The Rule and Role of Law and Its Diffusion

Draper Hills Summer Fellows Program on Democracy and

Development

Erik JensenJuly 22, 2013

http://commons.wikimedia.org/wiki/Image:Max_Weber_1894.jpg

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Questions

1. What Orders Behavior? 2. What is Law? 3. What is a “Legal System”? 4. What Is the “Rule of Law”?5. Is ROL Dependent on Regime Type?6. What Goods Is ROL Expected to Deliver? 7. Do Law and Legal Institutions Lead or

Follow Social, Economic and Political Change?

8. Empirically, how is law diffused? (case: rights in constitution-making)

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1. What Orders Behavior?

Why do we behave the way we do?

• Table Manners (at home, in public)• Speeding• Jay Walking• Murder

Postscript on Speeding Montana

1990s Montana eliminated all fixed speed limits, requiring only that the speed should be “reasonable and prudent”

• Because drivers and police had different interpretations

• Drivers became very uncertain about how fast they could drive without breaking the law

Struck down by court as excessively vague

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Basic Normative Guidance in Society

• Usage/Custom: habit; behavior taken-for-granted

• Convention: seeking approval and fearing disapproval; consensual

• Law: associated with varied phenomena -- legitimacy, norms and “coercion”

Habit vs. Rational Choice

• Is our behavior explained by rational self-interest or by habits, norms, customs and traditions?

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“People get up in the morning, they dress, they eat, they interact… they play, they make love.”

Habit and Rational Choice

• Most of what they do, say, and think during the day has little or nothing to do with “contractual” behavior, or “maximizing” in any reasonable or realistic sense….”

• Rational choice is a well-theorized explanation of human behavior. But Weber’s habits, customs, tradition and convention also explain behavior.

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Lines on What Orders Behavior not Clear

Mere usage

Consensual action

“Oughtness” – emerging oughtness = new views of what ought to be

Threat of coercion

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Legal Coercion

Max Weber’s “Legal coercion” = the coercive action of the state based on law

How does legal coercion interact with custom and convention? Where legal coercion transforms a custom into a legal obligation, it adds practically nothing to its effectiveness. And where it opposes custom, it usually fails to influence actual conduct.

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Legal Coercion

• Convention: May be far more determinative of conduct than legal coercion.

• Legal coercion motivates ‘legal’ conduct only to a slight extent; it guaranties no more than a fraction of actual conduct.

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Legal Coercion and Enforcement

Legal coercion --

• scarce commodity

• credible enforcement by public officials is expensive

2. What is Law?

Law claims to rule whatever it addresses: legal pluralism challenges this claim

Legal pluralism = multiplicity of legal orders; overlapping cultural, ethnic, religious and legal orders

Legal pluralism is a fact of life and an historic condition

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Legal Pluralism - Historic

Legal pluralism is an historic condition:

• Jus Commune (Common Law)• Lex Mercatoria (Law of Merchants)• Ecclesiastical Law (Law of the Church), Islamic

and Talmudic Law• Customary Law

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Legal Pluralism - Folk

Law as a folk concept• Law = what people within social groups have

come to see and label as “law” =

• Populist version of HLA Hart’s rule of recognition – that law is whatever the Queen and Parliament recognize as law

• Legal pluralism = wherever social actors identify more than one source of “law” within a social arena.

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Legal Pluralism - Spectrum

Central problem of legal pluralism = difficulty in defining law

Is law limited to official state “legal” institutions?

Or to state institutions? Or is law at play in any ordering of social

groups of all kinds? Is all institutionalized norm enforcement

law?

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3. What is a “Legal System”?

• Messiness in defining what constitutes a “legal system”

• Substantive content and institutional arrangements that may perform functions that implement “justice” content are diverse and dynamic.

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Bureaucratic vs. Judicial vs. Private Decision-making

• No bright line between the functions that a formal legal system should carry out and those that the bureaucracy, semi-formal or informal institutional arrangements should carry out.

(e.g., District Commissioner in Pakistan, divorce in Holland)

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Legal Substitutes for Formal Processes

Relationships (clans, tribes)

Good faith/repeat dealings

Abundant information

Guilds, associations, codes of conduct

Private security

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4. What is “Rule of Law”?

Larry Summers “blew into Jakarata for a few hours” in 1998 then proclaimed “Indonesia needs the rule of law”

(a) What did he mean by ‘Indonesia needs ROL?’

(b) Is regime-change necessary to achieve it?

(c) What goods do we expect from ROL?

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ROL Definitional Problem

Hans Kelsen: ROL is normative system backed by threat of physical force

One formulation = that ROL is stage at which laws are:•widely known, •clear in meaning, •applied equally

Problem?

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Formal Rule of Law

Formal legality publicly available general in scope prospective and certain in application clear in formulation

Democratic formal legality emphasizes and attempts to maximize

consent of governed to laws

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Substantive ROL

Substantive ROL overlaps with formal ROL

Includes the formal attributes

PLUS

ROL “Thick” or “Thin”

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ROL “Thick” and “Thin”

“Thin” includes some limitation on government action + some specification of individual rights

“Thick” implies an affirmative social welfare duty of government to:

• Make lives of citizens better• Distribute resources justly +/or• Recognize the right to dignity

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Problems with “Thick” ROL

(1) The Proxy Battleground Problem

Rule of law simply becomes a “proxy battleground,” for disputes about broader social, political and economic issues.

Resource distribution issues are handled better by other branches of government.

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Problems with “Thick” ROL

(2) Enforcement Problem

Capacity of courts to enforce is weak

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5. Is Regime Change Necessary to Achieve ROL?

Five States of Legality1. AnarchyBreakdown of indigenous social

structures

2. Despotic RuleArgentina 1976-79 where internal

secret military police played a prominent role in governance

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Rule by Law

3. “Rule by Law”• The use of law as an instrument of

domination.

• Authoritarian and oppressive

• “To my friends everything, to my enemies the law.”

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Rechtsstaat

4. Rechtsstaat emphasizes law and order

(a) all state authority governed by law(b) reason-based codification

administered by civil service(c) evenly applied and adjudicable

Trying to fit the messy phenomena of life into a Code. (Casper)

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Democratic Rule of Law

5. Democratic rule of law

(a)upholds political rights; limits state actors

(e.g., freedom of the press, free and fair elections)

(b) upholds civil rights, and

(c) holds all officials, high and low, accountable

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ROL and Pregnancy

Rule of law is not like pregnancy, you don’t either have it or not

Matters of degree with pockets of performance

Pakistan Singapore Cambodia China

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6. What “Goods” Does Rule of Law Deliver?

….

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6. What “Goods” Does Rule of Law Deliver?

• Citizen security and stability• Dispute resolution• Economic growth and development• Human rights protection• Protection from governmental

caprice and corruption

Causality?

7. Do Courts Lead or Follow Social, Economic and Political Change?

Jerry Rosenberg, Hollow Hope: Can Courts Bring About Social Change (1991) -> Michael Klarman -> Pam Karlan

•Law changes [or is upheld] when patterns of demands and expectations change

•Demand for law and legal institutions increases as economies grow ( Marx, Smith)

8. Empirically, how is law diffused?

(case: rights in constitution-making)

How does law travel across borders?

What are the purpose of constitutions?

Purposes of Constitutions

Purposes:

(1)enabling rules of governance, both general and specific;

(2)separation of powers (not mentioned in US Constitution) = necessary, but insufficient condition of liberty; not just to prevent tyranny, but to divide labor

(3)self-imposed constraint for freedomSong of Sirens: Sirens were dangerous and beautiful creatures whose

singing so enchanting that sailors were lured to shipwreck on rocky shores. In Homer’s Odyssey, Odysseus on way back to Ithaca after winning the Trojan War had sailor’s plug their ears, but he wanted to hear the sirens so he had his sailors tie him to the mast and not untie him no matter how much he begged. He begged to be untied and his sailors tied him tighter.

Other purposes?

From Weber to Quantitative Analysis of Law

Shifting gears from a socio-legal perspective to positivist quantitative examination comparing constitutional rights

Caveat: - with awareness of the “fatal attraction.”- empirical evidence on transplantation and Weber- de jure provision of judicial enforcement doesn’t

mean judicial enforcement in fact

Coded 60 rights and examined 729 constitutions adopted by 188 countries that have come into effect over the last 60 years (800 constitutions since 1787) --- 19 year shelf-life (Handout)

Is the US Constitution a leading model for constitutions of the world?

US Constitution’s Influence

1987 Time magazine breathlessly proclaimed in a special issue commemorating the bicentennial of the US Constitution that it was “a gift to all nations”

Time proudly proclaimed that 160 of 170 nations then in existence had modeled their constitutions on the US constitution.

The US Constitution was called one of the “great exports” of the US.

US Constitutional Influence

• Today, 90% of all countries have a constitution backed by judicial enforcement.

• But now there is growing evidence that now goal may be to avoid some of the perceived flaws of the US constitution than to imitate it.

Decline in Influence of US Const.

• at close of WWII, American model was the choice of 80% of constitution makers over Europe

• popularity declined during 1970s• by mid 1990s, European model had overtaken

the US model• US pioneered idea of judicial enforcement of

individual rights, which now enjoys universal acceptance, but it is no longer the leading source in how enforcement is institutionalized.

• Certainly the number of times that the US Supreme Court is cited in decisions of foreign courts has declined.

Why the decline?

(1)Catalogue of rights has grown and US Constitution not in step with mainstream on rights (rights: libertarian vs. statist).

(2)US Constitution contains a couple of unusual rights.

• Over the last 60 years, world’s constitutions have become less similar to the US

• federalism constitutionally provided (12%)• Hans Kelsen set the trend -- judicial review in courts of

general jurisdiction vs. specialized courts (constitutional courts)

• concrete review (US case and controversy) vs. European abstract review

Why the decline?

(3) US omits a number of basic rights that may be found in its practice, legislation and case law (“a bevy of platonic guardians,” perpetual constitutional convention), that aren’t found in the constitution: • judicial review, • women’s rights, • right to social security, • presumption of innocence• Civil Rights Act of 1964, the Administrative Procedure

Act, the Social Security Act

(4) US Constitution is oldest and difficult to amend.

Why the decline?

(5) Dominant institutional framework differs: • federalism constitutionally provided (12%)• rights: libertarian vs. statist• Hans Kelsen set the trend -- judicial review in

courts of general jurisdiction vs. specialized courts (constitutional courts)

• concrete review (US case and controversy) vs. European abstract review

So if the US Constitution is no longer the model, what is?

So if the US Constitution is no longer the model, what is?

Germany (Basic Law 1949)?

South Africa (1996)?

India (1949)?

Other constitutions?

What about the influence of the 100 multilateral human rights treaties?

HR Instruments

Assumption: that the rapid growth of international human rights regime has profoundly influenced the written constitutional practice at a national level.

As an empirical matter, very little is known about the impact of HR instruments [Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights).

Little effect, why?

HR Instruments

• average constitution already resemble ICCPR when it came into existence; therefore, it reflected pre-existing global trends

• average constitution has become less similar to the UDHR and the ICESCR

• regional HR instruments seem to reinforce trends in constitutional entrenchment of rights rather than generating consensus themselves

So Influence from Where? Insidious Hegemony

Canada’s Constitution

In particular, its Charter of Rights and Freedoms (1982)

Certainly among common law countries, but some civil law countries too

Empirically, how is law diffused?

Rights-related content of a country’s constitution is shaped by constitutional choices of other countries

In particular, Constitution-makers are affected by countries with whom they: (1) share a legal origin, (2) compete for foreign aid and share export market (esp. offering fair judicial process rights more so than broad liberties)(3) share a common religion, and (4) share colonial ties

 

Which Countries are Affected More?

Poorer countries are more susceptible to transnational influence than richer ones.

Rights Sweepstakes

Which rights are most popular?

Most popular

• Freedom of religion (97%)

• Freedom of press and/or expression (97%)

• Equality guarantee (97%)

• Right to private property (97%) 

Next Most Popular

• Right to privacy (95%)

• Right to privacy (95%)

• Prohibition of arbitrary arrest (94%)

• Right of assembly (94%)

• Right of association (93%)

• Women’s rights (91%)

Third Tier of Popularity

• Freedom of movement (88%)• Right of access to court (86%)• Prohibition of torture (84%)• Right to vote (84%)• Right to work (84%)• Education right (82%)• Judicial review (82%) – 1946 only 25%• Prohibition of ex post facto laws (80%)

Fourth Tier

• Physical needs rights (79%)• Right to life (78%)• Presumption of innocence (74%)• Right not to be expelled from home territory

(73%)• Limits on property rights (73%)• Right to present a defense (72%)• Right to unionize and/or strike (72%)• Right to counsel (70%)

Fifth Tier

• Right to public trial (69%)• Rights for the family (67%)• Right to form political parties (65%)• Children’s rights (65%) • Right to a healthy environment (63%)

• Minority rights (51%)• Prohibition of double jeopardy (50%)• Reference to intl HR treaties (35%)• Right to information (34%)

Bottom Tier

• Official state religion (22%)• Right to bear arms (2%)