NB’s either thumped OR resilient.

Everyone in the world, and not just the US, has a legitimate interest in whether we have any way to approach general questions about resilience such as the following: How much beating can institutions that support the ideals of the rule of law take before they get seriously degraded, so the next time an issue comes up they’re no longer in the fight? Or how quickly might they spring back and contribute to the rule of law? What will encourage and what will blunt the force of the various extra-legal sources of support for the rule of law, that sometimes work to crucial effect in its favour, while at other times are nowhere to be seen, or oppose it? In the last chapter of Law’s Wars, ‘the resilience of the rule of law’, Rick discusses various potential but variable – often Janus-faced - sources of resilience: NGOs, law itself, ‘sunshine’, the executive, military justice, the bureaucracy, congress, civil society, ‘interposing bodies’, and others. This gives us key ingredients for an answer to such questions, all the more topical after the POTUS’s pardon of war criminals last Memorial Day, but–perhaps because any general answers are beyond us – no summative answers to questions of this sort are offered.

But they trouble me. In my day job one thing I’m exploring is the implications of the rise of populist authoritarianism in countries like Poland and Hungary, and in one recent piece7 I asked what I thought was a good question, though I’m not sure of my answer to it. My question was roughly: why has it been so easy for populist subversion of constitutionalist and rule of law values and institutions to occur where, only thirty years ago, they seemed to have been welcomed as indispensable ingredients of the ‘normality’ so many citizens of the region professed to admire? Another way of asking the question is: why have Kaczyński and Orbán found so apparently easy what Donald Trump, whose power is not small and whose motivations and ambitions appear to tend in similar directions, finds so hard: to overwhelm and take over ostensibly (and relatively) independent institutions that were intended to temper power? In what circumstances and for what reasons will institutions resist, when will they fight back, when will they fold, and perhaps fundamental to all this, when will they receive adequate support from all those extra-legal agencies whose support the rule of law might require in times of challenge?

My answer had to do with ‘institutionalisation’ in the sense of that word that Philip Selznick gave to it: ‘to infuse with value beyond the technical requirements of the task at hand.’8 New rule-of-law leaning institutions were weakly institutionalised, drew upon weak and shallow popular loyalties, and post-communist leaders were much more given to emulation, adoption and installation, than they were into institutionalisation. Existing institutionalised practices and institutions complicated attempts at innovation, and not much heed was paid to them. Innovations had shallow roots and not much cultivation. So populist leaders, who are attuned to the need to institutionalise their reforms in existing patterns of attachment had a lot of room to move and a lot of material to draw upon and exploit. In general, they have understood the signifcance of institutionalisation better than their opponents. They draw on institutionalised sources of attachment, resentment, and attitudes to public institutions and reforms of them, but they also seek to develop and shape them in ways that serve their illiberal ends.

On the other hand, whereas values underpinning liberal reforms were not any part of strong living traditions, they had little institutionalised sustenance; other values often contradictory to those proselytised could draw on significant traditions, they had substantial popular resonance and grip, they were institutionalised. This was often in practical terms ignored by reformers as a pressing problem to be dealt with, in order for the values underlying their own reforms to be institutionalised. Consequently, reformers indulged more in technocratic attempts to impose ‘international [or just European] best practice’ in institutional design, rather than sustain thought about how local institutional attachments might be generated. However, without attachment, design is unlikely to matter much. Post-communist democratic, legal, and constitutional transformations were much more given to emulation, adoption and installation of purported means, than to institutionalisation of their connection with valuable ends; they were far more ‘instrumental’ than ‘refexive’ in sensibility and approach, to use a distinction elaborated by Grażyna Skąpska.9

America, I believe, is different. Actors draw upon, or like Trump chafe against, highly institutionalised traditions of commitment to rule of law values, and as the past three years have shown, while Trump shares none of these values, to a considerable if still indeterminate extent, his ambitions have been resisted and perhaps confined, by many forces committed to them.

I still think there’s something in that line of argument, but in the light of the experiences that Rick brings again to life, it’s obviously much more complicated than I allowed. After all, he has revealed the magnitude of huge inroads on institutional values in the United States, sustained over several years only a few years ago, and remaining largely unpunished. If such things had happened in Turkey and not the US, I could have rolled out my explanation with some confidence, but as Rick stresses at the very beginning of this chapter, ‘the US waged its “war on terror: within a well-established and highly elaborated normative environment it had helped to promulgate, pledged to respect, and boasted about following.’ What then of the power of institutionalised values? Conversely, how to explain the apparent contrast between the amount of institutional complicity then and now? Is the fact that there was war then and not now enough of an explanation? And if so, isn’t that a very slight foundation for the rule of law, when the President could legally start a war at any time.

And finally, what lessons for or from the rest of the world? Are these pathologies especially or distinctively American? How do they compare, and what may other societies learn about what might be required for the rule of law? What of all those countries which condemned all the pathologies of Guantanamo as they occurred in the United States, but show nothing of their erstwhile moral uprightness when asked to do something about thousands of their own citizens and their families who joined ISIS and are now interned in Syria, with no end in sight?10

Again, what of all those countries, which is most countries, that don’t have the long and rich experience of commitment to the rule of law that the United States, with all its faults, has had? After all, an arrangement of forces and resources, so that power is routinely not available for arbitrary exercise, particularly when the power of some over others is considerable, is – as Montesquieu stressed11 - not a simple or natural state of affairs. Unless something is done to prevent it, arbitrariness is likely where power is concentrated, as it so often is, in a few powerful hands. Rick has written importantly about South Africa, which has a ‘dual state’ sort of experience, but of course many states in the world have even weaker traditions of tempered power than that. In many autocratic traditions, indeed, it’s not a matter of weak traditions of rule of law, but of strong traditions that reject it.