What Is the Rule and Role of Law in Societies? Gerhard Casper and Erik Jensen Summer Fellows Program July 23, 2012

2015/5/173 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?

2015/5/ What Orders Behavior?  Why do we behave the way we do? Table Manners (at home, in public) Speeding Jay Walking Murder

2015/5/175 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? 2015/5/176  “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 – 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. 2015/5/177

8 Lines on What Orders Behavior not Clear  Mere usage  Consensual action  “Oughtness”  Threat of coercion

2015/5/179 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.

2015/5/1710 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.

2015/5/1711 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 2015/5/1712

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 2015/5/1713

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. 2015/5/1714

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? 2015/5/1715

2015/5/ 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.

2015/5/1717 Bureaucratic vs. Judicial 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)

2015/5/ What is “Rule of Law”? One formulation = that ROL is stage at which laws are: widely known, clear in meaning, applied equally Problem?

2015/5/1719 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

2015/5/1720 Substantive ROL Substantive ROL overlaps with formal ROL  Includes the formal attributes PLUS  ROL “Thick” or “Thin”

2015/5/1721 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

2015/5/1722 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.

2015/5/1723 Problems with “Thick” ROL Enforcement Problem  Capacity of courts to enforce is weak

2015/5/1724 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

2015/5/ 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?