3.1 The rule of law as norm and narrative

The concept of the rule of law is highly contested and has been discussed from multiple perspectives, most of which fall beyond the scope of this article. Although there are technical distinctions between the various forms of ‘rule of law’, ‘état de droit’ and ‘Rechtsstaat’, they share a core set of components, including inter alia legal certainty, non-retroactivity, judicial independence and the commitment to and protection of human rights.Footnote ¹ While most commentators discuss the rule of law’s constitutive elements from a ‘thick’ substantive and cultural (Geertz, Reference Geertz1993, pp. 6–10, 18) perspective or ‘thin’ procedural perspective (McCorquodale, Reference McCorquodale2016, pp. 282–283), others emphasise its purpose of preventing arbitrary exercises of power (Krygier, Reference Krygier2011, pp. 67–81; Krygier, Reference Krygier2019, pp. 758 et seq), primarily by the state (Krygier, Reference Krygier2011, pp. 88–89). In this crowded field of academic analysis, the ideological origins, ascendance and politico-legal scope of the rule of law as a foundational concept in liberal democracy have been examined in depth (Loughlin, Reference Loughlin2018) and the possible differences between its formal and substantive meanings have also been extensively examined (Craig, Reference Craig1997; Tamanaha, Reference Tamanaha2004; Costa and Zolo, Reference Costa and Zolo2007). Against this backdrop, the aim here is to focus more specifically on the conceptual construction of the rule of law in relation to the past, which is addressed here in two stages. The first concerns how the rule of law concept depends on an element of historical contrast with systemic attributes of past orders that are understood to represent liberal democracy’s opposites. The second involves the meaning of the rule of law in politico-legal narratives about the foundations of national and transnational legal orders in post-Second World War Europe.

First, to an important degree the normative meanings of the rule of law are established negatively by reference to what a system respecting the rule of law should not do. These negative references encompass in a narrow sense the sorts of harm against which the rule of law should protect (Krygier, Reference Krygier2011, pp. 87–88; Tamanaha, Reference Tamanaha2004, p. 115), and more broadly the systemic features and types of conduct that the rule of law is supposed to prevent. This negative definitional approach is rooted in a historical perspective, in that the rule of law is deemed to establish and uphold principles and practices that were developed to replace the rejected attributes of previous systems. The rule of law in common law systems, and état de droit-type concepts in civil law systems, originally emerged historically as a set of (selective and narrowly construed) responses to (or compromises with) preceding autocratic, arbitrary or authoritarian monarchies (Loughlin, Reference Loughlin2010, pp. 316–322; Van Kley, Reference Van Kley and Van Kley1994, pp. 5–7). In the post-Second World War era, the rule of law came to be associated with governmental constraint, accountability and universal human rights that were considered to embody the opposites of the excesses and abuses associated with the regimes defeated in that conflict (Loughlin, Reference Loughlin2010, p. 321). Similarly, in post-1989 Europe and especially in post-communist systems, the rule of law came to represent the liberal democratic standards that communist governments had rejected (Loughlin, Reference Loughlin2018, p. 661). In these senses, the meaning of the rule of law is largely established in opposition to historical practices and abuses of power. The name of the concept itself, the rule of law, is primarily understood to mean a form of rule that is not that of an arbitrary individual but of the supposedly neutral, autonomous and equally applicable law itself (Palombella, Reference Palombella2018, p. 10), thereby indicating the substantive and procedural opposite of past autocracy. Historical experiences are thus a key part of the matrix of references that constitute the rule of law’s normative meanings but are framed in a way that consigns them to a closed chapter of past time.

Second, and closely related to this conceptual construction of the rule of law, national constitutional systems are similarly grounded in foundation narratives that emphasise a break, or development away from, a previous period or regime. Constitutional law involves its own conception of time and history. Codified constitutions, which represent a new beginning, consign the previous order to the past, erect a formal legal barrier to prevent its return and establish a new timeframe in which its rules and principles are intended to shape the present and face the future (Douzinas, Reference Douzinas2006, pp. 16–17). Even an unwritten constitutional order, such as the United Kingdom’s, which has a distinctive sense of historical tradition and longevity, includes temporal markers in the form of statutes or judgments that indicate new starting points.

Similarly, at the transnational level in Europe, the main post-war regional organisations intended to uphold the rule of law were originally constructed following the defeat of Nazism and Fascism in the Second World War and were later extended in the aftermath of military dictatorships in southern Europe and the fall of Communism in Central and Eastern Europe. These transnational organisations were rooted in declarations that a dark chapter of history had closed, and that a new beginning was possible, based on historical narratives of European values according to which a common heritage preceded and survived the non-democratic period, grounding a shared ambition to establish or renew liberal democratic values.Footnote ² While the general aim was to leave the horrors of war and totalitarian repression behind, Europe’s painful twentieth-century history has remained as a perennial, explicit and implicit point of reference in these narratives, as the negative benchmark against which the rule of law, together with liberal democracy and human rights, have been interpreted and developed in transnational politico-legal discourse (Morsink, Reference Morsink1999, pp. 1–40; Günther, Reference Günther and Alston1999, p. 117; Greer, Reference Greer2006, pp. 12–17; Dupré, Reference Dupré2015a, pp. 57–62; Skinner, Reference Skinner2019, pp. 59–62, 125–127; Aust, Reference Aust, Aust and Demir-Gürsel2021, p. 7).

These national and transnational foundation narratives are though shaped to a large extent by processes of identity construction. The post-war and post-communist political and legal discourse of liberal democracy and the rule of law, peace and justice, as well as appeals to supposed common traditions, have involved selective narrative reconfiguration of historical experience, which could even be called mythologisation (Fitzpatrick, Reference Fitzpatrick1992, p. 65; Marks, Reference Marks1996; Müller, Reference Müller and Müller2002, p. 3; Douzinas, Reference Douzinas2006, p. 16; Skinner, Reference Skinner2019, pp. 61–62). These processes have sought to highlight the positive while minimising or obscuring the negative, and to promote evolutionary stories that are not entirely rooted in fact (Přibáň, Reference Přibáň2017; Judt, Reference Judt and Müller2002; Loxton, Reference Loxton2021). This has resulted in the construction of an artificial time of law that focuses on the present identity of a new politico-legal order, which is partly defined in relation to the past but is claimed to be distinct from it.

3.2 Law and the legacies of its past

The limitations of the conceptual construction of the rule of law, and the selective approach of rule of law narratives, can be demonstrated by four examples of the legacies of law’s dark past in Europe. These examples illustrate system-specific features of law’s past and its connection with the present and, taken together, point to a more general need to overcome the conceptual past-present distinction in rule of law analysis. The first of these examples focuses on the predominant context of the rule of law backsliding debate. In Central and Eastern Europe, despite the foundational ideological claims of Marxism that law would cease to exist as soon as the proletarian revolution was complete, legal provisions persisted as tools of Communist government, but in contradiction with liberal tenets of the rule of law (Gorlizki, Reference Gorlizki, Pihlajamäki, Dubber and Godfrey2018). Since 1989, the transition from Communist rule has involved a reconfiguring of the legal status of and connections between pre- and post-1989 political orders and an occultation of jurisprudential continuities in legal thought and culture (Müller, Reference Müller, Barahona de Brito, Gonzalez-Enriquez and Aguilar2001; Cercel, Reference Cercel2018, pp. 5–12, 204; Graver and Čuroš, Reference Graver and Čuroš2021; Fleck, Reference Fleck2021, pp. 1298–1299, 1315; Gardos-Orosz, Reference Gardos-Orosz2021, pp. 1342–1343). While in the aftermath of 1989 most states in the region sought to adopt the politico-legal trappings of liberal democracy, as well as liberal free market capitalism (Dupré, Reference Dupré2003, pp. 15–38; Tamanaha, Reference Tamanaha2004, p. 44), this did not involve a complete, root-and-branch process of reform and rebirth, despite extensive and radical changes in some systems (Iancu, Reference Iancu2021, pp. 1212, 1216, 1230). The formation of governments after 1989 involved compromise. New states proclaiming themselves to be grounded in the rule of law were born from Communist predecessors ‘which operated with no respect for law,’ while the ‘problem of continuity’ was hidden behind claims ‘of a so-called “thick line” between present and past’ (Czarnota, Reference Czarnota, Czarnota, Krygier and Sadurski2005, p. 125). Legacies of non-rule of law practices, together with anti-pluralistic and illiberal political culture have meant, however, that over thirty years on from the seismic shifts of the post-1989 period, some post-Communist governments have increasingly imitated, in direct and indirect ways, various political and legal features of the systems they supposedly consigned to history, such as concentrating constitutional power in a single organ of government, eroding rights and eliminating accountability (Dupré, Reference Dupré, von Bogdandy and Sonnevend2015b; Scheppele, Reference Scheppele2018; Drinóczi and Bień-Kacała, Reference Drinóczi and Bień-Kacała2019; Loxton, Reference Loxton2021). Although history is predominantly marginal in the backsliding debate, the relationship between past and present requires closer attention than the rule of law concept and related periodised narratives tend to recognise.

These sorts of issues are also readily identifiable in other systems that were reconstructed in the aftermath of antidemocratic regimes. As a second example, the National Socialist, or Nazi era in Germany entailed distinctive approaches to law that have been deemed paradigmatic of totalitarian flexible legality and the erosion of liberal constitutional constraints, including rule by decree, reasoning by analogy and the racially motivated annihilation of rights, freedoms and human dignity (Stolleis, Reference Stolleis, Pihlajamäki, Dubber and Godfrey2018, pp. 1076–1093). Such was the supposed divergence of Nazi legal measures from presumed liberal democratic norms and practices that they were widely considered to be ‘non-law’ (Fraser, Reference Fraser2005, pp. 77–78; Lavis, Reference Lavis2018) and as such a key part of the antithetical references grounding and justifying post-war measures to protect human rights and the rule of law. However, since the 1960s, critical commentary has pointed to the lasting impact of Nazi legal thought and the problematic status of that regime’s legislative norms as recognisable law (Stolleis, Reference Stolleis, Pihlajamäki, Dubber and Godfrey2018, pp. 1092–1094; Lustgarten, Reference Lustgarten, Joerges and Singh Ghaleigh2003). Despite the constitutional fabric of post-war West Germany, its ‘never again’ ethos and efforts to ‘overcome’ the Nazi past, that period of history and its legal components have nevertheless cast long shadows, not only over German law but also the normative orders of law and the rule of law more generally (Stolleis, Reference Stolleis1998; Joerges, Reference Joerges2003; Fraser, Reference Fraser2005, pp. 419–443). Consequently, this example also indicates how law that was supposed to be confined to the past has not been entirely distinct from law and legal culture that were considered to be subsequent and separate, that is, part of the present, at the national and transnational levels.

As a third example, the Fascist period in Italy was characterised by reliance on law as a key vector of authoritarian state power, involving new legislation and codification, broadly drafted criminal offences, increased repression and more severe punishments, as well as the co-operation of legal institutions (Schwarzenberg, Reference Schwarzenberg1977; Neppi Modona, Reference Neppi Modona, Lacchè, Latini, Marchetti and Meccarelli2007; Cassese, Reference Cassese2010, pp. 16–21; Cavallo, Reference Cavallo and Skinner2019). Critical studies have shown though that law under Fascism was not an anomalous exception in the longer term Italian legal order, in that it demonstrated continuities from the preceding Liberal period and has had a lasting impact on law under the post-war Republic, in terms of substance, method and professional culture (Piasenza, Reference Piasenza1979; Sbriccoli, Reference Sbriccoli, Violante and Minervini1998; Sbriccoli, Reference Sbriccoli1999, pp. 842–50; Cassese, Reference Cassese2010, pp. 13–15, 82; Livingston, Reference Livingston2015). Despite becoming a constitutional liberal democracy after the fall of Fascism, Italy’s transition from the dictatorship was arguably incomplete (Pavone, Reference Pavone1974; Battini, Reference Battini, Mazhar and Pugliese2007) and one of the most visible continuities has been the survival of legal codes which have not been completely revised to remove all Fascist traces (Skinner, Reference Skinner2011). As in Germany before and after reunification, these legacies of the past have continued to affect the normative integrity of the rule of law, not only in Italy but arguably also in a deeper trans-European sense (Skinner, Reference Skinner2016) demonstrating the limitations of the periodised conceptual and narrative construction of the rule of law.

As a final example, the impact of law’s presumed past on law’s perceived present is not only a feature of post-totalitarian systems but also of states with supposedly long traditions of adherence to liberal democratic principles, such as the United Kingdom, which has often been considered (or considered itself) to be a benchmark for the rule of law. For example, foundational narratives of the rule of law in Western European national and transnational systems tend to overlook how that concept was closely connected with such systems’ defining feature, that is, an exclusive conception of the nation and a related territory (Fitzpatrick, Reference Fitzpatrick1992, pp. 111–118; Fitzpatrick, Reference Fitzpatrick and Fitzpatrick1995, pp. xiv–xv). In other words, the rule of law brings a nationalist focus with it into the heart of liberal democracy. Foundational narratives of the rule of law also tend to ignore or marginalise states’ historical practices in colonial ‘possessions’ overseas that demonstrated the limits of law itself, and of the values of constraint and protection that it supposedly represented (Fitzpatrick, Reference Fitzpatrick1992, pp. 107–111; Wiener, Reference Wiener2012; Lobban, Reference Lobban2021). Similarly, ongoing racial discrimination in long-standing European democracies reveals a residue of the imperial past, undermining equality before the law and challenging the embeddedness of the liberal values that it is claimed to reflect (Fitzpatrick, Reference Fitzpatrick1987; Bhattacharyya et al., Reference Bhattacharyya2021, pp. 57–67). Liberal democracies have also demonstrated a willingness to resort to authoritarian measures curtailing legality and liberty when they are considered to be necessary (Spaulding, Reference Spaulding, García and Frankenberg2019), thereby demonstrating the fragility of the rule of law. This has included measures in the name of security (Fraser, Reference Fraser2005, pp. 419–443; Blanchard, Reference Blanchard2016; Skinner, Reference Skinner2022b) and, during the Covid-19 pandemic, public health (Serna de la Garza, Reference Serna de la Garza2020; Cercel, Reference Cercel2021; Grogan and Donald, Reference Grogan and Donald2022). In these ways, connections between the undemocratic tendencies of the past and the liberal democratic present are apparent, even in systems that have not transitioned from totalitarianism.

These four examples thus demonstrate how forms of law and related practices that had supposedly been left behind in the past have continued to have an impact on the substance and methods of law in the present, as well as on legal culture and collective memory (Karstedt, Reference Karstedt and Karstedt2009, pp. 1–7; Skinner, Reference Skinner2011, pp. 436–439; Aragoneses, Reference Aragoneses, Belavusau and Gliszczyńska-Grabias2017). These continuities in national systems highlight the artificial distinction between past and present at the mythic core of the rule of law concept, as well as the limitations of national and transnational narratives of a common rule of law heritage. Where representations and evaluations of the rule of law uncritically echo an underlying conceptual and narrative compartmentalisation of historical periods they can be seen in some circumstances to be factually and epistemically contestable. Although facts and norms are distinct, and histories of law in practice can and should only partly inform the rule of law concept’s prospective normative content in principle, it is argued here that analysis of the rule of law needs to acknowledge and reflect the contexts and realities to which it is applied. As a first step, this requires reflection on how the past-present relationship can be understood in terms of connection rather than distinction.

4.1 Challenging the past-present distinction

The concepts of ‘present’, ‘past’ and the idea that they are temporally circumscribed and distinct from each other is predominantly based on a sense of the linear nature of time and the sequential occurrence of events. This means that the experience of time is usually understood to involve a forward motion through a series of moments and incidents, with each leading into the next and deemed to be finished when it has passed, thus becoming part of the past. Fundamental to this way of understanding history, therefore, is the idea that events and experience become separated from the present by the passage of time. As Chris Lorenz observed (Lorenz, Reference Lorenz, Tilmans, van Vree and Winter2010, p. 77):

The term ‘history’ refers both to past occurrences (facts and events) that have happened and the body of knowledge of past occurrences (as record and interpretation). As the conceptual historian and philosopher of history Reinhart Koselleck stated, ‘The peculiar meaning of history, such that it is at the same time knowledge of itself, can be understood as a general formulation of an anthropologically given arc linking and relating historical experience with knowledge of such experience’ (Koselleck, 1985, p. 92). That ‘knowledge of itself’ is deemed to be reflected in, and verifiable by reference to, evidence that enables past events to be reconstructed and recounted in ways that are truthful even if contingent on an interpretive perspective (Koselleck, 1985, pp. 132, 140, 142, 155). In that regard, history is considered to be a form of knowledge that is more certain than memory, which is sometimes presented as a fragile and uncertain domain of subjective and fallible interpretations of past events (Müller, Reference Müller and Müller2002, pp. 22–24). The cognitive process of remembering dissolves the distance between past and present, connecting sensory impressions of what happened in a period of time gone by with the current self and its state of being in the perceived here and now. Yet memory is not deemed to demonstrate the contingency of those temporal categories but rather its own fragility. At the same time, although history is considered to be more reliable, it is important to recall that memory, especially in its collective sense, is nevertheless recognised to be a powerful force, socially and culturally (Karstedt, Reference Karstedt and Karstedt2009, pp. 1–7).

However, while history is generally understood to be both a category of, and a way of categorising, events and experiences that are considered to be distinct from the present and to belong to a separate and past time, such a temporal classification depends on contingent choices about when the past, or sections of it, begin and end. The process of choosing how to classify past time is known as periodisation and involves representing the passage of time in terms of distinct periods (temporal compartments) into which events can be organised for interpretive purposes. As historiographers have argued, periodisation of the past is contestable (Gerhard, Reference Gerhard1956, p. 900; Blackbourn, Reference Blackbourn2012; Jordheim, Reference Jordheim2012), and its role in analysing processes of continuity and change depends on, and varies according to, the scope and aims of the historical study in question (Green, Reference Green1992; Epple, Reference Epple, Albert and Werron2021). Critical studies of periodisation have focused on how the compartmentalisation of time past is an artificial process based on interpretive choices about distinguishing features, connections and the relative significance of events (Burnham, Reference Burnham1986, p. 265; Sklar, Reference Sklar1991, pp. 180–181). Although the contingency of periodisation in understanding recent European legal history has been recognised in discussions of changes and continuities in state systems (Graver and Čuroš, Reference Graver and Čuroš2021, pp. 1149–1151), it is important to underline that the determination of historical periods and the boundaries between them is not just an intellectual or evidence-based construction but an inherently political choice. As Herbert Reid noted, if social scientists ‘make a framework of external temporality normative for interpreting and “explaining” human activities’ they must be aware of the implications of doing so (Reid, Reference Reid1972, p. 470). This sort of historical analysis, Reid argued, involves a ‘politics of time’ inherent in the choices made about constructing temporality, which must be recognised as both ‘matrix and perspective’ (Reid, Reference Reid1972, pp. 472, 478). Similarly, Johannes Fabian argued that the construction of objects of knowledge through temporal frameworks ‘is a political act; there is a Politics of Time’ (Fabian, Reference Fabian1983/2014, pp. xxxviii, 143–144; Davis, Reference Davis2008, pp. 1–6; Lorenz, Reference Lorenz, Tilmans, van Vree and Winter2010, pp. 93–94). In other words, history does not provide its own self-evident temporal framework, but instead time frames are interpreted and imposed on history from the specific perspectives of its interpreters.

In addition, the idea of boundaries and differences between past and present is also questionable in terms of human perception and interpretation. Cerebral reception and decoding of sensory information and processes of cognition give an impression of immediacy as experiences unfold, yet perception lags behind occurrence, so that any event that seems to be lived through instantaneously is already (albeit fractionally) in the past. In that sense, the demarcation between present and past is fragile and ephemeral and tends to overlook the temporal filament that links ‘now’ with ‘time gone by’. Furthermore, understanding of historical events can be subjectively variable and culturally specific, so that the idea of an objectively identifiable history is elusive, perspective-dependent and open to challenge (Giordano, Reference Giordano2016; Shagan, Reference Shagan2019, p. 73). Events deemed ‘past’ may have shaped events deemed ‘present’ in causal and contextual terms, that is, issues of origin and conditions of existence that are matters of interpretation. Also, the ways in which people perceive and interpret occurrences in one time period can be influenced by their experiences or perceptions during another period, so that understanding the present can be shaped by the past, and understanding the past can be (re)shaped by the present (Bloch, Reference Bloch1954/1992, pp. 32–39; Keane, Reference Keane and Tully1988, p. 204 as cited in Müller, Reference Müller and Müller2002, p. 3). According to Koselleck (Koselleck, 1985, pp. 274–275):

For these various reasons, the apparent distinction between past and present is at least questionable, if not artificial and porous, in ontological and epistemological terms. The implications of contesting this distinction for the rule of law can be elucidated by turning to two alternative ways of conceptualising the past and its relationship with the present.

4.2 Conceptualising history as layered and enduring

Reinhart Koselleck sought to reinterpret the nature of time in history as a necessary theoretical step towards understanding how historical analyses represent and discuss the relationship between the past and the present, as well as (specifically for the broader purposes of his work) the future. In so doing, he proposed an interpretation of time and history as multi-layered. He sought to move away from what he referred to as historians’ usually ‘bipolar’ understanding of time, according to which it is portrayed either as (in the Judeo-Christian tradition) something linear that heads ‘towards an open future’ (albeit determined by God) and represents ‘an irreversible form of sequential unfolding’, or (in Ancient Greek thought) as something ‘recurrent and cyclical’ (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 3). Instead, Koselleck used the metaphor of sedimentary layers, referring ‘to geological formations that differ in age and depth and that changed and set themselves apart from each other at differing speeds over the course of the so-called history of the earth’ (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 3). He argued that ‘[b]y transposing this metaphor back into human, political, or social history as well as into structural history, we can analytically separate different temporal levels upon which people move and events unfold, and thus ask about the longer-term preconditions for such events’ (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 3). In so doing, he aimed to ‘circumvent the linear-cyclical dichotomy’ and instead present an interpretation of historical time as consisting ‘of multiple layers’ of experiences and their outcomes ‘that refer to each other in a reciprocal way, though without being wholly dependent upon each other’ (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 4). His intention was to find ‘a way of seeing how different epochs might be able to change in different ways and at different rates’ (Olsen, Reference Olsen2012, p. 229).

For Koselleck, human experiential time can be understood to involve three layers. The first relates to the ‘singularity’ of events that ‘are experienced primarily as surprising and irreversible’ (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 4). In Koselleck’s interpretation, such singular events can be understood in linear terms, as occurring in ‘succession’ and being locatable along a ‘time line’ (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 5). The second layer involves deeper ‘structures of repetition’ or recurrence that make singular events possible (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 5). Koselleck illustrated this idea with the example of the singularity of a letter bringing bad news and how its delivery depends on the underlying regularity and continuity of a postal service; and the singularity of a judicial decision against the backdrop of laws in general and the legal system (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, pp. 5–6). According to Koselleck, awareness of both singularity and deeper structures of recurrence allows the identification of different velocities and modes of historical change and thus a more complex sense of time (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 6). The third layer involves even deeper structures or ‘preconditions of experience’ that operate on a level beyond an individual or even generational lifespan (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 8). Koselleck stated that such factors include the biological processes of human reproduction as a species and cultural beliefs, perceived truths and worldviews (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, pp. 8–9). Such things can change, noted Koselleck, but at an even slower rate than the other two layers. Considering these three layers with their short-, mid- and longer-term nature and ‘different speeds of change and transformation’ challenges the more usual linear perception of time and, importantly, suggests the overlapping of dimensions of human experience in history (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 9; Olsen, Reference Olsen2012, p. 227).

Importantly though, even the singularity of events and individual experiences, which Koselleck suggested can be understood in a more linear way, can be questioned in terms of their relationship with and effect on the perception of time and the apparent separation of past, present and future. In this regard, the philosopher Vladimir Jankélévitch, in his reflection on time and human recollection, identified two ways of understanding past experiences (Jankélévitch, Reference Jankélévitch1974). One relates to what Jankélévitch considered to be the defining characteristic of time and its passing, namely ‘irreversibility’. This involves a sense of the ‘having taken place’ meaning ‘having been’, a transient experience that has been and gone, and that having passed becomes part of the past and as such cannot come back (Jankélévitch, Reference Jankélévitch1974, pp. 7 et seq.). This is a linear perspective on the passage of time in which experiences and events occur but then recede into history as time continues. Yet Jankélévitch also proposed an interpretation of experiences and events according to which some of them do not become solely consigned to the past once they have occurred but continue into the present. This perspective on time and experience involves a sense of the ‘having taken place’ meaning ‘having been done’, which Jankélévitch calls ‘irrevocable’ (Jankélévitch, Reference Jankélévitch1974, pp. 260 et seq.). Whereas in Jankélévitch’s conceptual order time is always irreversible, it is irrevocable from time to time. In other words, a past experience is perceived as irrevocable ‘when it involves an important event’ or a ‘privileged’ or ‘exceptional’ moment that continues to exert an influence in the present (Jankélévitch, Reference Jankélévitch1974, pp. 280–281). In this sense, although time always continues in its inexorable passing, some events and experiences that occur at a particular time do not recede into the past but, due to their significance in human consciousness, endure beyond the moment of their happening, challenging the temporal and epistemological categories and boundaries which are generally deemed to distinguish history from memory (Lorenz, Reference Lorenz, Tilmans, van Vree and Winter2010, pp. 83–84).

For Berber Bevernage, in his discussion of Jankélévitch’s analysis, the emergence of a conception of the past as irrevocable can be located in collective memories of historical atrocity, primarily since the Holocaust and especially in the context of transitional justice since the end of the Cold War (Bevernage, Reference Bevernage2012, pp. 13–14). The idea of the irrevocable past has thus been particularly influential in cultural, political and legal efforts to address past wrongs or other traumatic events that have engendered an enduring memory and impact on perceptions of (in)justice. Notably, other works inspired by the memory of the Holocaust advance a similar idea of an irrevocable past. For example, Lawrence Langer distinguished between the concepts of ‘chronological’ time and ‘durational’ time (Langer, Reference Langer1993, pp. 265–270). He states that ‘the lingering of durational time distinguishes it from the evanescent flow of chronological time, with its before, during and after’ (Langer, Reference Langer1993, p. 272). For Gabrielle Spiegel, chronological time is the sort of time assumed in history and that is perceived as passing (that is, involving the apparent flow of events into the past), whereas ‘durational time resists precisely the closure – the putting an end to the past – that chronological/historical time necessarily effects; durational time persists as a past that will not pass, hence as a past always present’ (Spiegel, Reference Spiegel2002, pp. 158–159; Lorenz, Reference Lorenz, Tilmans, van Vree and Winter2010, p. 84).

The conceptions of the irrevocable past and durational time thus bring to light the significance and effect of past experiences and events that have been and are gone, but that remain alive and active in the present. Importantly, while these conceptions of the continued existence or indelibility of memory are particularly relevant to understanding (in)justice, they are also more broadly indicative of the past’s potential to influence the present, including not only perceptions but also practices. This is not intended to imply a sort of historical determinism, in the sense of present behaviours being unavoidably shaped by the past, but to indicate how past and present can sometimes be interconnected rather than always and only being distinct.

These ideas of temporal layers and irrevocability can be illustrated with reference to one of the major events in Europe after 1989. Koselleck notably explained his concept of the sediments of time by referring to the merging of the former East Germany (the German Democratic Republic or GDR) with the former West Germany into the unified Federal Republic. He noted that while the reunification formally occurred in a specific timeframe, change in the deeper economic and cultural conditions of the former East took longer to address (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, pp. 6–7). In terms of his three layers, a singular event occurred based on underlying systemic structures and against a backdrop of even deeper societal and human conditions. To view this example in Jankélévitch’s terms, while the end of Communism in the GDR was experienced as an event that moved into the past and as such was temporally irreversible, the effects of Communism were so profound, in terms of culture and memory, that they could be considered irrevocable, thus continuing into the present. The alternative perspectives of Koselleck and Jankélévitch thus provide a way of understanding and conceptualising time and history, past and present, that highlights their layered and overlapping dimensions. This can in turn usefully ground a critical reinterpretation of the rule of law and its conceptual dependence on a past-present distinction.

5.1 Fault lines and metaphorical (re)thinking

To use a term that normally denotes a geological feature to refer to a theoretically framed problem in the rule of law concept is, as Koselleck noted, to engage in the use of metaphor (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 3). This sort of figure of speech involves using a word or term to describe something to which it is not usually applied so as to imply or evoke a similarity of characteristics (Philippopoulos-Mihalopoulos, Reference Philippopoulos-Mihalopoulos2016, pp. 45–50). Although this sort of cross-disciplinary borrowing can risk clouding a discussion by plucking a term from its original context and using it as a substitute for actual analysis, especially in legal argumentation, it is a common technique that is usually intended to represent a complex idea abstractly and succinctly so as to generate a new critical perspective (Hanne and Weisberg, Reference Hanne, Weisberg, Hanne and Weisberg2018, pp. 4–5; Olson, Reference Olson, Hanne and Weisberg2018, pp. 29–36).^{Footnote 3} Koselleck himself relied on the metaphor of sediments to make different conceptual forms of time visible and therefore ‘analytically separate’ them, to support more precise discussion and understanding (Koselleck, Reference Koselleck, Koselleck, Franzel and Hoffman1994/2018, p. 3). A resort to metaphor nevertheless requires careful explication to avoid obfuscation and interpretive slippage.

In geology the term ‘fault line’ can mean a line or zone of collision, pressure, tension or friction between tectonic plates or rock formations. These impact zones can have different forms, in that one layer of rock can slip beneath, be pushed over, strike or slide against another, with the resulting friction between them causing a disturbance to the surrounding rocks and wider area (Bobrowsky, Reference Bobrowsky2013; Huggett, Reference Huggett2017, pp. 151–155).^{Footnote 4} The term fault line also denotes a landscape feature that can reveal the effects of past pressure and instability and indicate areas of potential upheaval or weakness, subject to the intensity, duration and frequency of impact between underlying forces. For purposes of legal critique, the metaphor of a fault line in the rule of law is intended to support an alternative perspective on the layers of past time and interconnections between the past and present that are apparent in experiences of law and systemic continuity or change.

Koselleck’s image of sediments of time was intended to draw attention to how change might occur at different levels of human experience and existence at different speeds, and how short-term events may be shaped by or depend on deeper conditions. While those metaphorical layers were therefore not static and conveyed a sense of interconnection, the aim here is to highlight the potentially disruptive nature of different rates of change and, in Jankélévitch’s terms, of the irrevocable past and its enduring impact on the present. The metaphor of fault lines is thus intended to highlight the idea that when legal experiences and activities change at different rates or endure over time, they can generate frictions, tensions or collisions with each other or with subsequent experiences and activities. Rethinking the relationship between past and present in these ways has various implications for critical engagement with the rule of law in the European context.

5.2 Analysing fault lines in the rule of law

Using the idea of fault lines to reimagine the concept of the rule of law and take into account the sorts of continuities and legacies outlined in section 3.2 brings with it a number of requirements and challenges. These are distilled here into four elements, namely an overarching critical intention, the rejection of artificial periodisation, the challenge of identifying and examining continuity, and the importance of ‘thick’ analysis. Addressing these factors in abstract and systematic terms, the focus here is on laying foundations for critical historical engagement with the rule of law, as well as further work on evaluating shifts in compliance with it in the European context.

The idea of reimagining the rule of law and its historical dimensions through the metaphor of fault lines is above all critical in its intention. This means that it aims to foster a questioning approach to the rule of law’s conceptual foundations and the assumptions that underpin evaluative analysis of states’ adherence to it. This requires recognition that the rule of law is not a seamless concept or mode of governance but is instead always already imperfect and unstable. The rule of law is marked and at times hindered by historical experiences that shape the systemic and cultural landscapes in which it is developed and embodied, that is, it is traversed by fault lines that disrupt and destabilise its interpretation and application. This critical approach is not intended to undermine the rule of law’s normative value, as the concept remains an essential component of liberal democracy that needs to be applied in the present and striven towards in the future. Rather, the aim is to strengthen engagement with the rule of law by recognising that liberal democracy, as an evolving, aspirational and future-oriented system, requires critical reflection and historical awareness to challenge the contingencies of national and transnational political narratives (frictions within fictions) and learn from its past (Frankenberg, Reference Frankenberg and Sajó2004). To that end, the critical analysis of fault lines is ultimately intended to open an interrogative space around the rule of law in which the intersections of past and present that shape it can be called into question (Frankenberg, Reference Frankenberg2020, p. xvi). Specifically, this involves addressing the conditions of possibility established by the legal past, as well as its continuities, which as shown above are not only features of post-totalitarian systems but also those with a supposedly longer democratic heritage.

This critical application of the fault lines metaphor directs attention to the ways in which historical features of law affect the present. This means that past non-liberal democratic experiences need to be considered not as periodised definitional points of reference within the rule of law concept or narratives of its development, or as marginal details at the edges of the backsliding debate. Instead, they need to be addressed directly in terms of their layers of significance and their effects for the short-, mid- and long-term substantive, institutional and cultural conditions in which the rule of law is supposed to exist, and which affect its operation in real terms. This can give rise to different sorts of instability, as the original geological meaning of fault lines suggests. For instance, as noted above with reference to Koselleck’s concept of sediments of time, shorter- and longer-term changes in a legal system occur at different rates, but not necessarily in harmonious parallel. A short-term change to some elements of a system may overlay deeper structural components, such as profoundly engrained forms of legal reasoning, that are resistant to change, generating friction (for example Piasenza, Reference Piasenza1979; Cercel, Reference Cercel2018). Similarly, elements of legal culture or collective memories that endure, in Jankélévitch’s terms, can be at odds with the proclaimed values of the moment, or conflict with legal residues of the undemocratic past, again causing friction or tension within the system (for example Skinner, Reference Skinner2011). Consequently, analysing the rule of law in terms of fault lines requires rejection of a periodised approach and engagement with the possibility of continuities and their disruptive effects.

Recognising forms of continuity is though both a critical opportunity and a challenge. As the examples of past-present connections in European legal systems in section 3.2 above indicated, Europe’s legal history cannot be neatly segmented and is frequently marked by underlying substantive, cultural, structural and interpretive continuities. Although legal systems can change, and the past can be left behind, continuities in national law and related practices in Europe have often been suppressed, ignored, or at the very least insufficiently acknowledged. However, although a critical approach to the rule of law thus requires reflection on the possibility of disruptive connections with the supposed past that constitute the concept’s fault lines, such an approach must also recognise the potentially negative impact of instrumental suggestions that continuities exist. For example, efforts to erode the rule of law in post-Communist states have included using a ‘frame of continuity’ with the Communist past to delegitimate constitutional developments and undermine change (Bucholc, Reference Bucholc2019, p. 96). Analysis of the rule of law’s fault lines needs therefore to be clear in its objectives. A major concern in developing any reflexive critique of liberal democracy is to avoid (inadvertently) feeding an illiberal or anti-democratic agenda.

Bringing an awareness of fault lines into analysis of the rule of law is also significant because it requires analysis of the concept’s background and context. This requires engagement with the complexity of the behavioural, systemic and cultural matrices within which the rule of law can be understood to exist and operate at a particular time and over time, thus comparing and connecting past and present manifestations and experiences. These requirements suggest that only a ‘thick’ conception of the rule of law (see section 3.1 above) can be adequately meaningful for an analysis of its fault lines. They also suggest in methodological terms that the rule of law needs to be examined through culturally embedded comparative analysis, in order to take account of the range of factors and systemic specificities that shape the rule of law in its broad contextual landscape (Legrand, Reference Legrand1996, pp. 55–63; Legrand, Reference Legrand1997, pp. 116–124; Tomlins, Reference Tomlins2009, pp. 30–31).

Drawing attention to the idea of fault lines in the rule of law, or the critical idea that the rule of law is not an infallible or seamless benchmark in principle and practice, but marked by historical fault lines, is therefore a critical corrective to a periodised concept and selective narratives. When questioning changes in the rule of law across Europe, whether in terms of backsliding, decay or other related denominations, critical evaluation needs to consider both time and history, and to be open to the possibility of inherent frictions and tensions in all types of system. Liberal democracy is precious and worth upholding, and so critical reflection on its foundations must form a key part of that endeavour.