A new form of ‘autocratic legalism’ – a term coined by Kim Lane Scheppele – that relies on law rather than guns raises a serious challenge to democratic constitutionalism. While authors tend to focus on the ‘illiberal’ challenge, this article is concerned with its jurisprudential dimension: what exactly is wrong with autocratic legalism? That is, to what extent does legalism, understood as the formalistic and one-sided instrumentalization of law, represent a hollowed-out, defective, and potentially harmful theory of law? And if legalism is such a theory of law, perhaps prone to authoritarianism, whence can we draw the resources to flesh out a ‘non-legalistic’ and democratic conception of law instead? The setting of my argument is the so-called crisis of the rule of law in Poland, as reflected in a series of cases of the European Court of Human Rights and, in particular, the 2023 case of Wałęsa v Poland. The latter not only provides an admirable rejoinder to autocratic legalism but also allows visualizing an alternative dialogical conception. Pursuing this thread leads us to revisit Lon Fuller’s famous internal morality of law, which undergirds some of the Court’s reasoning. Still, the instrumental abuse of law requires a different diagnosis and remedy than Fuller provided, which leads one to expand on the idea of law’s limits beyond strictly moral ones. The dialogical and constitutively plural conception of law defended here does not introduce ‘more morality’ into law but, rather, reconceptualizes law beyond procedural and instrumental views and calls for a relational ethics.
Julen Etxabe (Thu,) studied this question.