A Review Essay

David Dyzenhaus’ The War Against Law is the most serious critique yet of the legal right’s assault on the rule of law. I have found the book extremely interesting, and I would like to devote the following lines to commending both the work itself and its author. Dyzenhaus, Professor of Law at the University of Toronto and originally from South Africa, is one of the few, if not the only, renowned legal scholars who has consistently devoted himself to developing a harsh and serious critique of “the new legal right” (see, for example, here and here). This new book is a critical reflection – both optimistic and skeptical – on the state of constitutionalism in our time. Ultimately, his approach is based on the author’s own life experience. As he explains, he has learnt that “while the law can be used, as it was in apartheid South Africa, as an instrument of oppression and discrimination, it also provides a source for resistance” (7).

If I had to summarize the book in just a few lines, I would say that it is mainly aimed at presenting and critically examining the legal “new right” that permeates (and taints) contemporary legal discourse, in short: Common Good Constitutionalism.¹⁾ In the name of a critique of “liberal elites”, this view advocates for strong executive power, free from any checks and balances (judicial or legislative), while also opposing international law and the discourse on human rights. According to Dyzenhaus, the contemporary “legal right” is represented by scholars like Adrian Vermeule of Harvard,²⁾ as well as by a number of “Oxford professors”, such as John Finnis and Richard Ekins (and politicians such as Nigel Farage and organizations such as the Judicial Power Project³⁾ in the United Kingdom). Moreover, the book suggests that this contemporary legal vision is the heir to a long tradition that includes authors such as Alasdair MacIntyre, and even earlier writers such as Eric Voegelin, Carl Schmitt, and numerous others. All of them, as we shall see, appear to be working towards a legal world with authoritarian (one could say Schmittian) features and based on a strong conception of the good.

The Rwanda Act and the British Legal Debate

The War Against Law originates from, and is structured around, an analysis of a particular (cruel) law passed in the United Kingdom: the Rwanda Act of 2024. The law required that “asylum seekers who arrived in the UK be summarily transferred to Rwanda”. The norm “stripped these seekers of the rights they would otherwise have under both UK and international law in order to make their forced ‘relocation’ unreviewable by judges” (ix). An important legal point that Dyzenhaus draws from his analysis of the Rwanda Act (which is fully consistent with the author’s previous work) is the following: Parliament may formally pass a law, but this does not preclude that law from being deemed unconstitutional if it undermines the rule of law (i.e., here and here). Indeed, Dyzenhaus has long maintained that legality cannot be reduced to formal validity of legal rules. Rather, it also depends on respect for the fundamental principles of the rule of law.

Dyzenhaus does not advocate a “thin” or merely formal conception of the rule of law (generality, non-contradiction), but rather, like Ronald Dworkin, a “thicker” version of it (one that includes, for example, the protection of fundamental rights, equality before the law, judicial independence…).⁴⁾ In advancing this position, Dyzenhaus also intervenes in a long-standing debate within British legal theory. He argues for moving beyond the kind of formal approach to the rule of law favored by authors such as Lon Fuller. At the same time, he questions A.V. Dicey’s renowned view of parliamentary sovereignty (63). In this latter respect, he challenges Dicey’s contrast between parliamentary sovereignty and the rule of law, arguing (in a way, like Tom Bingham) that both elements are integral to the English constitution and that neither can be considered subordinate to the other (136, 167).

From this perspective, Parliament cannot legislate in ways that undermine the very legal conditions that make its own authority possible (or, as an important example, his support of the Belmarsh 2004 decision, based on the Human Rights Act 1998). It is thus clear that the debates Dyzenhaus presents regarding certain canonically held ideas of British constitutionalism provide the framework for Dyzenhaus’s contemporary critique of the new legal right. He takes those debates as a starting point from which to challenge the new illiberal doctrine (a position he describes as “a tale of a parallel universe”), which maintains that English judges must fundamentally submit to the legislature and the executive.

Common Good Constitutionalism, and Illiberal Democracies

The book’s initial focus – the analysis of the Rwanda Act and its implications – naturally leads Dyzenhaus towards the more ambitious objective he pursues in his work, namely the critical analysis of Common Good Constitutionalism (also the title of a book published by Adrian Vermeule in 2022).⁵⁾ Dyzenhaus defines Common Good Constitutionalism as a “reactionary and illiberal ideology of an elite of lawyers and their allies, whose efforts will clear the way for the power of the state to be used to enforce that ideology” (x). The aim of this view, he claims, is to allow “the highest reaches of government to rule by fiat, unchecked by the judiciary and the legislature. One gets, in short, executive rule” (x). The “common good” is achieved only when the pluralism associated with liberal democracies is eradicated, and the ruling leader “promulgates the common good” (2).⁶⁾

Characterized in this way, Common Good Constitutionalism appears as a political/legal conception in tension with democracy. This assertion, however, would likely be resisted by those who promote or sympathize with this doctrine. After all, they might argue most of the (authoritarian) governments they support have generally remained in office through legal and constitutional changes rather than through coups d’état or other violent means. However, the “trick” lies in the way they define and practice democracy.

In his book, Dyzenhaus shows that what these right-wing politicians and ideologues actually defend is not “democracy” but, if anything, a degraded version of it. This is a particular version of democracy that the former Hungarian leader Viktor Orbán proudly defined using the concept of an “illiberal democracy”. As Dyzenhaus notes, “common good advocates don’t have to abandon democracy, at least in name, which is why they can put forward a position that combines democracy with Schmitt, a command model of law, illiberalism and anti-positivism.” (241) For them, there is no need to “introduce anything more authoritarian, because illiberal democracy suffices.” In fact, the example of Hungary under Orbán clearly illustrates what such a policy can entail, in relation to the basic institutions of a constitutional democracy. As we know, Orbán’s government “packed the Constitutional Court, limited opposition media access by politicizing state-run media and by coopting much of the private media, and gerrymandered electoral districts to lock in the ruling party’s control of parliament.” (242) This degree of control, Dyzenhaus claims, does little more than “provide a façade of democracy over the blunt instrument of unconstrained executive power” (ibid).

In line with these concerns, the author of The War Against Law challenges the obsession he observes within contemporary constitutional theory with the tension between Parliament and the judiciary, which, in his view, reflects a misunderstanding of the type and gravity of the problems we face today (see also here). This prevailing obsession can be recognized, for example, in the British constitutional debate, which appears (still) divided between political constitutionalism (which is critical of judicial supremacy), and legal constitutionalism (which tends to defend it), or in the American version of this academic discussion, where scholarship tends to be divided between those who defend judicial review in its traditional form, and those who persistently challenge the “counter-majoritarian” nature of constitutional review. In the face of such positions, which seem now somehow outdated, the author of The War Against Law considers that the major confrontation that distinguishes the current state of constitutionalism is a different one, which he defines as “the executive versus the rule of law”.

This renewed tension (executive power versus rule of law) stems from the willingness of many political leaders and academics of our time to favor the concentration of power at almost any cost. In this way, they echo a discourse with clear Schmittian overtones. According to this Schmittian perspective, as Dyzenhaus reminds us, “judges are incapable of resolving the political disputes that face the person who occupies the role of the guardian of the constitution.” For Schmitt, such disputes “have to be resolved not by a higher authority but by what he called a ‘neutral third’, in his view, the President of the Reich because he alone could take political decisions in the name of the ‘whole of the political unity’ of the German people. On this point, for Schmitt… the President has a democratic legitimacy that judges lack” (245).

I would point out, however, whilst strongly agreeing with Dyzenhaus’s position, that the most important debate I see in our time (or, at least, one that is just as relevant as the previous one) concerns a different controversy, one that transcends the “three branches of government”. As I understand it, in order to properly understand the current crisis of democratic constitutionalism, we need to go well beyond the question of which of the three branches of government should have more or less power. As I have argued in previous works (though I shall not elaborate on them here), the main concern of this era ought to go beyond “the framework of constitutionalism” and its difficulties, to focus on the current “democratic problem” (see here and here). The problem is that, for decades, We the People has lost all effective power to govern itself, make decisions, and control elected authorities. In this sense, democracy (as collective self-government) appears alien to the effective decision-making process: as if democracy and constitutionalism were two unrelated spheres, or – more seriously – as if the former had been finally absorbed by the latter. Of course, in this context, it is certainly true that the executive has become the main threat to our constitutional system; that the legislature has been sometimes reduced to an institution at the service of the executive (or under attack from it); and that the judiciary tends to be co-opted by the President or the Prime Minister. Faced with this tragedy, however, the priority must not only be to halt constitutional “erosion” (by strengthening the role of oversight institutions), but also – or fundamentally – to restore the place of We the People in our constitutional practice.

How to Respond to Moral Panic

For Dyzenhaus, the passage of the Rwanda Act was largely made possible by the “moral panic” fostered around immigration and asylum seekers. He further suggests that these collective fears were mobilized to advance the idea that the state should regain control of its borders at any cost, thus justifying exceptional measures incompatible with the rule of law. Towards the end of the book, Dyzenhaus expands on this argument, to show how the strategy of generating and exploiting “moral panic” (ultimately in defense of a stronger executive) has become common in the face of a variety of issues: immigration (with the Rwanda Act being the central example); gender identity and the rights of trans people; sex education; abortion; women’s rights and, in general, the so-called “culture wars”, where certain groups are presented as a danger to the family, children or the nation (249-250). In this respect, and as a conclusion to his book, he lays the foundations for an alternative approach to tackling this situation.

What, then, is to be done in the face of the difficult (political/economic/cultural/legal/moral) situation we face today? Without setting out a program of his own, Dyzenhaus presents some suggestions on the matter, including self-critical reflections regarding the ways in which democratic liberalism has responded to these challenges thus far. He argues, first and foremost, that the “war against law” also relates to “the inability of liberal democrats thus far to respond to challenges that face the majority of people” (249). Then, and as an initial response to this worrisome situation, Dyzenhaus proposes the construction of an egalitarian alternative, based on a substantive moral vision. In his own words: “To fight back, to fight against having their particular substantive conception of the good forced upon us, we will need more than a commitment to the rule of law, human rights and democracy. Such commitments will have to be anchored in a moral vision that provides a genuine alternative… it must show how that framework of the rule of law and human rights cannot be sustained without a profound commitment to the greater social, economic and political equality for all. This is the challenge” (250).

I find much with which to agree in these concluding lines of The War Against Law. We – legal scholars and constitutionalists – need to go beyond the law, to reflect on the law itself, and on how to transform it into something different and more just. We need to focus, I would add, on the structural conditions of democracy. At the same time, however, I would qualify this point by noting that the aim must also be to move towards a more specific and ambitious conception of democracy. I have in mind a “dialogical” conception of democracy or, as I once defined it, a “conversation amongst equals” (Gargarella 2023). Such an approach rests upon three fundamental pillars: public debate, social inclusion, and “common equality”. Writing in a different context (institutionally more robust and less marked by the radical inequalities characteristic of the region in which I live, Latin America), Dyzenhaus favors a different form of egalitarianism, based on other pillars: essentially, legality, the rule of law, and judicial oversight geared towards the defense of basic human rights.

I want to conclude this review of The War Against Law by returning to the beginning. I wish to thank and congratulate the author, my friend David Dyzenhaus, when much of our legal scholarship appears distracted by minor constitutional issues, oblivious to the devastating effects of the onslaught of the legal “new right”, or silent in the face of the upheaval that democratic constitutionalism is currently undergoing, Dyzenhaus has chosen to criticize, with seriousness and rigor, authors and schools of thought (many of whom are his close colleagues), recognizing, as almost no one else does, the enormous democratic significance of what is at stake today, against the backdrop of the current crisis.