ASIAN & COMPARATIVE LAW RULE OF LAW & STATES (WESTERN) Prof David K. Linnan Class Two- LAWS # /26/04

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THREADS Why even bother looking at Western legal antecedents & views of the State buried in public law for an course entitled Asian & Comparative Law? Start with the assumption that the “Rule of Law” means something in Western context, but what?

THREADS Legally speaking, the idea is what is the difference mostly between the underpinnings of 1. The Rechtstaat in terms of Continental European public law, versus 2. The Rule of Law style constitutionalism in the Anglo-American world (UK & US basically) Hidden assumption is that those pushing the Rule of Law tend towards poly sci as opposed to legal details, issue in Asian law context that they are trying to make legal systems

THREADS Bottomline idea of presentation that the public law underpinnings/approaches differ with 1. The Rechtstaat largely being apolitical in terms of limiting discretion philosophically and judically, versus 2. Anglo-American rule of law/constitutionalism recognizing much greater discretion in government and ultimately relying on political control to a greater extent than is commonly realized

THREADS Relating this forward, how does this shape current discussion in terms of “legal reform” versus “governance reform” in Asia, together with addressing “State” versus “Civil Society”? We will go from theoretical to concrete in terms of example

THEORY HISTORY CONCEPT OF TWO BRANCHES OF THEORY 1. GENERAL THEORY OF STATE & 2. LEGAL STRUCTURE (WHICH CONTAINS IMPLICITLY THE PICTURE OF THE STATE BEHIND LAW)

THEORY HISTORY 250 YEARS OF THEORY IN ONE EASY LESSON TO SEE WHERE SPLIT AT LEVEL ONE (STATE THEORY) IDEA THAT THIS STARTS OUT AGAINST THE BACKGROUND OF THE RELIGIOUS & CIVIL WARS OF 16 TH & 17 TH CENTURIES, WINDS UP WITH FRENCH REVOLUTION & ROMANTICISM FOLLOWING ENLIGHTENMENT 18 TH & 19 TH CENTURIES.

THEORY HISTORY Hobbes ( ) Theory of State (Leviathan) as guarantor of public peace as sovereign, essentially no focus on individual rights Pessimistic view of human nature as fact rather than moral judgment, state of nature fiendish Law as sovereign giving orders

THEORY HISTORY Rousseau ( ) Social Contract & Democracy Theory A more optimistic view of man, with the concept unlike Hobbes that sovereign authority can be given to people directly (democracy). On the legal side, fiction of general will as good of the many (but minorities?)

THEORY HISTORY John Locke ( ) Anglo-American root of control of political power & rights of individual Idea of natural law in the nature of man, idea like Hobbes of state of nature but sees in equality concept & self-interest a way out Golden rule approach also to property, society bands together for mutual protection in political community Fear of State misuse of power (human nature) opposed by division (separation) of powers in State

THEORY HISTORY Montesquieu ( ) Formalized Locke’s view of separation of powers as control on government (executive, legislative, judiciary functions) Formal separation of powers into different organs, counterbalancing concept Separately, social theory of equality as underlying concept to distinguish peoples’ historical ideas of government in different States, etc.

THEORY HISTORY Grotius-Pufendorf-Thomasius-Wolff 1583  1754 Post-medieval natural law (non-religious) Enlightenment concept of reason as nature of man (not so much pessimism, assume ultimately law is “natural” rules rather than political community result In Anglo-American legal world recognized in public int’l law, but in Continental law no separation between natural law & public law until early 1800s

THEORY HISTORY Kant ( ) In natural law & moral theory, concept of relativity and conflict between inner conviction-command & external command-law (example of monogamy vs. polygamy/re civil law vs sharia looking forward) Concept of legality as preserving maximum freedom in terms of not impinging on freedom of others while maximizing agreeement between inner conviction & external command

THEORY HISTORY Kant ( ) cont’d Concept of the State as a community defined by law (ordered liberty) Fear of coercive democracy (later Hegel, re integralism & nationalism in Indonesia)

LEGAL APPLICATION IN LOOKING AT THE THEORETICAL UNDERPINNINGS OF THE RECHTSTAAT VS. ANGLO-AMERICAN RULE OF LAW SPLIT AT STAGE TWO (LEGAL THEORY) RECHTSTAAT BUILDS ON NATURAL LAW LINE THROUGH GROTIUS-WOLFF TO KANT, WITH FORMAL REFERENCE TO MONTESQUIEU ANGLO-AMERICAN RULE OF LAW LINE BUILDS ON SEPARATION OF POWERS & POLITICAL COMMUNITY THROUGH ROUSSEAU & LOCKE

LEGAL APPLICATION Where does it make a difference legally? Look at areas like judicial versus political control at level of government under public law To the B-W police reading re discretion & legal structure (predates constitutionalism)

LEGAL APPLICATION Where does it make a difference legally? Cont’d British view (Dicey) concept of political control- King in parliament is sovereign Natural justice as equivalent of due process, but hard to uphold absent

GOVERNANCE IFI challenge of development & governance “Constitutional” idea of no internal interference & all governmental forms viewed neutrally Problem of “good governance” lack as explanation of why development did not occur (originally Africa & S. American emphasis) Later emphasis on getting away from government, or emphasizing popular in-put (Civil Society)

GOVERNANCE What exactly is good governance, and does it have any content as used in law reform? Can it be politically neutral?

GOVERNANCE IN IFI PRACTICE, LINK BETWEEN (GOOD) GOVERNANCE & LAW REFORM TIE IN BILATERAL DEVELOPMENT TO DEMOCRATIZATION MOVEMENTS POST-1990 SO IS THERE A TIE BETWEEN LAW REFORM AT PUBLIC LAW LEVEL & ECONOMIC DEVELOPMENT? CAN YOU HAVE LAW WITHOUT POLITICS?

BACK TO BEGINNINGS Arguably, the Rechtstaat does not rely on democratic control in Continental ideas of legal history since it envisions one answer (reduction of discretion in theory to zero) But the Rule of Law as asserted under Anglo- American law & views of constitutionalism appears to rely on political controls in not imagining one answer (political controls in electorate not liking choices among those permitted by discretion)