What Is
the Rule and Role of
Law in Societies?
Gerhard Casper
and
Erik Jensen
Summer Fellows Program
July 23, 2012
Five Questions
1.
What Orders Behavior?
1.
What is “Law”?
1.
What is a “Legal System”?
2.
What Is the “Rule of Law”?
3.
What Goods Is ROL Expected to Deliver?
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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
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”
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Habit vs. Rational Choice
• Is our behavior explained by rational
self-interest 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 – active and
deliberate – is a well-theorized
explanation of human behavior. But
Weber’s habits, customs, tradition
and convention also explain large
swaths of behavior.
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Lines on What Orders Behavior
not Clear
 Mere usage
 Consensual action
 “Oughtness”
 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
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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.”
• 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 more
generally?
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 Decisionmaking
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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4. What is “Rule of Law”?
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
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
Enforcement Problem
 Capacity of courts to enforce is
weak
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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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5. What “Goods” Does Rule of Law
Deliver?
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•
•
•
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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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