Fukuyama Blogging: Chapter 3 ‘The Rule of Law’
Part the third of Fukuyama’s The Origins of Political Order vol 1 deals with the second element of the triad of political development: the rule of law. Fukuyama picks up where he left off, examining the unique social fabric of Western Europe. It looks at first like Fukuyama is defending a familiar Whig view of the origins of the modern world according to which the ‘rights of freeborn Englishmen’ provided the foundation for the development of private property, prosperity and political liberty.
But Fukuyama’s argument in this part of the book is very specific and in quite sharp disagreement with lots of other scholars. For example, he picks a fight with those contemporary Whigs – neo-classical economists and like-minded historians – who equate the rule of law with secure property rights and, furthermore, hold that the latter are sufficient to ensure economic growth. According to Fukuyama this is incorrect, as ‘good enough’ property rights are sufficient for growth in the right conditions but property rights on their own will not produce sustained growth in pre-modern Malthusian conditions where technological change is only sporadic.
Fukuyama’s primary interlocutors are other conservative liberals, but he’s pretty critical of them at the same time. For example, his argument draws heavily on Hayek’s prioritisation of customary law over legislation as the most important element of the rule of law. Law must reflect:
a social consensus within a society that its laws are just and that they preexist and should constrain the behavior of whoever happens to be the ruler at a given time
Customary law, exemplified by Anglo-Saxon common law built up through countless legal judgments within individual courts, provides the basis for rule by laws and not by men – providing an escape hatch from both the ‘tyranny of cousins’ and the tyranny of tyrants. But Fukuyama disagrees with Hayek as he sees the early English state as playing an important role in fostering common law by providing ‘the King’s justice’ through travelling royal courts as an alternative to elite-dominated local courts. Like many other scholars, Fukuyama sees the English monarchic state as being unique because of it was simultaneously strong and limited – in contrast with the brittle but arbitrary character of many tyrannies.
But less important than the English state, forFukuyama, is the historic role of the Church in undergirding the rule of law inWestern Europe. Fukuyama regards religion as essential in fostering the rule of law because of its ability to imbue rules with intrinsic meaning.
Religion was essential to the establishment of a normative legal order that was accepted by kings as well as by ordinary people…The existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law… In this respect Christian princes were like Indian rajas and Kshatriyas, and Arab and Turkish sultans, who would agree that they were below the law.
Because the state was already very developed in Chinabefore any world religion could take root, the rule of law was underdeveloped compared to other civilisations. The rule of law was developed most fully in Europe because of specific way in which ‘religious authority [was] organized and institutionalized’. The key was the distinct corporate existence of the Church. Fukuyama credits Pope Gregory VII as ‘declaring independence’ from the authority of the Holy Roman Emperor in the late C11th and securing the Church’s autonomy by enforcing celibacy on the priesthood – preventing its decay into a patrimonial institution. Again, we have an actor pursuing material interests to pursue spiritual interests to pursue… and down the turtles go.
In any case, by laying the grounds for the Edict of Worms in 1122 and the separation of church and state, Gregory headed off caesaropapism – the subordination of organised religion to the state. An independent Church became the nexus for the revival of Roman law, which make a vital contribution to the development of the rule of law in Europe (especially continental Europe).
What about the rule of law in other civilisational areas? The Christian orthadox world remained strongly caesaropapist and so the development of law was stunted as it was in China. In India Fukuyama argues that the rule of law existed in the form of an oral tradition guarded by the Brahmins. But maybe it mattered little in the context of the ‘tyranny of society’ – I don’t know, this is well beyond my area of competence. The Sunni Islamic world presents a bit of a hard case for Fukuyama, as a conception of the rule of law with authority preceding that of particular rulers was certainly present in the Ottoman empire. Indeed, the Ottoman empire seems to have been governed broadly in accordance with a conception of law – it was no predatory state. But whilst Fukuyama acknowledges that the Muslim ulama (legal scholars) did help sustain the rule of law in the Middle East, they lacked the corporate independence necessary for true autonomy and resilience:
No one, that is, ever established a single Muslim “church” comparable to the Catholic church that emerged after the Gregorian reform. Like the Catholic church before the investiture conflict, the Muslim clerisy was a distributed network of priests, judges, and scholarly interpreters who read and applied Muslim case law. Within the Sunni tradition, there were four major competing schools of Muslim law that were philosophically heterogeneous and whose rise and fall were dependent on political favor. Because the ulama never institutionalized itself around a hierarchy, it was not possible to generate a single legal tradition.
Hmm… I’m not sure that Fukuyama provides a fully convincing account of the origins of the rule of law in Europe here, as there is no real knock-down explanation of why its development was more limited in theMiddle East. But in any case it’s a bold and original argument that examines a set of considerations that most political comparativists and development scholars will be unfamiliar with – I know I’m out of my depth on the empirical substance in this section.
Part 3 ends with a Chapter on state-craft without the rule of law in China, which I will discuss separately as it is a bit of a tangent from the preceding argument. Then on to Part 4 and political accountability, the final element of political development.