As composite polities, empires were plural legal orders. Conquest, settlement, and rule depended on elaborate arrangements to manage the relation of imperial law to local or indigenous law. Calls for impartial justice in empires emerged in the context of intricate legal conflicts over order and rights, with varied institutional trajectories as the result. The rule of law in empires must be approached as part of the history of legal politics in fluid, fragmented systems of law.

This chapter considers the criticisms of Gadamer’s hermeneutics that have recently been put forward by Michael Forster and Kristin Gjesdal. They find that Gadamer errs in rejecting the philosophy of interpretation that is put forward in the nineteenth century by Herder, Schleiermacher, and Dilthey. For these critics of Gadamer, the merit of these predecessors of Gadamer is their commitment to a methodical interpretive practice. Forster criticizes Gadamer for rejecting the attempt to recover distinct original meanings in the texts that one is considering. They find Gadamer’s hermeneutics to be relativistic. This chapter defends Gadamer against these charges.

The view of international law as a profession committed to the spread of liberal ideas emerged in Europe and North America in the late nineteenth century.1 One of those ideas was the rule of law. Attempts to realize a global rule of law and attempts to constitute an international community have long been linked. For many international lawyers, this gave international law a sense of forward movement and a clear telos, with the caveat that the reality of unequal power relations meant that international law could never be measured directly against a model borrowed from domestic law and politics.

Given the connection of “law and order” politics with conservatism, the idea of a conservative critique of the Rechtsstaat at first seems contradictory. After all, wasn’t John Adams’s insistence on defending the British soldiers involved in the Boston Massacre used as evidence for his conservatism? Didn’t Burke’s criticism of the French Revolution revolve around the preservation of law as part of a concrete order? But law and order are not identical and it is in the tension between the rule of law and the well ordered society that the possibility for conservative critique of the Rechtsstaat lies. In a time of revolutionary upheaval, furthermore, when revolutionaries proclaim the law, the legal side of “law and order” can come under fire as well.

To speak of “the rule of law” in many of the Muslim countries of the world at present may seem, not only to Westerners but to many citizens of the Islamic world, at best hypocritical and at worst a cruel joke. How, after all, can one speak of the rule of law when a woman may be killed for a marriage not approved by her father or brother, when a constitution can be changed at the whim of a ruler, or when corruption is so pervasive as to leave much of the citizenry feeling dirtied and disaffected? And yet the rule of law remains more than an ideal, more than a vague concept, and more than a useless analytic concept employed only by academic lawyers. For if we try to understand the rule of law not as a universal concept but for what it means in the context of any particular cultural tradition and its system of law, it may be possible to discern features that are not incompatible with the sense in which this phrase is commonly employed.

Herodotus’ Persian debate – a fictional conversation between three noble Persians on the relative merits of rule by one, rule by the few, and rule by all – ironically provides one of our clearest statements of Greek democratic theory.1 In the debate, Otanes, arguing for rule by all, highlights what are recognizable as the key features of Athenian democracy: isonomia (equality under the law); selection of magistrates by lot; accountability for officials; and decision-making in a deliberative popular Assembly.

Gadamer saw hermeneutics as heir to the tradition of Aristotelian practical philosophy. The exercise of phronesis, good practical judgment, helps sustain the solidarities upon which democracy depends. Phronesis is distinguished from techne, technical knowledge. Gadamer is critical of technocratic thinking. Phronesis is closely related to ethos. It has communal dimensions such that it invigorates the ethos of the society and makes possible solidarity. The basis for this is friendship. Friendship involves a life together of reciprocal co-perception.

The “rule of law” is a relatively recent addition to the development project.1 Only after the end of the 1980s, when the Cold War was over, history had ended,2 and three worlds had putatively become “one,” did it also become commonsensical for law, institutions and “governance” to be understood as integral to “development.”3 Since that time, not only have developmental institutions such as the World Bank, the International Monetary Fund and regional development banks explicitly taken up promotion of the rule of law as a core aspect of their mandates, but a significant marketplace of international, transnational, government, and domestic actors has emerged.4 The result is a multi-billion dollar industry that is centrally concerned with “the rule of law” as instrument, end, and indicator of “development,” positioned at the heart of state-making more broadly.

These words appear in a short eleven-page passage headed “The rule of law” in E. P. Thompson’s 300-page historical study of one British statute enacted in May 1723. Yet the passage, and particularly the quoted words, received enormous attention at the time and since, provoking widespread criticism as well as praise.2 Edward Palmer Thompson (1924–1993) was probably the best-known British historian of the second half of the twentieth century, acclaimed for The Making of the English Working Class.

Tucked away in a minor footnote to the final chapter of Between Facts and Norms, Jürgen Habermas (b. 1929), the Frankfurt School’s premier second-generation representative, offers a tantalizing remark about Franz L. Neumann (1900–1954), his predecessor at the Institute for Social Research and its most impressive first-generation legal thinker.

This chapter considers the third great turning point in the development of hermeneutics in Western culture. The first hermeneutics was a hermeneutics of consent. This was developed in early Christianity and by Augustine. The second turning point was in the modern Enlightenment with its classic expression by Spinoza. This is the hermeneutics of suspicion. The third turning point was inaugurated by Barth and Heidegger. Gadamer provides its fundamental book, Truth and Method. This hermeneutics may be called integral hermeneutics, which incorporates the first two turning points. This chapter considers the hermeneutics of Heidegger in its relation to Aristotle. This is followed by a consideration of Gadamer’s hermeneutics with a focus on the central role of phronesis, which shows the relevance of Aristotle. Conversation is also central to Gadamer’s hermeneutics. The chapter finally shows the relevance of Gadamer’s hermeneutics to Christian theology.

The difference between the idea of the Rechtsstaat and that of the rule of law is more than a variation on a theme. Theorists and practitioners of law’s rule would do well not to equate – for analytical as well as practical reasons – the Anglo-American way of law with what Leonard Krieger called “the German idea of freedom.”2 And yet they have and will – to the detriment, I argue in this chapter, of understanding and prescription.

State punishment, understood as hard treatment or the restriction of the liberty of the individual, has been central to modern debates about the rule of law. As a form of “dramatically coercive and burdensome” state action against the individual, punishment raises distinctive issues about the relationship between a state and its citizens, and as such requires particular justification.1 These questions of justification are typically seen as questions of who may be punished, and for what, the identification of legitimate and illegitimate forms of punishment, and indeed of the processes that must consequently be respected by the state if it is to impose justified punishment.2 It can therefore be seen that these questions are important not only in terms of justifying actual inflictions of punishment on particular individuals, but also in terms of legitimizing the institution of punishment more broadly.

Hermeneutics, critical theory, and deconstruction designate three intellectual orientations that have dominated debates in continental philosophy. All three exhibit the “linguistic turn.” The debate between Habermas and Gadamer brought Gadamer to prominence. Important for both is the Aristotelian distinction between the practical and the technical. Gadamer is more negatively critical of the Enlightenment than is Habermas. Both are concerned with the instrumentalization of reason in modernity. Yet Gadamer sees Habermas as too utopian. Habermas sees Gadamer as insensitive to the way dialogue is distorted by social forces and political power. This chapter concludes with a consideration of Gadamer in relation to Derrida and deconstruction. Both were profoundly influenced by Heidegger. Yet Gadamer emphasizes continuity, while Derrida emphasizes rupture and break. Gadamer shows us the achievement of understanding, while Derrida is preoccupied with the ways we misunderstand. Derrida and Gadamer serve as correctives of the other, just as Habermas and Gadamer serve as correctives of the other.

The rule of law is a central theme of Montesquieu’s major work, The Spirit of the Laws (1748), and in many respects it forms the conceptual core of his political theory. For Montesquieu, the rule of law means that the use of political power is subject to the formal constraint of standing rules that are codified in the positive laws of the land. It means that no one is above the law and that the actions of the state must conform in a consistent way to publicly known standards. The rule of law is the single most important factor, as Montesquieu sees it, in establishing moderation in government and therefore in protecting political liberty.

This chapter provides a biography of Gadamer and includes an overview of the philosophical work that Gadamer produced. It provides an account of his youth and education, his early career in Nazi Germany, and his career after World War II. He was named Rektor of Leipzig University in East Germany but gave up the position and came to West Germany, first to Frankfurt and then to Heidelberg. In 1960 he published Truth and Method, which slowly became recognized world-wide. He retired in 1968 and was very productive throughout his old age.

This chapter addresses whether Gadamerߣs hermeneutics should be considered a kind of relativism or a sort of realism. In this consideration Gadamerߣs treatment of the concept of truth is also presented. This chapter argues that Gadamerߣs hermeneutics is on one side of the hermeneutical fork–the side of realism, as opposed to relativism. Gadamerߣs hermeneutics is considered in relation to the work of John McDowell. For Gadamer, our freedom and our knowledge are always situated and limited, but that does not undo Gadamerߣs commitment to realism and truth.