Lineages of the Rule of Law
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Description
This chapter elaborates a highly stylized and simplified account of the emergence of two features of the rule of law as commonly under- stood: predictability and equality. Legal historians would stress the role of economic, demographic, technological, scientific, religious, and cultural factors in bringing about and stabilizing institutional innovations as startlingly novel as legal certainty and equality before the law. When describing the role of important social actors in promoting or inhibiting such developments, they would weave into their story a variety of factors, including ideology, irrational passions, improvisation within inherited institutions, and the unexpected consequences of habitual behavior in a changed setting. My objective, in what follows, is both more modest and more theoretical. I aim to clarify the reasons why powerful political actors might furiously resist or warmly embrace the rule of law. We cannot explain why the rule of law does or does not emerge in a specific historical context by invoking nothing but the strategic calculations of powerful political actors. But the self-interested reasons why powerful members of a society might encourage or discourage such a development are undoubtedly relevant and deserve a focused treatment. I ask, first, why governments, with the means of repression in their hands, might be induced to make their own behavior predictable. For help in answering this question, I turn to Machiavelli. His thesis, essentially, is that governments are driven to make their own behavior predictable for the sake of cooperation. Governments tend to behave as if they were “bound” by law, rather than using law unpredictably as a stick to discipline subject populations, less because they fear rebellion than because they have specific goals (such as fending off attempts by foreign invaders to seize their territory) that require a high degree of voluntary cooperation from specific social groups possessing specific skills (soldiers) and assets (the tax base). Along similar lines, the acceptance by political rulers of other basic features of constitutional government, such as freedom of speech and parliamentary immunity, can be explained as a by-product of their attempt to obtain the information, essential to effective governance, that is locked inside the heads of knowledgeable citizens and that cannot be dislodged by repressive measures. They may also, presumably, recognize their own tendency, when shielded from criticism, to overlook dangers and make irreparable errors. For the sake of parsimony, I assume that “the political ruler” is internally coherent, capable of acting upon rational calculations, and already in full control of the means of repression. All of these traits are historical achievements, however, and would have to be explained in a fuller account. On this simplified assumption, I examine the claim that “the political ruler” first submits to regularized constraints when he perceives the benefits of so doing. At first, this claim sounds almost trivial. But it is not trivial because it generates the testable hypothesis that the rule of law will emerge or not emerge, be strengthened or weakened, be extended or contracted, as the goals and priorities of political rulers and the parameters of their calculations change. (Systems that restrain rulers constitutionally can become self-sustaining, this analysis also implies, if they manage, on an ongoing basis, to allocate power to individuals with a strong incentive to keep the system in place.) Any attempt to explain the emergence of constitutional restraints raises the question of why most governments in the past and present remain largely unbounded by law. One possible answer is that political rulers are hopelessly myopic, emotional, and incapable of acting on their own long-term interest. Alexis de Tocqueville defended exactly this position: “If remote advantages could prevail over the passions and needs of the moment, there would have been no tyrannical sovereigns or exclusive tyrannies.” Machiavelli, my guide in what follows, thinks about the matter somewhat differently. He suggests that political rulers cleave to unconstitutional methods when they anticipate that the returns to making their behavior predictable are lower than the returns to making it unpredictable. Repressive and acquisitive elites are unlikely to favor a shift toward the rule of law if they suspect that it will unhorse them. Bullies and plunderers—who could never flourish if the rules of the game were crystal clear and reliably enforced—cannot be expected to promote or embrace a system that will radically devalue the rude skills of acquisition and domination they have perfected in the state of nature. (I have drawn this conclusion after studying the Russian case.)
Source Publication
Democracy and the Rule of Law
Source Editors/Authors
José María Maravall, Adam Przeworski
Publication Date
2003
Recommended Citation
Holmes, Stephen, "Lineages of the Rule of Law" (2003). Faculty Chapters. 803.
https://gretchen.law.nyu.edu/fac-chapt/803
