The Rule and Role of
Law and Its Diffusion
Draper Hills Summer Fellows
Program on Democracy and
Development
Erik Jensen
July 22, 2013
Questions
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6.
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8.
What Orders Behavior?
What is Law?
What is a “Legal System”?
What Is the “Rule of Law”?
Is ROL Dependent on Regime Type?
What Goods Is ROL Expected to Deliver?
Do Law and Legal Institutions Lead or
Follow Social, Economic and Political
Change?
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?
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Table Manners (at home, in public)
Speeding
Jay Walking
Murder
4
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
Basic Normative Guidance in
Society
•
Usage/Custom: habit; behavior takenfor-granted
•
Convention: seeking approval and
fearing disapproval; consensual
•
Law: associated with varied phenomena
-- legitimacy, norms and “coercion”
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Habit vs. Rational Choice
• Is our behavior explained by rational selfinterest or by habits, norms, customs and
traditions?
 “People get up in the morning, they dress,
they eat, they interact… they play, they
make love.”
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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
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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
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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 Legality
1. Anarchy
Breakdown of indigenous social structures
2. Despotic Rule
Argentina 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?
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Citizen security and stability
Dispute resolution
Economic growth and development
Human rights protection
Protection from governmental
caprice and corruption
Causality?
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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)
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 freedom
Song 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.
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
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:
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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
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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
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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
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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%)
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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%)