ABSTRACT
How are liberties limited under liberal rule? This is the starting point for this chapter. Two conceptions of limits to liberties emerge, dependent on the alleged relation between liberal rule and illiberal rule. In seeking to understand contemporary deprivation of rights, many scholars have adopted the liberal discourses and promoted the view that the infringement of liberties is an exception to liberal rule (Agamben 1998, 2004; Butler 2004; Ramoneda 2007). Illiberal rule has been associated with arbitrary rule through executive power, constitutional states of exception, extraterritorial spaces that are outside the rule of law, as in-between spaces without a clear rule or places of pure sovereign and policing powers. These discourses emphasize the aspect of discontinuity with liberal rule, stressing the lack of the rule of law. Liberal rule appears to have the potential to restore fundamental liberties. At the core of these liberal discourses is the invention of liberal and illiberal rule as distinct and contrary ways of governing with the implication that safeguarding liberties is possible through return to liberal rule and the pursuit of the rule of law. A critical analysis of the rule of law provides a different viewpoint for the infringement of liberties. The rule of law itself provides the framework for the infringement of liberties and the legal order itself prevents access to liberties. Hence the infringement of liberties is rooted within liberal rule. The limitation of liberties is not a paradoxical state of liberal rule, but liberal discourses conceal the inherent violence of the rule of law and political rule. Both liberal and illiberal effects are produced though the same, regular democratic and legal processes of liberal democracies. In this sense, the distinction between liberal and illiberal rule as distinct ways of governing is not tenable. The infringement of liberties is a routine liberal practice. This chapter will scrutinize liberal thought and its core invention of liberal and illiberal rule as distinct ways of governing, and propose to collapse this distinction by focusing on the rule of law and its role in limiting liberties. The chapter outline is as follows: The first part, Discourses on liberal rule, will analyze the role of security and liberties, the role of the exception and their purpose in setting clear boundaries between liberal and illiberal rule. The second part, Practices of liberal rule, will propose an
alternative view, namely viewing illiberal practices as an ordinary part of liberal rule and especially investigating the rule of law in establishing an illiberal order.
