Tempering Power

Martin Krygier 

University of New South Wales (UNSW) - Faculty of Law

December 21, 2015

Adams, Ballin and Meuwese eds., Bridging idealism and realism in constitutionalism and Rule of Law, Cambridge University Press, 2016, Forthcoming 

UNSW Law Research Paper No. 2015-80 

Abstract:    
Realism and idealism do better together than apart, and not merely as separate and independent viewpoints that might be gathered together but as interdependent ingredients of a whole that is generally more satisfactory than the sum of its parts taken separately. Realistic-idealism is not an oxymoron, but a salutary combination. Ideals are part of the human world. ‘Realism’ that does not take their existence and significance into account is empirically impoverished and programmatically unhelpful. Conversely, idealism is at worst empty or at best Utopian, if undisciplined by the real. Utopias might have their attractions and uses as regulative principles, but not as practical ideals, intended to be made good (even if only partially) in the real world. And constitutionalism and the rule of law are intensely practical ideals.

Though closely related, they are not identical. So the first section of this article sketches some areas of overlap and distinction between constitutionalism and the rule of law. The second suggests one central aim they have in common: hostility to arbitrariness in the exercise of power. I then discuss different interpretations of this value, to illustrate the mutual and indispensable inter-twinings of realism and idealism involved in its pursuit. One of these interpretations, usually captured with terms such as ‘limiting’, ‘curbing’, ‘restraining’ power, prides itself on its tough-minded realism, and in truth it does focus on significant aspects of reality that should never be ignored. At the same time, however, it misses fundamental elements of what it seeks to describe and at the same time diminishes an ideal central to it. More readily to encompass that ideal I introduce the idea of tempering power, rather than ‘limiting …’, etc., and propose some reasons to prefer this term. Central is its ready availability for larger purposes, more positive ideals, for constitutionalism and the rule of law, than the crimped, negative, implications of the concepts in common use. This more positive spin turns out more realistic as well, so long as it neither forgets nor undermines the realistic foundations on which it depends.

Number of Pages in PDF File: 22

Keywords: regionalism, idealism, rule of law, constitutionalism, legal theory

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2714692