A sitting justice reflects upon the authority of the Supreme Court—how that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it.

A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than “politicians in robes”—their ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions.

Stephen Breyer, drawing upon his experience as a Supreme Court justice, sounds a cautionary note. Mindful of the Court’s history, he suggests that the judiciary’s hard-won authority could be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, “no influence over either the sword or the purse,” the Court earned its authority by making decisions that have, over time, increased the public’s trust. If public trust is now in decline, one part of the solution is to promote better understandings of how the judiciary actually works: how judges adhere to their oaths and how they try to avoid considerations of politics and popularity.

Breyer warns that political intervention could itself further erode public trust. Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.

From the $700 billion bailout of the banking industry to president Barack Obama’s $787 billion stimulus package to the highly controversial passage of federal health-care reform, conservatives and concerned citizens alike have grown increasingly fearful of big government. Enter Nobel Prize–winning economist and political theorist F. A. Hayek, whose passionate warning against empowering states with greater economic control, The Road to Serfdom, became an overnight sensation last summer when it was endorsed by Glenn Beck. The book has since sold over 150,000 copies.

The latest entry in the University of Chicago Press’s series of newly edited editions of Hayek’s works, The Constitution of Liberty is, like Serfdom, just as relevant to our present moment. The book is considered Hayek’s classic statement on the ideals of freedom and liberty, ideals that he believes have guided—and must continue to guide—the growth of Western civilization. Here Hayek defends the principles of a free society, casting a skeptical eye on the growth of the welfare state and examining the challenges to freedom posed by an ever expanding government—as well as its corrosive effect on the creation, preservation, and utilization of knowledge. In opposition to those who call for the state to play a greater role in society, Hayek puts forward a nuanced argument for prudence. Guided by this quality, he elegantly demonstrates that a free market system in a democratic polity—under the rule of law and with strong constitutional protections of individual rights—represents the best chance for the continuing existence of liberty.

Striking a balance between skepticism and hope, Hayek’s profound insights are timelier and more welcome than ever before. This definitive edition of The Constitution of Liberty will give a new generation the opportunity to learn from his enduring wisdom.

Americans are increasingly ruled by an unwritten constitution consisting of executive orders, signing statements, and other forms of quasi-law that lack the predictability and consistency essential for the legal system to function properly. As a result, the U.S. Constitution no longer means what it says to the people it is supposed to govern, and the government no longer acts according to the rule of law. These developments can be traced back to a change in “constitutional morality,” Bruce Frohnen and George Carey argue in this challenging book.

The principle of separation of powers among co-equal branches of government formed the cornerstone of America’s original constitutional morality. But toward the end of the nineteenth century, Progressives began to attack this bedrock principle, believing that it impeded government from “doing the people’s business.” The regime of mixed powers, delegation, and expansive legal interpretation they instituted rejected the ideals of limited government that had given birth to the Constitution. Instead, Progressives promoted a governmental model rooted in French revolutionary claims. They replaced a Constitution designed to mediate among society’s different geographic and socioeconomic groups with a body of quasi-laws commanding the democratic reformation of society.

Pursuit of this Progressive vision has become ingrained in American legal and political culture—at the cost, according to Frohnen and Carey, of the constitutional safeguards that preserve the rule of law.

Following a vast expansion in the twentieth century, government is beginning to creak at the joints under its enormous weight. The signs are clear: a bloated civil service, low approval ratings for Congress and the President, increasing federal-state conflict, rampant distrust of politicians and government officials, record state deficits, and major unrest among public employees.

In this compact, clearly written book, the noted legal scholar Richard Epstein advocates a much smaller federal government, arguing that our over-regulated state allows too much discretion on the part of regulators, which results in arbitrary, unfair decisions, rent-seeking, and other abuses. Epstein bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights—an overarching structure that allows private property to keep its form regardless of changes in population, tastes, technology, and wealth. This structure also makes possible a restrained public administration to implement limited objectives. Government continues to play a key role as night-watchman, but with the added flexibility in revenues and expenditures to attend to national defense and infrastructure formation.

Although no legal system can eliminate the need for discretion in the management of both private and public affairs, predictable laws can cabin the zone of discretion and permit arbitrary decisions to be challenged. Joining a set of strong property rights with sound but limited public administration could strengthen the rule of law, with its virtues of neutrality, generality, clarity, consistency, and forward-lookingness, and reverse the contempt and cynicism that have overcome us.

Promoting the rule of law at the national and international levels is at the heart of the United Nations’ mission and is a principle embedded throughout the Charter of the United Nations and most constitutions of nation-states. The 2012 “Declaration on the Rule of Law at the National and International Levels” adopted by the General Assembly reaffirmed that human rights, the rule of law, and democracy were interlinked and mutually reinforcing, and that they belonged to the universal and indivisible core values and principles of the United Nations. To some, the “Rule of Law” has become nothing more than empty rhetoric of individual Western states and intergovernmental bodies such as the UN, The World Bank, and the EU. In addition to conceptual uncertainty and perceived hidden agendas, there is mounting skepticism, particularly among donors, regarding rule of law promotion and its effectiveness in fragile states.

The International Rule of Law Movement critically evaluates rule of law initiatives from a contemporary global perspective. It seeks to fill the gap in knowledge among actors and to explain what has and has not been effective and why. It also proposes better models for promoting justice and the rule of law in fragile states.

Does the law shield citizens from authoritarian regimes? Are the core beliefs of classical liberalism—namely the rights of all individuals and constraints on state power—still protected by law? Liberalism and its expansion of rights could not exist without the legal system, and unsurprisingly, many scholars have explored the relationship between law and liberalism. However, the study of law and illiberalism is a relatively recent undertaking, a project that takes on urgency in light of the rise of authoritarian powers, among them Donald Trump’s administration, Viktor Orban’s Hungary, Recep Erdogan’s Turkey, and Jair Bolsanoro’s Brazil.

In this volume, six penetrating essays explore the dynamics of the law and illiberal quests for power, examining the anti-liberalism of neoliberalism; the weaponization of “free speech”; the role of the administrative state in current crises of liberal democracy; the broad and unstoppable assault on facts, truth, and reality; and the rise of conspiracism leading up to the Capitol insurrection. In addition to the editors, contributors include Sharon Krause, Elizabeth Anker, Jeremy Kessler, Lee McIntyre, and Nancy Rosenblum.

A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.

Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner’s theory steers between political theorists’ concept of deliberative democracy on the left and economists’ public-choice theory on the right. It makes a significant contribution to the theory of democracy—and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.

Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons.

In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action.

As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.

Since the Cold War ended, China has become a global symbol of disregard for human rights, while the United States has positioned itself as the world’s chief exporter of the rule of law. How did lawlessness become an axiom about Chineseness rather than a fact needing to be verified empirically, and how did the United States assume the mantle of law’s universal appeal? In a series of wide-ranging inquiries, Teemu Ruskola investigates the history of “legal Orientalism”: a set of globally circulating narratives about what law is and who has it. For example, why is China said not to have a history of corporate law, as a way of explaining its “failure” to develop capitalism on its own? Ruskola shows how a European tradition of philosophical prejudices about Chinese law developed into a distinctively American ideology of empire, influential to this day.

The first Sino-U.S. treaty in 1844 authorized the extraterritorial application of American law in a putatively lawless China. A kind of legal imperialism, this practice long predated U.S. territorial colonialism after the Spanish-American War in 1898, and found its fullest expression in an American district court’s jurisdiction over the “District of China.” With urgent contemporary implications, legal Orientalism lives on in the enduring damage wrought on the U.S. Constitution by late nineteenth-century anti-Chinese immigration laws, and in the self-Orientalizing reforms of Chinese law today. In the global politics of trade and human rights, legal Orientalism continues to shape modern subjectivities, institutions, and geopolitics in powerful and unacknowledged ways.

As frequent intermediaries between Israeli military authorities and Palestinian citizens, Palestinian lawyers stand close to the fault line dividing Israeli and Palestinian societies. The conflicts and tensions they experience in their profession mirror the larger conflicts between the two societies. Thus, as George Bisharat reveals in Palestinian Lawyers and Israeli Rule, a careful study of the work and lives of Palestinian lawyers ultimately helps to illuminate the causes of the intifada, or uprising, that began in December 1987.

The study revolves around the central question of why the Palestinian legal profession declined during twenty years of Israeli occupation when, in other Third World countries, the legal profession has often reached its peak during a period of Western colonization. Bisharat answers this question with a wide-ranging inquiry into the historical origins of the legal profession and court system in Palestine, the tenuous grounding of these institutions in Palestinian society and culture, and the structure, style, and policies of the late-twentieth-century Israeli military government in the West Bank.

For general readers interested in the Palestinian-Israeli conflict, as well as specialists in such fields as legal anthropology, sociology of the professions, Third World law and development, and Middle Eastern studies, Palestinian Lawyers and Israeli Rule will be required reading.

This book explores the trials of Spanish democracy from the death of Franco to the present. But the heart of the story is the generation that came of age in the 1960s, assumed political power, and formed the first Socialist government in 1982 with Felipe González as Prime Minister, which was returned to power in four consecutive elections. Starting in 1993, however, the government came under siege. High officials were accused of authorizing the assassination of as many as twenty-eight Basque nationalists suspected of terrorism over the years, and of covering up these crimes. This scandal, along with other disclosures of corruption and serious law-breaking, shook the country's confidence in its legal and political institutions and in its ability to hold its leaders to the rule of law.

The author probes for the roots of these events in the character of the generation that assumed power and in the immature nature of the civil society it inherited. Facing unusually high unemployment, internal economic and social pressures, the stringent requirements for joining the European Union, and the demands of Catalan and Basque nationalists, the government lost its way and was eventually voted out of office.

Using Spain as the example, the book examines issues of governance, social change, and internal nationalist movements as they relate to the civil society and the wider polity everywhere.

An essential study of the rule of law by one of the world’s leading liberal political and legal philosophers.

The meaning and value of the rule of law have been debated since antiquity. For many, the rule of law has become the essence of good government. But Jeremy Waldron takes a different view, arguing that it is but one star in a constellation of ideals that define our political morality, ranking alongside democracy, human rights, economic freedom, and social justice.

This timely essay collection, from one of the most respected political philosophers of his generation, is a brief on behalf of thoughtfulness: the intervention of human intelligence in the application of law. Waldron defends thoughtfulness against the claim that it threatens to replace the rule of law with the arbitrary rule of people. To the contrary, he argues, the rule of law requires thoughtfulness: it is impossible to apply a standard such as “reasonableness” on the basis of rules alone, and common legal activities like arguing in court and reasoning from precedents are poorly served by algorithmic logics. This rich compilation also addresses the place of law in protecting human dignity, the relation between rule of law and legislation, and whether vagueness in the law is at odds with law’s role in guiding action.

Thoughtfulness and the Rule of Law emphasizes the value of procedures rather than the substance or outcome of legal decisions. Challenging the view that predictability and clarity are cardinal virtues, Waldron shows that real-world controversies often are best approached using a relatively thin concept of the rule of law, together with the thoughtfulness that a legal system frames and enables.