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Martin Krygier (UNSW Sydney, Australia)
Martin Krygier is Gordon Samuels Professor of Law and Social Theory, Faculty of Law and Justice, UNSW Sydney, and Senior Research Fellow, Rule of Law Program, Central European University Democracy Institute, Budapest. He is a fellow of the Australian Academy of Social Sciences. He writes extensively for academic journals and journals of public debate, on the rule of law, law and social theory, and law and politics in central and eastern Europe. His present research is focused on anti-constitutionalist populism and the rule of law. In 2016 he was awarded the Dennis Leslie Mahoney Prize in Legal Theory. He has enjoyed invited fellowships and visiting professorships at numerous universities and institutes in Australia, Austria, Hungary, Israel, New Zealand, Poland, Spain, the United States, and the United Kingdom.
His books include Anti-Constitutional Populism, 2022 (co-ed.); Philip Selznick. Ideals in the World, 2012; Civil Passions, 2005; Spreading Democracy and the Rule of Law? 2006 (co-ed); Rethinking the Rule of Law after Communism, 2005 (co-ed); Legality and Community: On the Intellectual Legacy of Philip Selznick, 2002 (co-ed); The Rule of Law after Communism, 1999 (co-ed); Marxism and Communism: Posthumous Reflections on Politics, Society, and Law, 1994 (ed.); Between Fear and Hope. Hybrid thoughts on Public Values, 1997; Bureaucracy. The Career of a Concept, 1979 (co-ed). .
Recent articles include: ‘‘Władza utemperowana: Kulturowe osiągnięcie o uniwersalnym znaczeniu”’ [‘Well-Tempered Power. “A Cultural Achievement of Universal Significance”’] in Jacek Żakowski ed., Almanach 2023-2024, Warsaw, Fun2023, 153-85; ‘The Ideal of the Rule of Law and Private Power,’ in Mark Tushnet and Dimitry Kochenov, eds., Research Handbook on the Politics of Constitutional Law, 2023, 14-29; ‘Domestic Abuse: Populists and the Rule of Law,’ IWMpost Winter 2022, no. 130, 1; ‘Too Much Information,’ in Helge Dedek and William Twining, eds., Cosmopolitan Jurisprudence. Essays in Memory of H. Patrick Glenn, 2022, 117-42; ‘Illiberalism and the Rule of Law,’ in András Sajó, Renata Uitz and Stephen Holmes, eds., Routledge Handbook on Illiberalism, 2021, 533-53; ‘The Spirit of Constitutionalism,’ J. Urbanik and A. Bodnar, eds., Περιμένοντας τους Bαρβάρους. Law in the days of Constitutional Crisis. Studies offered to Mirosław Wyrzykowski, 2021, 343-58; ‘Democracy and the Rule of Law,’ in Jens Meierhenrich and Martin Loughlin, eds., Cambridge Companion to the Rule of Law, 2021, 406-24; ‘An Ecumenical Sensibility,’ in Paul van Seters, ed., The Anthem Companion to Philip Selznick, 2021, 189-212.
MOVING THE GOALPOSTS:
FROM THE RULE OF LAW TO WELL-TEMPERED POWER
FROM THE RULE OF LAW TO WELL-TEMPERED POWER
MARTIN KRYGIER
In sports with goalposts, it is key to know what and where they are. For getting the ball between them is the aim of the game. Everything else – systems, training, skills, running, swerving, kicking, tackling – is subservient to that aim, means to that end. Depending on changing conditions, weather, opposition, techniques, and so on, players learn to adjust their equipment, tactics and strategies to that goal. And if it doesn’t work, they try something else.
With the rule of law, by contrast, the goal of the enterprise is often less clearly in view. Lawyers and legal philosophers begin by singling out some or other canonical assemblage of legal rules, forms, procedures and institutions and anoint it with the – today ‘iconic’ – honorific, rule of law. Analysts analyse it, advocates advocate it; promoters promote it. But if the rule of law is a ‘solution concept’ (Waldron), isn’t it more sensible to start with the problem it’s supposed to solve, and ask what might do that, rather than the other way around?
In this lecture, I argue that the simple ordering of priorities that all footballers, lay fans, even children would recognise, is typically blurred, where it is not reversed, in mainstream discussions of the rule of law. Since most lawyers and legal philosophers are professionals and grown-ups, it might be time that they recognise it too. The goal I postulate for the rule of law – unoriginal but not uncontroversial - is well-tempered power. That, or if you disagree, some alternative goal – not any pre-set list of ingredients - should frame our thoughts and acts from the start. For ingredients will be more or less successful - and will need to be varied - with time, place and circumstance. Among such ingredients, so too will the content and the contribution of the rule of law. My hope is that if we think this way, and follow through on the thought, we might even score some goals.
With the rule of law, by contrast, the goal of the enterprise is often less clearly in view. Lawyers and legal philosophers begin by singling out some or other canonical assemblage of legal rules, forms, procedures and institutions and anoint it with the – today ‘iconic’ – honorific, rule of law. Analysts analyse it, advocates advocate it; promoters promote it. But if the rule of law is a ‘solution concept’ (Waldron), isn’t it more sensible to start with the problem it’s supposed to solve, and ask what might do that, rather than the other way around?
In this lecture, I argue that the simple ordering of priorities that all footballers, lay fans, even children would recognise, is typically blurred, where it is not reversed, in mainstream discussions of the rule of law. Since most lawyers and legal philosophers are professionals and grown-ups, it might be time that they recognise it too. The goal I postulate for the rule of law – unoriginal but not uncontroversial - is well-tempered power. That, or if you disagree, some alternative goal – not any pre-set list of ingredients - should frame our thoughts and acts from the start. For ingredients will be more or less successful - and will need to be varied - with time, place and circumstance. Among such ingredients, so too will the content and the contribution of the rule of law. My hope is that if we think this way, and follow through on the thought, we might even score some goals.
Internationale Vereinigung für Rechts- und Wirtschaftsphilosophie /
International Association for Philosophy of Law and Social Philosophy
