ILLIBERALISM AND THE RULE OF LAW

This paper examines the implications of certain forms of liberalism and illiberalism for the rule of law. The rationale of the rule of law is to reduce the possibility of arbitrary exercise of power. That is why liberals like it. The paper discusses, two forms of illiberalism that do not like it, and explores convergences and differences between them: ‘eliminationist’ illiberalism, particularly Marxism, and ‘unbinding, unleashing’ forms of illiberalism, among them those bequeathed by Carl Schmitt and contemporary heirs, including the ‘populist’ regimes of Jarosław Kaczyński and Viktor Orbán. Finally, the paper discusses how we should conceptualise the distinctive (though not unique) attempts of contemporary illiberal populist regimes to use law and rule of law rhetoric for illiberal purposes, rather than openly reject or blatantly bypass it.