Chapter 9

Sociology of the Rule of Law: Power, Legality and

Jiří Přibáň

The rule of law is one of the most inflationary concepts used by political leaders, policymakers,

judges and other legal professions, and theorists of politics and law alike. It is intrinsic part of

scholarly arguments as much as fierce political battles. It is an invitation to the most abstract

speculations on the nature of justice and fairness as much as a specific criterion of

accountability and governance promoted by policy makers at local, national and global levels.

The World Bank and International Monetary Fund list the rule of law as a good governance

condition of loan grants for the recipient countries, political and legal philosophers treat it as a

universal human good, and campaigners all around the world use it as a critical tool to address

manifold political and social ills and injustices.

The rule of law is treated as a value to be universally praised as much as a particular ideology

to be debunked and replaced by substantive political and legal alternatives. Economic liberals

inspired by F.A. Hayek's idea of the rule of law as a spontaneously evolving social order

(Hayek 1982, 22) warn against its decline because of the ever-expanding welfare state while

scholars inspired by the Critical Legal Studies movement continue criticizing the concept as

part of a general critique of political liberalism (Unger 1976, 192).

Formal justice is contrasted to the social justice and equality before the law finds its opposite

in social inequalities. For some, a sociology of the rule of law is to mainly be a critical job of

unmasking political interests and social injustices under the facade of legal neutrality. For

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others, the idea of the rule of law as a fraud is theoretically simplistic and misleading to the

point of intellectual and political nihilism blocking the possibility to understand why the rule

of law is an essential concept of theoretical knowledge and an important tool of practical

policies promoted at local, national and global levels.

In this chapter, I, therefore, initially distinguish between the doctrinal and sociological

concept of the rule of law and briefly comment on the anthropological notion of the rule as one

of human universals behind the constitution of a societal order. I subsequently discuss some

sociological theories of the rule of law and analyze the rule of law as a double coded genealogy

of societal power. Following the legal coding of power, I address the problem of legitimation

by legality and its transformation to the problem of legitimation of legality itself. In this

analysis, I contrast the formal and substantive concepts of the rule of law and show how the

value-based legitimation of the rule of law paradoxically leads to the structural tensions, value

conflicts and de-legitimation of the rule of law. I conclude by arguing that this legitimation/de-

legitimation loop between the formal and substantive rule of law shows the general societal

function of the rule of law transforming the systemic facts of power to the legitimizing values

of the political system.

Strong ideas, weak facts: on the philosophical, doctrinal and sociological concepts of the

rule of law

The rule of law is both a metaphysical idea and a social index. As such, it is studied by legal

and political scientists and incorporated by philosophers in their prescriptions and speculations.

Some believe it is the first stone of civilisation while others criticize it as an example of

hypocrisy of the very same civilisation. Rousseau's overture about chains of civilisation of

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which the rule of law is a prominent symbol is being replayed in many different

instrumentations of contemporary critical theory and philosophy.

Contrary to this tune, the odes to joy continue praising rationally organised and progressing

societies under the rule of law expressing the Enlightenment ideals of humanity. The rule of

law is treated as another name of legitimate government respecting civil order and equal rights

and promoting democratic values and public accountability of political power. The legitimate

rule of law finds its opposite in illegitimacies of arbitrary power which eventually breaks down

public trust and replaces it with private fear of tyrannical government (for an overview of

different approaches to the rule of law, see recent edited volumes of Costa and Zolo 2007;

Sellers and Tomaszewski 2010).

The rule of law as a political ideal of a state governed by the sovereign legal constitution

(Rubin 2005) representing moral ideals of peace, civility and equal rights is intrinsic part of

the Kantian legacy. This ideal is close to the doctrine of a constitutional democratic state and

the moral idea of justice and civil liberties. Nevertheless, the rule of law also can be formulated

in a morally and politically minimalistic sense as the state prohibited by laws from the arbitrary

use of power. The rule of law thus considers laws a priori condition of state power and its

exclusive criteria and limitation of exercise. This state, rather than protecting what is morally

right and just, limits its function to the enforcement of the lawful order within which it has to

operate itself (Kirchheimer 1969).

However, even this technical and functionalist concept of the rule of law has a profound

civilizing impact on society because the law inhibits the exercise of political power and protects

citizens against it (Thompson 1975, 266). The scale between the idealistic maximalism and

realistic minimalism of the rule of law, therefore, offers opportunities for both the apotheosis

and deconstruction of the very phrase and its cultural and political contextualisation.

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 Students in the United Kingdom typically start with Dicey's three aspects of the rule of law

as the constitutional exercise of power, equality of all citizens before the law and access to the

independent courts (Dicey 1959, 195-6) even though this definition is inaccurate and parochial

(Shklar 1987: 5). Alternative explorations include more recent works by Alexy, Bobbio,

Cohen, Raz, Shklar and many other philosophers and theorists investing their most general

ideas about law and justice into the rule of law concept.

The rule of law is so prominently associated with political and legal philosophies and

theories that sociological and social theoretical explorations of the rule of law are

comparatively scarce and limited and, according to some, neglected despite the prominence of

positive law in modern politics and society (Krygier 2009, 45). The weakness of sociology and

social theory is contrasted to the long tradition of juridical and political theories of the rule of

law.

Reluctance to tackle the rule of law as a problem of the sociology of law and socio-legal

studies beyond the most general and often critical remarks on law's formality or ideology is

even more surprising because of the long tradition highlighting the distinction between

methodologies of social and legal sciences. As early as the publication of Georg Jellinek's

General Theory of the State at the turn of the twentieth century (1900), jurists and sociologists

distinguished between the state as a legally constituted organisation exclusively regulated by

public law and a social organization regulating specific social relations and actions. Legal

concepts of the Rechtsstaat - the state as a legal person and roughly translatable to English as

the rule of law were methodologically separated from sociological perspectives focusing on

historical, political and cultural contexts of state organisation.

The state's normative unity is typically contrasted to its social and political pluralism

(Runciman 1997, 64). For centuries, the state was perceived as the political organization

ultimately integrating and regulating the totality of social life. The 'political' had the same

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meaning as the 'social'. However, in recent times, this domination of political and legal

perspectives regarding the state has shifted and 'the state as political system is now a sub-

system in relation to the social system' (Bobbio 1989, 54).

Despite this variety of perspectives and methodologies, disciplines of sociology, theory and

philosophy of law share a set of questions regarding the rule of law which illuminates its

importance for the social systems of positive law and politics as a principle, doctrine and

formula of power legitimation. Is law the first protection against the arbitrary exercise of

power, or a mere technique of the same power? Is the rule of law the most important political

virtue and moral obligation of all citizens as much as the first principle of the democratic state

limited by its legal constitution? Alternatively, is it a Hobbesian machina machinarum

constituting the artificial society - the sovereign state in which law is an instrument of social

control and a guarantee of civil order? Using Edward Coke's expression, what function does

law as 'the artificial reason' (Smith 2014, 154) have in this artificial society? Is it a value neutral

technique of real government, or the most precious value of an ideal polity? And what about

more recent conceptualisations of Unrechtsstaat - a state officially governed by the laws which,

nevertheless, contradict the basic concept of justice as equality before the law?

The rule of rule and societal order: on the anthropology of human universals, poiesis and

autopoiesis in law

The question whether sociologists of law should study the rule of law as part of the study of

legal or social sciences depends on the difference between the question of what law is and how

it operates in society. Defining law as the sovereign's command or the system of rules opens

the possibility to understand its normative structure, different modes of interpretation,

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enforcement and change. On the other hand, defining law as a system of social organisation

and communication opens the possibility to comprehend law's operations in society, their

understanding and effects. While moral and political philosophers consider the rule of law an

ideal form of just government and legal theorists examine its normative, argumentative and

interpretive structures, sociologists of law focus on its empirical context, historical emergence,

cultural differences, self-identifications and societal evolution (Jensen and Heller 2003).

The weakness of the sociological research of the rule of law and the prevalence of doctrinal

and speculative approaches is even more striking due to the fact that law was a substantive

element in sociological thinking of a number of theorists, not least Emile Durkheim and Max

Weber, and because the concept of rule is generally considered one of key human universals

by cultural and social anthropology. The requirement of a rule determines the distinction

between culture and nature and the constitution of a human-made order. The prohibition of

incest was analysed by Lévi-Strauss as 'the rule of rule' and considered one of the three

universals of human culture, together with reciprocity as the most immediate form overcoming

the opposition between me and the other and the gift as a value transfer transforming the

involved persons into partners (Lévi-Strauss 1969, ch.3-5).

Anthropologists and sociologists treat any rule in general and the rule of law in particular

as the order creating capacity which maintains the social structure. The meaning of the rule,

reciprocity and gift may vary in tribal pre-modern and complex post-modern societies but, as

Zygmunt Bauman, recalling the work of Lévi-Strauss, commented: 'It is above all the rule

which cuts off a parcel of the natural universe and transforms it into the venue of cultural

praxis.' (Bauman 1999, 98).

Cultural praxis has the order creating capacity which maintains the social structure. The

rules created by humans thus separate the order of society from the chaos of the rest of the

universe. These rules of order simultaneously delineate the unregulated chaos and operate as

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rules of exclusion as 'fundamental, pre-conditioning applicability of all other rules.' (Bauman

1999, 99).

The constitution of a societal order by the application of the rule is both poietic in the sense

of the order's creation and autopoietic in the sense of the rule's self-referentiality based on the

binary opposition between the self-ruled order and the outside unruly chaos of society's

environment. The self-constitution of the rule defines what is included and excluded from its

order (Luhmann 1995, 34-6).

The rule of law, therefore, has functional meaning as the constitution of a human order and

symbolic meaning as the identification of a collective self living under this rule and in this

order. The classic constitutional imaginary of society as one ethnos living on the same topos

under the rule of nomos had been poetically formulated by Thucydides. In Pericles's Funeral

Oration, the Athenians are described as an equal and free people living under the rule of law.

The question How are we governed? is inseparable from the question Who are we? The

imaginary of society as unity defined by legal rights and guaranteed by political force informs

the classical world as much as the rise of modern nations and nationalisms evolving through

liberal and republican constitutional regimes.

A sociological perspective has to address these parallel poietic and autopoietic operations

of the rule of law. It constitutes a societal order by creating its normativity and responding to

the question of collective identity. At the same time, the rule of law limits its operations by

differentiating from the rest of society and only responding to the specific functions of law and

politics. Societal constitution of the rule of law thus goes hand in hand with functional

differentiation of the system of positive law. Sociological inquiries into the rule of law

subsequently need to study the social context of law as much as the legal context of society.

Mechanisms of social and political control through the rule of law are as important as society's

self-constituted order of non-legal rules and norms.

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A sociological critique of the rule of law doctrine: on social telos and values in law

In the context of sociological criticisms of legal formalism and positivism, it is paradoxical that

Jeremy Bentham's famous definition of law as the sovereign's command was intended to

exactly treat law as a social and political phenomenon without further moral and transcendental

qualifications of its validity. The strict separation of law and morality removes both the

transcendental cloud of natural law and the immanent burden of moral traditions and

conventions from the system of positive law.

Bentham's definition is inadequate, but its simplicity still remains tempting to the adherents

and critics of legal positivism and utilitarianism alike. It separates the legal method from

morality and considers rational formalism of positive law the most powerful protection against

the arbitrary use of political power. According to this legal positivist tradition and its

appropriation by political theory of democracy, the modern democratic rule of law means that

the people as the political sovereign is governing itself through the medium of legality (Maus

2018).

According to the legal and political positivist view, the rule of law's societal value depends

on its technical capacity to limit political power. Philosophers and theorists of law and politics

treat the rule of law as 'an institutional ideal' (Palombella 2010) and contrast it to the arbitrary

exercise of power in the spirit of the classical distinctions between will and reason, pleasure

and duty, egotism and responsibility or randomness and predictability.

Nevertheless, this formalist and positivist concept of the rule of law has been criticized by

moral normativism of all kinds claiming that law's legitimacy depends on its conformity to the

superior moral norms and principles. Furthermore, it has always been challenged by

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sociological positivism claiming that the law's form is already predetermined by spontaneous

forces of societal evolution. In the last three decades, the positivist canon of the rule of law has

been challenged by some social theorists and sociologists of law, most notably Roger

Cotterrell, Martin Krygier and Brian Tamanaha.

Tamanaha mainly highlights the historical, theoretical and political context of the rule of

law doctrine and particularly shows its social transformation from a political rhetoric to the

societal practice and a universal good (Tamanaha 2004, 137).

Unlike Tamanaha's semi-detached conceptual and doctrinal analysis, Cotterrell, who points

to the similarities between the English idea of the rule of law and the continental doctrine of

Rechtstaat, engages in a sociologically critical analysis of Dicey's rule of law doctrine and

adopts Franz Neumann's historical study of societal transformations of the rule of law (1986),

especially in the context of industrialization and the rise of corporate society (Cotterrell 1996,

452). He emphasizes the fact that the rule of law idea has both legal meaning and social

importance and, furthermore, changes according to the changing social and economic

conditions and experiences.

Cotterrell's sociological and political jurisprudence gradually evolved into a comprehensive

sociology of the rule of law as a Durkheimian index of social solidarity which signifies the

socially meaningful and politically legitimate legal regulation (Cotterrell 1989; 1995).

According to this view,

'The Rule of Law is not an idea too vacuous to be taken seriously. Its seemingly unsatisfactory character derives

partly from being considered merely as a set of institutional or procedural requirements divorced from a broader

moral context. When the values of equality, individual autonomy and security implicit in it are given appropriate

prominence, it ceases to appear as a limited requirement of procedural propriety and appears instead as an

ambitious programme for responsible and responsive government.' (Cotterrell 1996: 470).

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 Cotterrell treats the rule of law as a constitutive element of the 'law's community of values'

(1995; 2017). Critically drawing on this practical and moral dimension of the rule of law,

Krygier criticizes failures and narrowness of analytical jurisprudence to promote the

sociological teleology of the rule of law. His 'teleology before anatomy' approach (Krygier

2019: 111) is meant to move beyond typical analyses of legal principles, normative and

institutional frameworks and lists of the rule of law conditions. Instead, Krygier promotes

teleology and an analysis of societal goals immanent in the concept of the rule of law to arrive

at a comprehensive sociology of the rule of law. According to him,

'Teleological accounts of an ideal like the rule of law begin by seeking to identify the predicament or

circumstances thought to require attention and the value or end that any solution is hoped to serve, its point or

telos, in relation to that predicament or those circumstances.' (Krygier 2019, 112).

Krygier's perspective is functionalist in the sense that it asks 'what we might want the rule

of law for' (Krygier 2009: 46) and what needs to happen in society to achieve it. According to

this view, legal institutions need to be analysed in the social context in which they function and

against the background of cultural differences affecting the allegedly universal concept of the

rule of law. Instead of normative idealism, Krygier promotes factual realism examining specific

historical, social and cultural conditions and different ways in which particular societies adopt

universal political and legal principles and use them to deal with their particular problems.

The teleological analysis as a preliminary of any future sociology of the rule of law actually

is close to the legal theoretical views of the rule of law. Fuller's eight conditions of the rule of

law defined as 'the internal morality of law' are not merely 'anatomical'. The requirement of

laws to be general, made public, non-retroactive, comprehensible, non-contradictory, possible

to perform, relatively stable and officially enacted in ways congruent with declared rules

(Fuller 1969, 46-91) is not formulated as a condition of just law. It, rather, makes laws socially

10
operative and functional, that is efficient in terms of the law's 'enterprise of subjecting human

conduct to the governance of rules' (Fuller 1969, 96).

In fact, this general sociological functionalism already permeated the Hart-Fuller debate and

informs more recent accounts of the rule of law's 'virtue' (Raz 1979). Apart from institutional

frameworks and general principles, the rule of law is expected to 'perform' its role and 'produce

results' in society. The combination of entrepreneurial functionalism and virtue analysis is

adopted by sociological methodologies which, rather than a first principle, take the rule of law

as a variable social achievement relative to cultural and social conditions of different polities.

In this sense, the rule of law

'is in relatively good order insofar as the exercise of political, social, and economic power in a society is effectively

tempered, constrained, and channelled to a significant extent by and in accordance with law, so that non-arbitrary

exercises of such powers are relatively routine, while other sorts, such as lawless, capricious, and wilful exercises

of power, routinely occur less.' (Krygier 2019, 125-6).

The rule of law as a genealogy of power

Understanding the rule of law as social practice and cultural value or tradition invites adopting

the canonical socio-legal distinctions between law in books and law in action of living law (see

Ehrlich [1936]1975; Pound 1910; Přibáň 2017). Instead of merely focusing on the power

limiting and tempering function of the rule of law, a sociological perspective needs to elaborate

on the rule of law in action and analyze it as a complex craft of social organization. It also

needs to accommodate the other side of the rule of law, namely the possibility to use legality

as an instrument of governing power and its expansion.

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 Sociology always has been studying networks of power relations and institutionalised forms

of domination including the rule of law and legal regulation. Durkheim's concepts of social

solidarity and collective consciousness (1933) and Weber's typology of legitimacy (1968, 212-

99) examine these institutions and relations in which members of society can enforce their will

and materialize their individual and collective interests through different forms of legal

regulation.

Instead of treating power in the spirit of legal and moral philosophy as a political risk or

danger that needs to be limited and tamed, sociology of law reformulates the concept of power

and its legal form as a productive societal force (Přibáň 2018, 33). It is not just a one-sided

structure of physical coercion which would require nothing but submission and obedience by

those subjected to the power and the free will exercised by the powerful.

Power requires the possibility of choice and selection of action on the side of the powerful

as much as those subjected to their power. Niklas Luhmann formulated the socially expansive

operation of power by stating that it 'increases with freedom on both sides, and, for example,

in any given society, in proportion to the alternatives that society creates.' (Luhmann 2017, 12).

In this basic power structure, events can always go either according to, or against, the intent,

expectation and will of both the powerful and their subjects. This contingency corresponds to

the complexity of functionally differentiated modern society which is structurally impossible

to explain by simple communication between the commanding sovereign and the obedient

subjects.

Luhmann states that this possibility of forming 'complementary avoidance alternatives' is

'power in its raw state' and shows that it has the structure of a binary code (2017, 145). This

binary code of power/powerless is behind the basic operation of the political system, namely

the enforcement of collectively binding decisions and steering the polity. It determines the

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system's capacity to deliver policy goals. Power is not an ultimate goal of politics. It is its

medium of communication.

The modern political system monopolized power and initially concentrated it in the

sovereign state. Through this process of monopolization, the system excluded all other societal

forces and codes, such as the scientific truth, economic profit and religious faith, from the realm

of politics. Political power, potestas, had to be distinguished from societal power, potentia, to

formalize and institutionalize societal operations of modern politics (Přibáň 2018, 31).

Societal power represents an externality of the political system which involves the risk of

its permanent destabilization by non-political interventions into political operations. Power of

scientific truth represents the risk of technocracy, power of economic profit represents the risk

of plutocracy, power of religious faith represents the risk of theocracy etc. Modern democratic

political systems, therefore, had to respond to these risks by the monopolization of power by

political institutions and exclusion of other, non-political forces from political operations. As

Luhmann comments, 'society's political system takes over the creation, administration and

control of power for society.' (Luhmann 2017, 156).

The function of power is to eliminate the destructive effects of societal forces and violence

associated with them (Luhmann 2017, 161). The modern political system is thus self-

constituted by its self-limitation and functional differentiation from other social systems. It has

to distinguish between those forms of societal power which can be transformed into political

power and other forms which must be excluded from politics as its externalities. The biggest

political problem of modern society thus consists of keeping the vast majority of societal power

outside politics and constituting the political limits of politicisation and depoliticisation of

societal power (Tamanaha 2006).

The political system differentiates between political and non-political power in order to

protect the power code of the political system from degenerating into physical coercion and

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violence (Luhmann 2017, 170). This is complicated by the tendency of democratic societies to

increasingly apply democratic procedures and values outside the political system. This societal

expansion of democratic politics and democratisation of non-political social operations

represents a typically modern risk of political totalization of society.

In modern complex and democratically organised societies, the power/powerless coding,

nevertheless, also can lead to excessive levels of contingency and therefore requires a

secondary coding and normative framing of decision-making processes. Politically organised

and publicly exercised power subsequently gets the secondary coding by the binary code of

legality and the right/wrong distinction stabilising the performance of power operations.

This sociological reformulation of the distinction between the rule of powerful persons and

the rule of impersonal laws does not have the normative value and virtue praised by

philosophers and sociologists of law alike. Instead, it shows that political power is

insufficiently organised by the political system and needs to be further clarified and expanded

by the impersonal code of legality and differentiation between lawful and unlawful power

(King and Thornhill 2006). Political power thus permanently selects between matters to be

governed and those to be left out from politics (Barker 1990, 20) and this selection is

subsequently regulated by legal rules.

Indeed, unlawful power is still power and its double coding of power/powerless and

lawful/unlawful means that the two codes are different and 'might' does not equal 'right' and

vice versa (Luhmann 2017, 173). However, it is exactly this secondary coding by legality that

transforms power of the politically constituted system into the rule of constitutive law.

Now, legality can be used as both the limitation and expansion of power encoded in the

general principle of the rule of law. The powerless can use legality for their empowerment

(Teubner 2006, 327). The powerful, however, can enhance their power by formulating it in the

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very same code of legality and thus keep their subjects legally obliged to accept and follow

their decisions.

The modern political system paradoxically expands power by its legal limitation (Thornhill

2011, 181). The power of the powerful is strengthened by its legal justification, yet they lose

to the powerless if these are in the right. The first principle of the rule of law that nobody is

exempt from it is replaced by the sovereignty of the legal constitution incorporating the coding

of right and wrong in the language of constitutional principles and rights (Přibáň 2018, 41).

The rule of law as a legitimation formula

Every power calls for legitimacy including modern political power both limited by and

expanding through the code of legality. What is then the rule of law's telos? The legitimation

of power.

Max Weber's ideal type of legitimation by legality represents modern rationality as a force

of efficiency and purpose-oriented social action. His definition of the state as the monopoly of

the legitimate use of violence within a given territory may be criticised, yet its

conceptualisation of political power as the right to use coercive force within polity living on a

specific territory (Weber 1968, 952-3) highlights the inseparability of legality and legitimacy

of power.

The rule of law means that the conditions of legitimacy are generated from within society,

exclusively defined by legality, and cannot be formulated as its external foundations validated

by the God's commandments, the Rousseauian transcendental will - volonté générale, the

Aristotelian natural law and reason, the humanitarian universal values etc. They depend on

immanent structural coupling between the systems of positive law and politics.

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 The elimination of societal violence by its monopolization in the political system is achieved

by the transformation of effective power into the force of legal norms. Politically productive

power is reproduced as the rule of law and political realism is reformulated as idealism of

legality's capacity to use its general, impartial and impersonal rules to protect personal

autonomy, public order and international relations (Shklar 1964, 15-20).

The secondary coding of power by legality is historically associated with the emergence of

the sovereign constitutional state but it is not limited to its organization and applies to any

local, supranational and transnational political organization (Halliday and Shaffer 2015). After

all, the state is just one possible form of organizing people ruling over other people (Weber

1968, 56).

A sociology of the rule of law then needs to avoid the reductionist approaches to the problem

of legitimacy by legality typical of political sciences as much as the inflationary approaches

speculating on the conditions of legitimacy and its deficiencies popular among critical theories

and philosophies. Its job is to analyse the rule of law as a legitimation formula of modern

politics without overburdening the concept of power and its deontological context.

A sociological approach has to focus on the specific organizational subsystem connecting

the systems of positive law and politics and reformulate the classic distinction between might

and right as two distinct questions typically associated with the modern problem of legitimacy,

namely efficiency of power and its normative justification. The question of legitimacy of law

is then a matter of efficiency of legal regulation as much as its normative justification without

which the sovereign state or any other power organization's right to command and the civic

duty to obey these commands could not operate in society.

Modernity offers a number of examples that laws can provide an effective tool to dignify

and legitimize the will of a tyrant pretending to be acting within the framework of legality.

Law can become a repressive tool. Instead of the classical Aristotelian distinction between the

16
rule of law and men, modern society thus presents us with the paradox of the arbitrary rule of

men legitimized by the legal rule (Přibáň 2019, 147).

The political system's legitimacy depends on its capacity to deliver policy goals but the

secondary coding of legality turns the problem of legitimacy by law into the problem of

legitimacy of law and its rule. Shifting from the rule of law as a legitimation formula to the

legitimacy of the rule of law itself, the above discussed different concepts of the rule of law

can be analyzed in the context of a sociology of constitutionalism, legal values, and

constitutional, political and societal transitions (Carothers 2006).

The formal and technical concept of the rule of law drawing on the distinction between

arbitrary tyrannical rule and nonarbitrary power limited by law has its constitutional function

as a general form of government ruling by laws. Considering this civilizing impact of legal

formalism insufficient and prone to the power abuse, the substantive concept of the rule of law

draws on the values of political democracy and human rights. Instead of the universal force of

rationality in formal legality, the substantive rule of law represents a particular legitimation

formula of constitutional democratic politics of rights and freedoms which is distinguished

from the variety of non-democratic authoritarian government (Maravall and Przeworski 2003;

Přibáň 2012, 105).

The formalist concept of the rule of law is relatively applicable even to the authoritarian and

totalitarian regimes because their systems of positive law provide for some elements of social

predictability, certainty and stability. Indeed, every dictatorship has its system of positive law,

but one hardly would call them the rule of law because they effectively constitute 'a dual state'

(Fraenkel 1941) in which the ruling class is exempt from laws applicable to the rest of society.

Recent political and legal theories studying post-totalitarian and post-authoritarian societies,

therefore, introduced a concept of 'the unlawful state' (Unrechtsstaat) (Marxen and Werle

1999) to describe a system officially governed by laws but factually enacting repressive,

17
discriminatory and grossly unjust legal acts and judgements (Krygier and Czarnota 1999;

Priban and Young 1999).

The rule of law based on substantive democratic values is subsequently contrasted to the

legal formalism (Přibáň 2007, 156). Legitimation by the rule of law is reformulated as the legal

process of political liberalization and democratization. It is associated with the constitutional

democratic state based on the protection of human rights protected by an independent judiciary.

The rule of law is thus identified with the protection of these rights and principles of democratic

government (Dyzenhaus 1998; 1999).

The rule of law as societal value

The conflict between formalist and substantive theories of the rule of law is just another

formulation of the structural paradox of power legitimation in modern society. States and any

other organizations of political power legitimised by legal rules are determined by specific

historical and cultural values of different polities. At the same time, their legitimising values

and foundations are expected to have universal validity (Přibáň 2019, 140-3).

External moral values become the positive law's internal sources of self-legitimation and

jurisprudential matters 'are at their core issues of moral principles' (Dworkin 1977, 7). The

formal rule of law is replaced by substantive social values. Legislation and adjudication using

substantive arguments from supra-positive principles thus incorporate the vagueness of moral

concepts and values into positive law (Maus 2018, 84) and paradoxically compromise the

conceptual clarity and predictability associated with the formal concept of the rule of law and

its legitimation capacity.

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 Substantive moral principles and values have a dual function in the legal system. They

constitute the category of 'just law' which selects between legitimate and illegitimate legal

rules. At the same time, they protect morality from the legislated law by declaring the supra-

positive status for themselves. According to Ingeborg Maus, moral principles adjudicated by

top courts paradoxically weaken the limits of both the state and legal regulation because they

appeal to the social and common good and thus de-differentiate democratic legitimation and

moral foundations of law. The political consequence is the weakening social control by

democratic deliberation and the strengthening power of state institutions and its élites claiming

superior knowledge of moral principles as legitimation values (Maus 2018, 227-9).

The general tendency of modern society to replace formal and general legal rules and

reasoning by substantive social regulation and justification by specific interests and particular

needs disguised as public morality undermines democracy as self-government of the people by

the laws. Legitimation of the rule of law by substantive political values becomes a paradoxical

source of its de-legitimation because the original telos of the rule of law exactly was to achieve

political legitimacy by the basic separation of legal and moral judgements, reasoning and

concepts.

A sociology of the rule of law thus shows the contradiction between the general acceptance

of the rule of law as the common good and universally acknowledged value and the absence of

general agreement on what the concept exactly means and which specific values are actually

represented by it. This contradiction is further illuminated by the fact that the rule of law is not

just a policy to be implemented, but also a spontaneously evolving cultural practice and order

impossible to politically control and legally enforce. It is relative to political cultures and

histories and the universally appraised value of the rule of law may significantly differ between

particular political cultures.

19
 The political failure of the formal rule of law in modern political history resulted in its

substantiating by the values of political democracy, human rights and social justice. This

transformation of the rule of law into a morally substantive concept, nevertheless, replicates

the initial tension between law and morality in modern society which led to the constitution of

the rule of law as a legitimation formula of democratic politics. Instead of its de-

paradoxification and functionalisation, the supra-positive principles of the rule of law merely

replicate the original paradox of functionally differentiated modern society impossible to be

transcendentally legitimized.

Concluding remarks: transforming power facts to the legitimizing values

The legitimation/de-legitimation loop between the formal and substantive concepts of the rule

of law shows a general societal function of the rule of law transforming the systemic facts of

power into legitimizing values of the political system. This function is typical of the

constitutional state as much as the variety of forms of transnational law and politics.

In its telos of power legitimation by legality, the formal rule of law, initially expected to

eliminate all moral values from the political domain, paradoxically constitutes itself as societal

value because of its capacity to eliminate arbitrariness of the state or any other societal power

emerging in the systems of economy, science, religion, and so on.

Furthermore, the value of the rule of law is in the self-limitation of legality which prohibits

the system of positive law to expand and juridify other social systems. In other words, it shows

the limited capacity of legality to regulate the totality of social life.

Substantive theories of the rule of law cannot deny the value and legitimizing potential of

legal formalism. They, therefore, mainly seek to further qualify and normatively expand its

20
conditions of legitimacy. Sociologically understanding the rule of law subsequently requires

an analysis of the rule of law as a vehicle transforming societal values to the force of law and

vice versa.

Understanding the process of transvaluation of moral values by selecting them as supra-

positive foundations of the legal system is an essential task of sociological inquiries to the rule

of law. However, this job is no more essential than understanding how technical qualities of

positive law such as clarity, consistency, congruence, coherence, and non-contradiction

transform into societal values regulating the public life in particular and social reality in

general.

The rule of law is the first political principle opposing the arbitrary will of the stronger.

Externalizing its internal functional qualities of generality, clarity, coherence etc. as societal

values, the rule of law transforms itself into the ultimate legitimation formula of politics. It

operates as an efficient tool legitimizing power and the primary public good experienced as

cultural tradition and moral value itself.

However, the rule of law cultural tradition and societal practice is not insulated from other

values and traditions permeating its structures and operations. For the rule of law functionality,

internalizing external societal values is as important as externalizing its internal technical

qualities.

Understanding these complex operations and transformations of efficient techniques to

generally shared values and vice versa requires a general sociological analysis of the capacity

of specific social systems to internalize and operationalize external values as the internal

distinction between legitimacy and illegitimacies of the political and legal systems.

21
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