Martin Krygier and the Tempering of Power

This piece reflects rather admiringly on the methods and conceptual framework of Martin Krygier’s various contributions to our understanding of the rule of law. It examines his use of the idea of the telos of the rule of law, contrasting it with the approaches of theorists who seek to analyse the essence or ‘anatomy’ of the rule of law idea or of law itself. It then examines his notion of how the rule of law should be understood as the tempering of power. Largely agreeing with Krygier’s conception, the essay nevertheless suggests that the project might be improved by focusing on the telos or social functions of law rather than those claimed to be immanent in the rule of law. It also nudges Krygier to deepen the metaphor of tempering by clarifying the relationship between the rule of law and other key concepts such as liberty, human rights, and democracy. I have had the good fortune of wandering into the impressive offices of several eminent scholars and of feeling both inspired and daunted by the walls of literature surrounding me. But in only one case have I reached for my phone and begun filming the bookcases—and it was the office of Martin Krygier. I did so not because of the architecture. The University of New South Wales may boast one of the world’s most beautiful settings, but its offices don’t hold a candle to the old-world charm of many of its dusty European counterparts. It was rather the books themselves—row after row of sociology, politics, law and history, on topics ranging from Eastern Europe, to Max Weber, to the cannon of Western political philosophy. Writing down the titles of important volumes would have had me there for days. I swept up what I could with my phone’s camera and mined it later for gold. That wall of dog-eared learning tells a lot about why Martin Krygier’s contributions to our understanding of the rule of law have been not only profound but wise. They are based on very wide reading, in diverse areas, and refracted against real-time observation of cold war politics and beyond, notably with the case of Poland. Krygier well understands the role of law in building states as much as the role of law in restraining the arbitrary power of government. He is still writing, and one hopes, nearing completion of his magnum opus on the rule of law. But I have anyway read enough for me to be sure that I am in the Krygier camp. It is a camp in which the rule of law is understood chiefly as a normative political value concerned with the role of law in tempering power. I will take the remainder of this short essay to comment on his method, the metaphor of tempering, and then conclude with two friendly suggestions about how the project may be refined—tempered perhaps—in a manner wholly congenial to Krygier’s overall aims. 1. The Rule of Law and Telos One of Krygier’s important contributions is to remind readers of forgotten ways of thinking about the rule of law. In the work of legal theorists such as Lon Fuller (1964), Joseph Raz (1977) and John Finnis (1980), the rule of law is an ideal that is concerned with the essence of legality. It is tied to their understanding not of what the law is for, but what the law and the legal system are. Indeed, the message contained in the very title of Raz’s famous essay ‘The Rule of Law and its Virtue’ is precisely that we can separate the questions of what the rule of law is from what it can do or what value it may have. These approaches tend to understand the rule of law as that set of minimal conditions for law to function as law—to be law. For Raz, that central minimal task was the guidance of human behaviour, and for Fuller it was the subjection of human behaviour to the governance of rules. From those two basic aims these authors conclude that the necessary and sufficient conditions for law to operate as law—the sine qua non of law’s existence—are what the rule of law is. For John Finnis, the rule of law was, famously, the set of procedures that indicate when a legal system is in ‘legally good shape’.Footnote1 It is so when the legal system facilitates the coordination of persons for the common good. Yet each of these authors presupposes that the rule of law comprises a set of features deduced from the concept of law itself—one ascertains what the rule of law is by exploring what Krygier describes as the ‘anatomy’ of law itself. Of these accounts, Krygier’s critique strikes me as correct