ABSTRACT
This chapter contrasts illiberalism with the rule of law as they affect attitudes to power. It distinguishes two illiberal tendencies – one that seeks to eliminate power, the other that seeks to concentrate and unshackle it. It then specifies a particular (but deliberately unoriginal) version of the ideal of the rule of law: that it should temper power, and render it unavailable for arbitrary exercise. The chapter then discusses elective affinities between liberal ideals and the rule of law. The former depend on achievement of the latter. By contrast, eliminationist illiberalism seeks to do away with differentials of power altogether, while “unbinding” forms seek to concentrate power in the state and remove the independence of all sorts of intermediary forces, institutions, and groupings. Often both forms end in the same place.
The chapter then discusses illiberal attempts to use law for illiberal purposes, rather than openly reject or bypass it. Some of these ways are simply fraudulent. Others are real but intentionally and systematically illiberal; still others appear in subordinate, but not always ineffectual, positions in “Dual States.” The chapter argues that notwithstanding pretenses and appearances, these illiberal devices are typically best viewed not as forms of rule of law – illiberal, authoritarian, or otherwise – but as its foes.
