of 'collective justice' to members of now publicly detested former ruling groups, it seems to violate the rule of law in order to support it.
In consequence of all these variable peculiarities, Teitel does, and by implication we should, 'eschew "ideal theorizing about the rule of law in general"' (12) and instead recognize 'the tension between idealized conceptions of the rule of law and the contingencies of the extraordinary political context. Struggling with the dilemma of how to adhere to some commitment to the rule of law in such periods leads to alternative constructions, constructions that mediate conceptions of transitional rule of law.' (15) We must recognize that 'the transitional rule of law is ultimately contingent' (11), 'partial, contextual, and situated between at least two legal and political orders' (9). So much so, that 'in transition, the ordinary intuitions and predicates about law simply do not apply. In dynamic periods of political flux, legal responses generate a sui generis paradigm of transformative law.' (6)
There are kernels of good sense in Teitel's line of argument, and a lot more than kernels in her detailed commentaries on different aspects of 'transitional justice'. Her remarks about the tensions and purported resolutions of them that have been devised in matters of criminal, historical, reparatory, administrative and constitutional justice are extremely well-informed, thoughtful and enlightening. So too on the various innovations born of transition, among them the widespread use of amnesties and other forms of 'limited criminal sanction', the notion of 'militant democracy', the widespread blurring of legal categories, the burgeoning use of quasi-judicial institutions such as truth commissions, which post-dictatorial regimes have adopted in many parts of the world, and associated with that the role of legal institutions in re-shaping national narratives of their past.
Above all, Teitel's emphasis on the influence the dynamic role of law exerts upon the form it takes, is well taken. While it is often useful to question the implicit teleology in transition talk, there is no doubt that a great deal done today is affected by (path-dependent upon) what happened yesterday, will affect tomorrow, is intended to make tomorrow different from today and even more from yesterday. Where you stand affects what you do, what you should do, and the way you do it as well. How?
Not quite, I think, as Teitel suggests. At least not for precisely her reasons. The general argument, which is drawn uneasily but ambitiously from her arresting particular insights, seems to me theoretically inadequate and overblown. Simultaneously it overrates and underrates what is particular about post-dictatorial transitions, and as a result broad truths are obscured by narrower errors.
The overrating comes from the concept which is used to explain everything: transition. A lot is happening in post-communist societies, law has to deal with a great deal of it and transition is too meagre a concept to explain it all. Thus we find that the Hungarian Court's refusal to extend a statute of limitations and the Czech Court's willingness to do so both stem from exigencies of transition.61 It's just that they're transiting from different circumstances. But a concept that explains everything is in danger of explaining nothing. Perhaps there are other forces in play, like the particular composition of the courts, different arguments which affected them differently, and so on.
Again, Teitel points to the striking activism of some Constitutional Courts in the region, and explains that though activist courts offend 'our' intuitions in established democracies 'that transformative lawmaking should occur by legislation rather than by adjudication',62 things are different in transitional times. So different, indeed, that:
Theories of adjudication associated with understandings of the rule of law in ordinary times are inapposite to transitional periods. Our ordinary intuitions about the nature and the role of adjudication relate to presumptions about the relative competence and capacities of judiciaries and legislatures in ordinary times that simply do not hold in unstable periods. ...[that demand] an extraordinary role for courts exercising principles of transformative adjudication. In periods of political change, the very concerns for democracy and legitimacy that ordinarily constrain activist adjudication may well support such adjudication as an alternative to an even greater politicisation of the law.63
This is a curious argument. First, as a glance at American constitutional debates will reveal, 'our' intuitions about judicial activism are all over the place, and a vast number - perhaps the majority - of American constitutional scholars are for it, even in stable old America. Second, one can make precisely the opposite arguments about the desirability of activist constitutional courts, if 'transition' is the game being played. For example: new democratic legislatures are weak and low in legitimacy, they have responsibilities and budgets. The last thing they need is continually to be upstaged by noisy, irresponsible courts, that don't have to find the money to pay for what they require and can say what they like, in an irritatingly holier-than-thou way.64 I am not endorsing this argument, by the way (though I invented this particular caricature of it), just suggesting that 'transition' can lead to it, as to its opposite, like a bee to honey.
Moreover, as Wojciech Sadurski remarks:
[t]here would be a certain irony in the use of exceptionalism to defend the role of the activist C[onstitutional] C[ourts] since some of the most activist Courts themselves actually refer to the 'normalcy' of the democratic systems in which they operate to justify some of their most activist decisions. The rhetoric of transition and extraordinariness is actually strongly resisted by the constitutional courts themselves. 65
Of course, one might square Teitel's insistence on the centrality of transition with the Courts' insistence that they have arrived, by invoking Jacek Kurczewski's aphorism that 'the transition is permanent',66 but that will, to put it softly, drain the transition of some of its dynamic, teleological and explanatory force.
Yet if Teitel systematically boosts the role of transition in explaining what law is called upon to do after the collapse of dictatorships, she also is silent about some of the common features of post-collapse regimes which occur in 'transitions' and must impinge on what one does about the rule of law, wherever it is you want to go or are being taken. One of them is that institutions are weak, so is a culture of lawfulness, so too institutions used and equipped - financially and in other ways - to sustain such a culture. These features fill the post-dictatorial present, which is not simply an empty but active space between past and future. It has its own characteristics, and they affect the law (and most else). Teitel says little about them, but they matter simply because any attempt to generate the rule of law 'in transition' will be affected by them. These features, whether or not one is transiting anywhere in particular, might make one more, not less, solicitous about traditional legal ways of channelling, directing and restraining power, for example.
Thus, Philip Selznick has long advocated that American (and not only American) law should extend its ambitions beyond a negative, restraining, formal conception of the rule of law to embrace responsiveness to people's particular circumstances and needs. He recognises that responsiveness has risks, but argues that '[s]o long as the system is basically secure, it is reasonable to accept some institutional risks in the interests of social justice.67 On the other hand, he recognises that not every system is 'basically secure' and he has a fine sense for the fragility of institutions especially when they are not well buttressed by long and congenial traditions, strong and supportive professions, and a culture of lawfulness, that is, when they are in circumstances very like those found in 'transitions'. In those circumstances, he suggests, caution is warranted, for "[i]f an institution is too weak (or too inept) to defend its integrity, we should call it opportunistic rather than responsive."68 He might be quite wrong about this, and I think it is actually a matter of fruitful argument. For example, it might be argued that weak institutions require more substantive sources of legitimacy, and this might lead them to justify decisions in less formal and more readily comprehensible grounds than more established institutions need to. Wherever we come down on that argument (and evidence might help!), the strength or weakness of institutions in the transitional present must have relevance to what legal institutions can and should do. Yet these issues are never mentioned in Teitel's analysis, washed away by the universal solvents of transition, flux and normative shift.
And there is a larger point, with which at some length I shall conclude. Teitel several times acknowledges that transitions do not raise unique issues, or rather, as she puts it, 'these periods are not fully discontinuous [from the normal, I presume] but, instead, vividly display in exaggerated form, problems that are ordinarily less transparent in more established justice systems'.69 She does little with this point, however, which indeed cuts across the grain of much that she says elsewhere. But the observation has implications.
It is no doubt true that if we try to use law in periods of transition, 'our' domestic intuitions will often be confronted, if not assaulted. But this does not mean that in the lands of transition nothing general can be said about the rule of law, that all is 'partial' and 'contingent'. Rather it simply confirms that, wherever you are, the rule of law should be approached with a combination of its purposes in mind (and yours, which may not be the same), acquaintance with various attempts to ground and institutionalise them, together with a great deal of reflected-upon local knowledge. It should never be regarded as an occasion to impose imported institutional recipes and idées fixes about how precisely they must be fulfilled. It is sensible to start with the experience of countries which have rich experience of the rule of law, since that experience is often larded with trial, error and reflection, but one must always be open to the need to move beyond that experience in the face of different trials, newfound errors and further reflection.
It is doubtless true that in the West, the distance between purposes, intuitions and institutions is generally smaller than in countries undergoing unprecedented regime transitions. But this is just to say that when things are established, familiar and change little, it is easier to know what to do than when they are novel, strange and/or change a lot. But changes, novelties and surprises confront 'normal' countries too, sometimes dramatically. It may be altogether more dramatic and unprecedented after the collapse of dictatorships, but everywhere, reflections about what we want from law will not automatically tell us how in particular circumstances it might be got. Everywhere, we should try to resist being forced to choose between the clichés of parochial 'intuitions' and the conviction that, in matters of transitional justice, it all just depends. Everywhere we need to exercise judgment not follow recipes.
Let me give just one example which could have come from Teitel, except that it was written about the rule of law in America and indeed anywhere. Lon Fuller, one of the wisest men to have written on the subject, sees law as 'purposive activity attended by certain difficulties that it must surmount if it is to succeed in attaining its ends.'70 The difficulties will vary, and so too, therefore, will the best ways to meet them. At one point he discusses retroactive laws, which are a real worry to many lawyers in 'transitional times.' On the one hand, they are usually regarded as a thorn in the side of the rule of law everywhere, because one can't know a law which only comes to exist later. That is as true in normal as it is in transitional times. On the other hand, successors to dictators often yearn to remedy flagrant past wrongs, some of them committed by or in the name of law. The problem has, therefore, a special poignancy, but it is not unique. Rather, as Fuller observes:
Taken by itself, and in abstraction from its possible function in a system of laws that are largely prospective, a retroactive law is truly a monstrosity. Law has to do with the governance of human conduct by rules. To speak of governing or directing conduct today by rules that will be enacted tomorrow is to talk in blank prose. ...
If ... we are to appraise retroactive laws intelligently, we must place them in the context of a system of rules that are generally prospective. Curiously, in this context situations can arise in which granting retroactive effect to legal rules not only becomes tolerable, but may actually be essential to advance the cause of legality. Like every other human undertaking, the effort to meet the often complex demands of the internal morality of law [the rule of law] may suffer various kinds of shipwreck. It is when things go wrong that the retroactive statute often becomes indispensable as a curative measure; though the proper movement of law is forward in time, we sometimes have to stop and turn to pick up the pieces.71
Many legal polemicists reach for their revolvers as soon as they hear retroactive laws advocated. Fuller, the most eloquent advocate of the rule of law, takes them in his stride. Had he lived to see post-communism, he is unlikely to have thought that his writings had lost their purchase on the situation because new things were happening. On the contrary, I can imagine him saying that these new things could only be done wisely if we kept a firm handle on what they were being done for, and were prepared to be flexible about how to do them.
The point is not that the particular 'transitional' considerations Teitel addresses are of no account. They are important and one learns about them from her. It is rather that, in reacting against an impoverished 'off-the-shelf blueprint'72 approach to the rule of law she herself gives an account of transitional justice which threatens to sever its moorings in the human condition and more general human purposes. Moreover, by overemphasizing the uniqueness of (uncompleted) transitions, she robs herself of any standards of criticism. Where would they come from until the process was well and truly over?
Teitel is not alone in thinking that the opposite of emulation is starting on your own, but she is wrong to think so. I will conclude by suggesting, with the aid of St Thomas Aquinas, who also lived in transitional times,73 a way we might think about particularities, among them those of post-communist transitions, without being swept away by them.
It was common in 1989 to insist that what distinguished these revolutions from any of their forebears was that the former intended 'no more experiments.' Successful models existed in normal countries, and the job was to adopt them. Timothy Garton Ash faithfully captures what this was taken, at least by many prominent activists, to mean at the time:
In politics they are all saying: There is no "socialist democracy," there is only democracy. And by democracy they mean multi-party, parliamentary democracy as practiced in contemporary Western, Northern, and Southern Europe. They are all saying: There is no "socialist legality," there is only legality. And by that they mean the rule of law, guaranteed by the constitutionally anchored independence of the judiciary.74
This taste for democracy and legality 'without adjectives', as dissidents used to put it, can be readily appreciated. They had more than enough experience of distasteful adjectives being forced upon fine nouns to glorify ghastly parodies. They were rightly allergic to such substance-cancelling qualifiers. But, to the extent that saying 'there is only legality' might suggest that there exists one obvious incarnation of legality which merely needs to be copied by eager imitators, then the taste for legality unqualified is misleading.
The trouble is that we have no recipes to produce such results. We know what the rule of law is about, but we can more easily recognize it where it is well-established, and state the values that it serves, than we can specify the particular institutions that will promote it, with any combination of generality, detail and ability to travel. What might go to accomplishing (or thwarting) it will vary with time, place, history and tradition. Since the ideal of the rule of law is important, we should keep that ideal clearly in view, but we should avoid identifying it with, still less reducing it to, particular incarnations or institutional arrangements. For these may well turn out to be neither necessary nor sufficient for the rule of law.
They might not be necessary since, as an ideal of some degree of generality, longevity and abstraction, the rule of law is tied neither to any one national experience or set of institutions. Rule of law regimes have often embodied different judgments about how to implement rule of law ideals, and have been realized within different legal and other histories and traditions that have influenced the particular shapes of the institutions that emerge. Institutional variety and possibility are too rich, and local traditions often too dense and particular, for it to be fruitful to identify the rule of law with just those particular institutions and arrangements which seem to work at home. Moreover, even within one society problems change, and so do the solutions most appropriate to solve them. These differences are not automatically fatal, so long as we understand that the rule of law is not a recipe for detailed institutional design. It is rather a value, or interconnected cluster of values, which might inform the determination of such design, and which might be - and have been - pursued in a variety of ways. It is, and here I again follow Philip Selznick, a 'flexible standard' approached at different times and places in different ways.75
And it is pretty clear that institutions which work one way in one place are often going to be insufficient to ensure similar workings elsewhere, or indeed counter-productive. One example will do. Discussing attempts to 'root out corruption' in post-communist countries, Sajó observes:
Where the cabinet is endowed with its own anti-corruption police, that police will investigate those whom the majority in the cabinet dislike. The rule of law will be stabbed in the back by a partisan and arbitrary knife, although the use of that knife was originally authorized to protect the rule of law.
At the moment, however, corruption and governmental indecency go unpunished everywhere in eastern Europe and precisely in the name of the rule of law.76
It is not inevitable that such counter-productive results will follow the introduction of institutions, witness the early and striking popular success of the Polish Ombudsman. It is enough for my purposes here that it is possible.
This is not to deny that the ideals of the rule of law have been better served in some nations and by some institutions than others. Institutional learning can and does occur and it would be absurd to ignore the 'funded experience' of generations. Some arrangements have been learnt to work well in many contexts; others less so or only in some contexts. It is, therefore, appropriate to ponder the relationship between rule of law ideals and particular, realized, institutional forms. Success does not, however, depend upon faithful mimicry (for even if we could duplicate whole institutional complexes and their often intangible but crucial cultural correlates, it is another job to graft them) and it often thrives on innovation, even misinterpretation, as occurred when Montesquieu attributed British liberty to the separation of powers he wrongly though was institutionalised there, and then the Americans institutionalised it because they were so impressed by Montesquieu.
Taken as a 'flexible standard', and in keeping with the teleological bent of my argument, I would suggest that institutionalising the rule of law is better approached as a job of what Saint Thomas called determinatio (determination, concretisation, implementation), rather than the more common cut-and-dried activist model of emulation. Speaking of natural law, Aquinas explains that there are two ways in which something may be derived from it: 'first, as a conclusion from premises; secondly, by way of determinatio of certain generalities'.77 The idea is usefully glossed by John Finnis:
This notion of determinatio he [Aquinas] explains on the analogy of architecture (or any other practical art) in which a general idea or 'form' (say, 'house', 'door', 'door-knob') has to be made determinate as this particular house, door, door-knob, with specifications which are certainly derived from and shaped by the general idea but which could have been more or less different in many (even in every!) particular dimension and aspect, and which therefore require of the artificer a multitude of choices. The (making of the) artefact is controlled but not fully determined by the basic idea (say, the client's order), and until it is fully determinate the artefact is non-existent or incomplete.78
Looking at 'normal societies', optimists about the rule of law have often been those who think emulation is necessary and possible, pessimists that it is necessary but impossible, Teitel that it is not necessary because transitional. But perhaps, in circumstances where determination is required, the choice between emulation and invention is simply inappropriate.
To 'adopt' the rule of law we need to 'adapt' it in the light of close attention to the ideals we take it to serve, together with a good deal of local knowledge. Moreover, we need to do so over and over again, since a commitment to the rule of law is commitment:
to a governing ideal, not to a specific set of injunctions. This ideal is to be realized in history and not outside of it. But history makes its own demands. Even when we know the meaning of legality we must still work out the relation between general principles and the changing structure of society. New circumstances do not necessarily alter principles, but they may and do require that new rules of law be formulated and old ones changed.
In a system governed by a master ideal, many specific norms, for a time part of that system, may be expendable. The test is whether they contribute to the realization of the ideal.79
I have tried to say something about what that test involves. Whether it will be passed, by countries seeking to establish the rule of law in hard places and times, is another question. In extreme cases - the best and the worst - that question is easy to answer, and we should not wallow in sophistication and pretend it is hard. Byelorussia fails, and it is not alone. Nor still should we be deflected from illegal realities by Potemkin legalities.80 Practical difficulties stem from all sorts of constitutencies,81 traditions, and incentives to which the rule of law is uncongenial, and often its own constitutencies, traditions and incentives are weak. Even without all these intractabilities, however, real conceptual, moral, and practical difficulties will remain. And they lie elsewhere. I will conclude with Fuller, since much of my thinking began with him:
It is easy to say that laws should be clearly expressed in general rules that are prospective in effect and made known to citizens. But to know how, under what circumstances, and in what balance these things should be achieved is no less an undertaking than being a lawgiver.82

1 Professor of Law, University of New South Wales. This is a revised version of a a paper delivered at the conference: East Central Europe: from Where to Where? organized by East Central Europe/L'Europe du Centre Est. Eine wissenschaftliche Zeitschrift at Collegium Budapest/ Institute for Advanced Study, Budapest, 15-17 February, 2001. It was also delivered to a seminar of the Law Program, Research School of Social Sciences, Australian National University. I am grateful to participants in both occasions for comments and criticisms.
2 Adam Podgórecki makes a similar point about the insights to be gained from the experience of 'crippled rights' in his 'Human Rights Revolution,' in A Sociological Theory of Law, A. Giuffre, Milan, 1991, 102-03.
3 An Introduction to the Study of the Law of the Constitution, 10th edition, Macmillan, London, 1961.
4 See The General Theory of Law and Marxism, in Pashukanis, Selected Writings on Marxism and Law, edited by Piers Beirne and Robert Sharlet, Sage, New York, 1980, 89.
5 See Eugene Kamenka and Alice Erh-Soon Tay, 'Beyond Bourgeois Individualism - The Contemporary Crisis in Law and Legal Ideology' in Eugene Kamenka and R.S. Neale, eds., Feudalism, Capitalism and Beyond, Edward Arnold, London, 1975, 127-44; Roberto M. Unger, Law in Modern Society, Free Press, New York, 1976; Philippe Nonet and Philip Selznick, Law and Society in Transition. Towards Responsive Law, Harper & Row, New York, 1978.
6 To be precise, Pashukanis believed 'law' properly so-called was a form of regulation that developed only with capitalism and was quite different from other forms of governmental orders, which regulated affairs in other ways. But the point can be made without this idiosyncratic re-definition.
7 See Stephen Holmes, Passions and Constraint, University of Chicago Press, Chicago, 1995, Stephen Holmes and Cass Sunstein, The Cost of Rights, Norton, N.Y., 1999.
8 Guillermo O'Donnell, 'Horizontal Accountability in New Democracies', in Andreas Schedler, Larry Diamond, Marc F. Plattner, eds., The Self-Restraining State, Lynne Rienner, Boulder, 1999, 29-52, with comments by Richard L. Sklar, Philippe C. Schmitter, and Marc F. Plattner, and a response by O'Donnell.
9 'The Quality of Civility: Post-Anti-Communist Thoughts on Civil Society and the Rule of Law', forthcoming in András Sajó, ed., To and From Authoritarianism [or something similar], Kluwer, Amsterdam, 2001)
10 I have explored this dialectic in 'Ethical Positivism and the Liberalism of Fear,' in Tom Campbell and Jeffrey Goldsworthy, eds., Judicial Power, Democracy and Legal Positivism, Ashgate, Aldershot, 2000, 59-87.
11 John Locke, op.cit., 405-06.
12 John Rawls, A Theory of Justice, Harvard University Press, Cambridge Massachusetts, 1971, 238.
13 Philip Selznick, 'Legal Cultures and the Rule of Law' in Martin Krygier and Adam Czarnota, eds., The Rule of Law after Communism, Dartmouth/Ashgate, Aldershot, 1999, 26. See too David Dyzenhaus, Judging the Judges, Judging Ourselves. Truth, Reconciliation and the Apartheid Legal Order, Hart Publishing, Oxford, 1998.
14 'The Proletarian Revolution and the Renegade Kautsky,' Selected Works, volume II part 2, Moscow 1951, 41. Cf. Lenin, 'The Immediate Tasks of the Soviet Government,' Selected Works, Moscow, 1951, vol.II part 1, 478: 'But dictatorship is a big word, and big words should not be thrown about carelessly. Dictatorship is iron rule, government that is revolutionarily bold, swift and ruthless in suppressing the exploiters as well as hooligans. But our government is excessively mild, very often it resembles jelly more than iron.'
15 David Stark and Laszlo Bruszt, Postsocialist Pathways. Transforming Politics and Property in East Central Europe, Cambridge University Press, Cambridge, 1998, chapter 6. See, too, on 'positive constitutionalism', Stephen Holmes, Passions and Constraint.
16 See Lon L. Fuller, The Morality of Law, revised edition, Yale University Press, New Haven, 1969, 162; Joseph Raz, 'The Rule of Law and its Virtue' in The Authority of Law Oxford University Press, Oxford, 1979.
17 'Political Judges and the Rule of Law', in A Matter of Principle, Harvard University Press, Cambridge, Mass., 1985, 11-12.
18 Selznick, 'Legal Cultures and the Rule of Law,' 26.
19 See Otto Kirchheimer, Political Justice. The use of legal procedure for political ends, Princeton University Press, Princeton N.J., 1961.
20 I draw some of these claims from my entry 'rule of law', forthcoming in Neil J. Smelser and Paul B. Baltes, eds., International Encyclopedia of the Social and Behavioral Sciences, Elsevier, Amsterdam, 2001.
21 'Polyarchies and the (Un)Rule of Law', in Juan E. Méndez, Guillermo O'Donnell and Paul Sérgio Pinheiro, eds., The (Un)Rule of Law and the Underprivileged in Latin America, University of Notre Dame Press, Notre Dame, Indiana, 1999, 318.
22 Joseph Raz, 'The Rule of Law and its Virtue' in The Authority of Law Oxford University Press, Oxford, 1979, 213.
23 For the rich Belarusian catalogue of these standards reversed, see 'Constitution Watch: Belarus' (Summer 2000) 9, 3 East European Constitutional Review 6ff.
24 On all this, see Lon Fuller, The Morality of Law and Selznick, The Moral Commonwealth, University of California Press, Berkeley, 1992, 335, 464.
25 The Morality of Law, 104.
26 In another age, Dicey expresses a similar point about the intangible reality of the rule of law. He comments on Tocqueville's observations on England, that they point in 'the clearest manner to the rule, predominance, or supremacy of law as the distinguishing characteristic of English instittutions. They further direct attention to the extreme vagueness of a trait of national character which is as noticeable as it is had to portray.' Op. cit., 187.
27 'Can Foreign Aid Promote the Rule of Law?', (Fall 1999), 8,4 East European Constitutional Review 71.
28 Cf. Robert D. Putnam, Making Democracy Work. Civic Traditions in Modern Italy, Princeton University Press, Princeton, N.J., 1993, 111-12: 'Collective life in the civic regions [of Italy] is eased by the expectation that others will probably follow the rules. Knowing that others will, you are more likely to go along, too, thus fulfilling their expectations. In the less civic regions nearly everyone expects everyone else to violate the rules. It seems foolish to obey the traffic laws or the tax code or the welfare rules, if you expect everyone else to cheat. (The Italian term for such naïve behavior is fesso, which also means "cuckolded.) So you cheat, too, and in the end everyone's dolorous, cynical expectations are confirmed.'
29 The Concept of Law, Oxford University Press, Oxford, 1961, 113.
30 'Law as medium and law as institution,' in Gunther Teubner, ed., Dilemmas of the Welfare State, Berlin, de Gruyter, 1986, 212.
31 It will be some time before one can say of ex-communist countries what E.P. Thompson observed of eighteenth century English agrarian law:
'law was often a definition of actual agrarian practice, as it had been pursued "time out of mind" ... The farmer or forester in his daily occupation was moving within visible or invisible structures of law ... "law" was deeply imbricated within the very basis of productive relations, which would have been inoperable without this law. And ... this law, as definition or as rules (imperfectly enforceable through institutional legal forms), was endorsed by norms, tenaciously transmitted through the community.' (Whigs and Hunters, Penguin, Harmondsworth, 1977, 261.)
32 See especially Kathryn Hendley, Stephen Holmes, Anders Åslund, András Sajó, Debate: Demand for Law, (1999) 8, 4 East European Constitutional Review 88-108. Cf. also 'Citizen and Law after Communism, (Winter 1998) 7, 1 East European Constitutional Review, 70-88.
33 This is a point emphasized by writers who emphasize 'legal pluralism'. Two classic essays are Sally Falk Moore, 'Law and social change: the semi-autonomous social field as an appropriate subject of study', in Law as Process, Routledge & Kegan Paul, London, 1978, 54-81, and Marc Galanter, 'Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law', (1981) 19 Journal of Legal Pluralism, 1-47.
34 Selznick's term: 'the rule of law requires a culture of lawfulness, that is, of routine respect, self-restraint, and deference.' op.cit., supra, n.12, 37.
35
36 The Dual State, trans. E.A.Shils, et al, Oxford University Press, New York, 1941, xiii .
37 See Guillermo O'Donnell, 'Polyarchies, and the (Un) Rule of Law', 320.
38 'Rules of Law: The Complexity of Legality in Hungary', in Martin Krygier and Adam Czarnota, eds., The Rule of Law after Communism. Problems and Prospects in East-Central Europe, Dartmouth/Ashgate, Aldershot, 1999, 55-76.
39 I have said something about these in Between Fear and Hope. Hybrid Thoughts on Public Values, A.B.C. Books, Sydney, 1997, esp. chapter 4.
40 On Moscow, see Kathryn Hendley et al, 'Debate. Demand for Law'. On Sydney, see David Neal, The Rule of Law in a Penal Colony, Cambridge University Press, 1991. I have discussed Neal's argument and its central European resonances in "Convicts and Legal Culture" (November 1992) Quadrant 77-79, in Polish 'Skazancy i Rzady Prawa,' (1993) 2 Nowa Res Publica Warsaw, 41-2.
41 Limiting Government. An Introduction to Costitutionalism, CEU Press, Budapest, 1999, 1.
42 See Piotr Sztompka, 'Civilizational Incompetence: The Trap of Post-Communist Societies', (1993) 22, 2 Zeitschrift für Soziologie, 90. See also his 'The Intangibles and Imponderables of the Transition to Democracy' (1991) 24, 3 Studies in Comparative Communism 295-311. For some re-thinking, see 'Looking Back: The Year 1989 as a Cultural and Civilizational Break', (1996) 29, 2 Communist and Post-Communist Studies, 115-29. Also Claus Offe, 'Cultural Aspects of Consolidation: A Note on the Peculiarities of Postcommunist Transitions' (Fall 1997) 6. 4 East European Constitutional Review 64-68.
43 See Monica Macovei, 'Legal Culture in Romania', (Winter 1998) 7, 1 East European Constitutional Review, 79-81.
44 See Adam Podgórecki, Polish Society, Praeger, Westport, Conn., 1994.
45 See András Sajó, 'Corruption, Clientelism, and the Future of the Constitutional State in Eastern Europe', Spring 1998) 7, 2 East European Constitutional Review 37-46.
46 See Peter H. Solomon, J. and Todd S. Foglesong, 'The Two Faces of Crime in Post-Soviet Ukraine, (Summer 2000) 9, 2 East European Constitutional Review,72-76. And see 'Crime and Corruption after Communism', (Fall 1997) 6, 4 East European Constitutional Review, 69-98.
47 See Stephen Holmes, 'What Russia Teaches Us Now. How Weak States Threaten Freedom' (July-August 1997) The American Prospect, 30-39.
48 See 'Institutional Optimism, Cultural Pessimism and the Rule of Law', in Martin Krygier and Adam Czarnota, eds., The Rule of Law after Communism, Dartmouth/Ashgate, Aldershot, 1999, 77-105.
49 To Craft Democracies,, University of California Press, Berkeley, CA., 1990, 8.
50 Ibid., 9.
51 Sajó, op.cit., 10.
52 In Lászlo Sólyom and Georg Brunner, Constitutional Judiciary in a New Democracy. The Hungarian Constitutional Court, University of Michigan Press, Ann Arbor, 2000, 219. Quoted (in a slightly different translation) by Gábor Halmai and Kim Lane Scheppele, 'Living Well is the Best Revenge: The Hungarian Approach to Judging the Past', in A. James McAdam, ed., Transitional Justice and the Rule of Law, University of Notre Dame Press, Notre Dame, 1997, 161.
53 'What Russia Teaches Us Now', 32.
54 A great deal has been written on these issues. See references in n.5 above.
55 Interview with Jan Maria Rokita, January 8, 1993 (held on tape (in Polish) by author).
56 Jon Elster, Claus Offe and Ulrich Preuss, Institutional Design in Post-communist Societies: Rebuilding the Ship at Sea, Cambridge University Press, Cambridge, 19.
57 'Four Visions of Post-Communist Law,' in (1994) 40 Australian Journal of Politics and History. Special Issue: Ideas and Ideologies. Essays in Honour of Eugene Kamenka, 104-20.
58 Oxford University Press, New York, 2000.
59 Ibid., 6.
60 Ibid., 221.
61 Cf. on Hungary, op.cit., 20; on Czechoslovakia, 21.
62 Ibid., 24.
63 Ibid., 25.
64 See Stephen Holmes, 'Back to the Drawing Board', (1993) 2, 1 East European Constitutional Review 21-25, András Sajó, 'Reading the Invisible Constitution: Judicial Review in Hungary', (1995) 15 Oxford Journal of Legal Studies 253-67, Sajó, 'How the Rule of Law Killed Hungarian Welfare Reform', (1993) 5, 1 East European Constitutional Review 31-41.
65 'Constitutional Justice, East and West: Introduction', forthcoming ....[get cite]
66 Quip in private conversation.
67 The Moral Commonwealth, 464.
68 Ibid., 236.
69 Op.cit., 67.
70 The Morality of Law, 117.
71 Ibid.,, 53
72 Wade Jacoby, 'Priest and Penitent: The European Union as a Force in the Domestic Politics of Eastern Europe', (Winter/Spring 1999) 8, 2 East European Constititutional Review 62.
73 Known, after all, as the MIDDLE ages.
74 "Eastern Europe: The Year of Truth," New York Review of Books, February 15, 1990, 21.
75 'Legal Cultures and the Rule of Law', in Martin Krygier and Adam Czarnota, eds., The Rule of Law after Communism, Dartmouth/Ashgate, Aldershot, 1999, 23.
76 'Corruption, Clientelism, and the Future of the Constitutional State in Eastern Europe',46.
77 Summa Theologica I-II, q.95, a.2c.
78 Natural Law and Natural Right, Clarendon Press, Oxford, 284.
79 Philip Selznick, 'Sociology and Natural Law', (1961) Natural Law Forum, 103.
80 See Wade Jacoby, 'Priest and Penitent'.
81 See Stephen Holmes, 'Introduction' to 'Crime and Corruption after Communism', (Fall 1997) 6, 4 East European Constitutional Review 69: 'Today, anti-rule-of-law constituencies play a pivotal role in every country that has exited from Soviet domination. ... groups that have a palpable interest in the vagueness of the law or who profit from the routine failure to implement court decisions and administrative rulings.'
82 The Morality of Law, 94.

Published in East Central Europe/ L'Europe du Centre Est. Eine wissenschaftliche Zeitschrift vol.28 part 1, 2001, 1-34.