弗朗西斯·福山2010 Transitions to the Rule of Law

Transitions to the Rule of Law Francis Fukuyama Journal of Democracy, Volume 21, Number 1, January 2010, pp. 33-44 (Article) Published by The Johns Hopkins University Press DOI: 10.1353/jod.0.0145 For additional information about this article Access provided by Bristol University (27 Sep 2013 17:19 GMT) http://muse.jhu.edu/journals/jod/summary/v021/21.1.fukuyama.html transitions to the rule of law Francis Fukuyama Francis Fukuyama is Bernard L. Schwartz Professor of International Political Economy at the Johns Hopkins School of Advanced Inter- national Studies. He is currently working on a book about political development, from which this article is drawn. Liberal democracy is held to be a combination of two sets of institu- tions—democratic ones that ensure that governments are accountable to popular choice, and liberal ones that provide for a rule of law. There is a huge literature on democratic transitions, much of it written since the onset of Samuel P. Huntington’s “third wave” of democratization in the mid-1970s (and often published in the Journal of Democracy). It is a bit strange, however, that relatively little analytical work has been done on transitions to the rule of law that is comparable to what has been done on transitions to democracy. Lawyers have obviously written extensively about the rule of law and its promotion in developing countries, while economists have both theorized about rule of law and sought to correlate it to economic outcomes. But there has been relatively little comparative theorizing as to why the rule of law is stronger in some countries than in others, how it evolves in relation to other institutions, and where the rule of law came from in the first place. In this article, I would like to suggest a framework for thinking about this problem, which might be the basis for a research agenda over the Journal of Democracy’s next twenty years. The first problem that arises in thinking about the rule of law is de- fining it. As with the term “democracy,” there are a wide variety of meanings given to the rule of law that make theorizing difficult. In the past couple of decades, there has been a huge amount of attention paid to what is labeled the “rule of law” as a practical issue in democracy and governance promotion. Much of this interest has been driven by econo- mists, who have their own peculiar understanding of the rule of law and as a result have a distorted view of what it is and how it comes about.1 When economists speak about the rule of law, they are usually refer- Journal of Democracy Volume 21, Number 1 January 2010 © 2010 National Endowment for Democracy and The Johns Hopkins University Press 34 Journal of Democracy ring to modern property rights and the enforcement of contracts. Modern property rights are held by individuals, who are free to sell or transfer their property without restrictions imposed by kin groups, religious au- thorities, or the state. The theory that relates property rights and contract enforcement to economic growth is straightforward. People will not make long-term investments unless they know that their property rights are secure. Similarly, trade requires contracts and a legal machinery to enforce them and to adjudicate the disputes that inevitably arise among contracting parties. The more transparent the contracting rules and the more evenhanded their enforcement, the more that trade will be encour- aged. This is why many economists emphasize the importance of “cred- ible commitments” as a hallmark of a state’s institutional development. There is at this point a substantial empirical literature that correlates strong property rights to long-term economic growth.2 The problem with the close identification of rule of law with property rights is that it excessively narrows the definition of law and is inconsis- tent with the understanding of the term traditionally held by lawyers. By the older, legal definition, the law is a body of rules of justice that bind a community together. In premodern societies, the law was believed to be fixed by an authority higher than any human legislator—either by a di- vine authority or by nature. Kings, barons, presidents, legislatures, and warlords could issue new positive legislation, but if they were to func- tion within the rule of law, they had to legislate according to the rules set by the preexisting law and not according to their own volition. This earlier understanding of the law as something fixed either by di- vine authority or by nature implied that the law could not be changed by human agency, though it could be interpreted to fit novel circumstances. With the decline of religious authority and belief in natural law in mod- ern times, we have come to understand the law as something created by human beings—that is, as a species of positive law—but only under a strict set of procedural rules guaranteeing that the laws correspond to a broad social consensus on basic values. In the contemporary United States, this means that any new law passed by Congress must be con- sistent with a prior and superior body of law, the U.S. Constitution, as ratified by supermajorities and interpreted by the Supreme Court. There is obviously some relationship between the traditional legal understanding of the rule of law and the economists’ identification of law with property rights. If a government does not feel bound by a pre- existing rule of law but considers itself fully sovereign in all respects, there will be nothing to prevent it from taking the property of its citizens or of foreigners who happen to be doing business on its territory. If general legal rules are not enforced with respect to powerful elites or against the most powerful actor of all, the government itself, then there can be no ultimate certainty about the security of either private property or trade.3 35Francis Fukuyama On the other hand, it is perfectly possible to have “good enough” property rights and contract enforcement that permit economic develop- ment without the existence of a true rule of law. A good example is the contemporary People’s Republic of China (PRC). There is no rule of law in the lawyers’ sense in China today: The Chinese Communist Party (CCP) does not accept the authority of any other institution in China as superior to it or able to overturn its decisions. While the PRC has a constitution, the CCP controls the constitution rather than the reverse. If the current Chinese government should want to nationalize all existing foreign investments in China or to renationalize the holdings of private individuals and return the country to Maoism, there is no legal frame- work to keep it from doing so. The Chinese government chooses not to do so out of self-interest, and this seems to be generally regarded as a sufficiently credible commitment to future good behavior. An abstract commitment to “rule of law” has not been necessary for the country to achieve double-digit rates of growth for more than three decades. If we define the rule of law not as credible property rights and con- tract enforcement, but as the government’s acceptance of the sovereign- ty of a preexisting body of law representing a social consensus on rules of justice, then we can proceed to ask the question: Where has the rule of law come from historically, and how might we expect it to emerge in the future? Religion and the Rule of Law If one is seeking a source of social rules that is invariant and reflects the shared moral values of a community, the obvious place to look is religion—not as it is practiced in modern pluralistic societies, but in the position that it occupied in premodern societies such as ancient Israel, medieval Europe, or the early Islamic world. Religious rules are held by believers to be the product not of human agency but of divine authority, and are therefore binding on all human agents, including the political sovereign. Indeed, most rulers in such societies never claimed to be sov- ereign; God was sovereign, and the ruler merely acted as God’s deputy or vicar on earth. It is therefore not surprising that the rule of law first originated in societies dominated by a transcendental religion, and that the first laws that rulers had to respect were religious ones. The Hebrew Bible and Talmud, the Roman Twelve Tables, the early Church decretals and can- ons, the Sunna and hadith, the Vedas and shastras were all recognized in their respective societies as shared rules of justice, and in each soci- ety—Israelite, Roman, Christian, Muslim, and Hindu—rulers explicitly recognized a duty to live under the religiously defined law. The only major world civilization in which a religiously derived rule of law did not emerge is China and the East Asian countries influenced 36 Journal of Democracy by Chinese culture. This is because China never developed a transcen- dental religion higher than ancestor worship that was broadly accepted by its elites as authoritative. Ancestor worship is not a good source of law, since no one has an obligation to worship anyone else’s ancestors; it therefore cannot impose generally binding obligations on a large so- ciety. Hence while the Chinese developed extensive legal codes during the Qin, Han, Tang, and Ming dynasties, these were all positive law— that is, enactments by the emperor, who did not recognize any author- ity higher than himself.4 Other religions introduced into China, such as Taoism, Buddhism, and Christianity, were mostly protest religions not reflecting a larger social consensus. The rulers of many societies outside of East Asia thus recognized that they lived under a law that they themselves did not create. Yet the degree to which this would impose real restrictions on their behavior depended not just on this theoretical acknowledgement, but on the insti- tutional conditions surrounding the formulation and enforcement of law. The law would become a more binding constraint on rulers under certain specific conditions: 1) if it was codified into an authoritative text; 2) if the content of the law was determined by specialists in law and not by political authorities; 3) if the law was protected by an institutional order separate from the political hierarchy, with its own resources and power of appointment; and finally, 4) if the law actually corresponded to the lived social norms and values of the community to which it was applied, including the ruling elites who presided over the political system. In contrast to other law-governed societies, Western Europe was exceptional insofar as law was institutionalized earlier and to a higher degree than elsewhere. This was probably less a function of the under- lying religious ideas than of historically contingent circumstances of European development, since the Eastern Orthodox Church never went through a comparable development. Thus in the West, the rule of law became embedded in European society even before the advent not just of democracy and accountable government, but of the modern state- building process itself. This is evident in all the dimensions of institu- tionalized law.5 Codification. In contrast to India, where the Vedas were transmitted orally and written down only at a relatively late point, the three mono- theistic religions of Judaism, Christianity, and Islam were all based from a very early point on authoritative scriptures. In both the Eastern and Western Christian churches, the Bible was supplemented by a confusing welter of Church canons, decrees, and interpretations. This changed in the late eleventh century with the rediscovery of the Corpus iuris civilis, the great sixth-century compilation of Roman law under the Emperor Justinian. The sprawling body of canon law was systematized in the twelfth century in the Decretum of the jurist Gratian. No similar ratio- nalization of law ever occurred in the Eastern church or in the Hindu 37Francis Fukuyama or Muslim traditions until the codifications that were carried out under Western influence in the nineteenth century. Legal specialization. The new system based on Roman law was spread throughout the whole of Europe from the great law school at the University of Bologna. Whereas kings, emperors, and other temporal rulers had made ecclesiastical law before the eleventh-century Grego- rian reform, law became the province first of the church and then of a legal profession trained in canon and civil law. In this respect, Christi- anity does not differ substantially from Islam, which also put law under the custody of a hierarchy of legal specialists (the ulama) or Hinduism, where the priestly Brahmin class had a monopoly as specialists in law. Institutional autonomy. “Caesaropapism” is a term coined by Max Weber to denote a situation in which temporal authorities have the pow- er to appoint and dismiss religious ones. Both the Eastern and Western Christian churches were caesaropapist until the Investiture Conflict of the eleventh century, in which a strong-willed Pope Gregory VII chal- lenged the Holy Roman Emperor’s right to appoint popes and bishops. The prolonged struggle between pope and emperor resulted in the Con- cordat of Worms in 1122, which gave the Catholic Church the right to name its own cadres. This right, together with the practice of priestly celibacy (which effectively prevented priests from trying to place kin in positions of power), enabled the church to free itself from temporal poli- tics and create what legal scholar Harold Berman labels the first modern bureaucracy, on which later state bureaucracies would be modeled.6 No religious establishment in any other cultural tradition ever succeeded in institutionalizing itself to this extent. Correspondence between law and social norms. The normative di- mension of law—that is, people’s belief that the law is fundamentally just and their subsequent willingness to abide by its rules—is key to the rule of law. The most secure form of law depends not on draconian punishments, but rather on voluntary compliance on the part of most citizens. It is not clear that Europe had a particular advantage over India or the Middle East in this regard, since the religiously based law of all three civilizations shaped and reflected broad social norms. One of the great problems with trying to import modern Western legal systems into societies where they did not exist previously, in fact, is the lack of cor- respondence between the imported law and the society’s existing social norms. Sometimes the importation of legal rules can speed up a process of social change, as when laws mandating equal rights for women are imposed in a society dominated by males. But if the gap between law and lived values is too large, the rule of law itself will not take hold. European political development was unusual insofar as a strong, dominant legal culture emerged in Western Europe during the Middle Ages before there were modern states. There was in fact a kind of trans- national legal culture, underpinned by the ecclesiastical law of the Cath- 38 Journal of Democracy olic Church, that constrained the ability of early-modern state-builders in England, France, Spain, and other Western countries to accumulate unchecked power. Few absolute monarchs were willing openly to violate the property and personal rights of their elite subjects without something approaching due process—unlike state-builders in China or Russia, who could act with much more arbitrariness and brutality. The emergence in England of a uniform common law, which was originally an extension of the law of the king’s court and was enforced by centralized royal authority, did much to legitimize property rights at a very early point in the country’s history. Europe was no different from other societies insofar as a rule of law protecting citizens against arbitrary actions of the state itself was ini- tially applied only to a minority of privileged subjects. Consider, for ex- ample, the letter by Madame de Sévigné, one of the great salon patrons of seventeenth-century France, which Alexis de Tocqueville quotes in Democracy in America. In the letter, she describes how soldiers in Brit- tany were enforcing a new tax, turning old men and children out of their houses in search of assets to seize. Some sixty townspeople were to be hanged the following day for nonpayment. She writes: “[T]he fiddler who had begun the dance and the stealing of stamped paper was broken on the wheel; he was quartered and his four quarters exposed in the four corners of the town.”7 Obviously, the French state would not have enforced such drastic penalties on Madame de Sévigné and her circle. It is therefore not true that there was no rule of law in seventeenth-century France, but the law did not regard commoners as legal persons entitled to the same rights as the aristocracy. Likewise, in the United States at the time of its found- ing, blacks were enslaved and treated as property rather than as citizens, and not even all whites were treated equally—women and white men without property were denied the right to vote. The process of democ- ratization is one in which a rule of law applying only to elites is gradu- ally expanded to include all adult persons. This pattern continues to the present day, where the elite rule of law in South Africa under apartheid was expanded to apply to nonwhites after that country’s transition to democracy in 1992. It is much easier to expand an existing elite rule of law than to create one from scratch. In both India and the Muslim world, a rule of law as we have defined it above clearly existed much as it did in Christian Europe. The law was codified by religious rather than temporal authorities; it was guarded by a separate religious institution staffed by specialists; and it was accepted as something sovereign over the will of temporal rulers. Both the Hindu and Muslim traditions differed from the Christian one in that the body of religious law was never fully systematized or codified, and neither the Brahmin class nor the Muslim ulama ever constituted themselves into a single, powerful hierarchy.8 The received bodies of law in Hinduism and 39Francis Fukuyama Islam were interpreted by a network of religious jurists—panditas and qadis, respectively—who applied existing precedents to new cases. Many people in the West have persuaded themselves that the separa- tion of church and state is somehow intrinsic to Christian society but an aberration under Islam. The truth of the matter is that the two religious traditions are more similar than different in this regard, and that the actual degree of separation between religious and secular authority de- pended very much on historical circumstance. The “two swords,” spiri- tual and temporal, were fused in the person of many Christian princes, while the dominion of caliphs and sultans often became distinct as insti- tutions in the Muslim world matured. The scholars or ulama—special- ists in shari’a or Muslim law—had their own standards and order, and temporal rulers in the Middle East needed to go to them for legitimacy and religious sanction. If the ulama were generally weaker in their abil- ity to check political power than were European churches, it was less the result of doctrine than of the caesaropapist institutional arrangements that existed in many Muslim lands. The Transition to Modernity In all three regions—Europe, India, and the Middle East—a re- ligiously based rule of law was undermined and displaced during the transition to modernity from the eighteenth century onward. In Europe, this was the result of an internal, organic process, as the Reformation underm