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THE RULE OF LAW

ORIGINS OF THE RULE OF LAW

European political development was exceptional insofar as European societies made an early exit from tribal-level organization, and did so without the benefit of top- down political power. Europe was also exceptional in that state building was based less, according to Fukuyama, on the capacity to deploy military power and more on the ability to dispense justice.

The law is a body of abstract rules of justice that bind a community together. In pre-modern societies, the law was believed to be fixed by a higher authority, either by a divine authority or by nature. Legislation, on the other hand, is a function of political power, that is of the ability of a king, a warlord, a baron or a president to enforce new rules. In fact, in contemporary developing countries, one of the greatest political deficits is the relative weakness of the rule of law. The Russian federation, for example today, stages elections, but its elites, according to Fukuyama, can break the law with impunity.

England made an early and impressive transition from a customary to a modern legal system, which constituted the basis for the legitimacy of the English state itself. Other European countries made a similar transition in the 13th century but based on a completely different legal system, the civil law derived from the Justinian code. The key to this transition on the continent was the behaviour of the Catholic Church.

THE CHURCH BECOMES A STATE

The rule of law in its deepest sense means that there is a social consensus within a society that its laws are just and that they pre-exist and should constrain the behaviour of whomever happens to be the ruler at a given time. The ruler is not sovereign; the law is sovereign, and the ruler gains legitimacy only insofar as he derives his just powers from the law.

The rule of law in Europe was rooted in Christianity. Especially since the rise of radical Islamism in the late 20th century, a lot has been made of the fact that the church and state are separated in the West but fused in Muslim countries like Saudi Arabia. This distinction, for Fukuyama, does not stand scrutiny. The Western separation of church and state has not been a constant since the advent of Christianity but rather something more spasmodic.

The Justinian Code, in fact, was a highly sophisticated compilation of Roman law produced in Constantinople under the emperor Justinian at the beginning of the 6th century. The revival of Roman law was possible because legal studies had been established on a new institutional basis, in the emerging modern university. At the end of the 11th century students flocked to the University of Bologna. The new legal curriculum exposed Europeans to a sophisticated legal system that they could readily use as a model for law in their own societies. Knowledge of the code was thus carried to the remotest corners of the continent, and law faculties were established in other cities such as Paris, Oxford, Heidelberg, Cracow and Copenhagen. The recovery of Roman law had the effect, like English Common Law, of suddenly displacing the mass of particularistic, Germanic customary law that prevailed through much of Europe and replacing it with a more consistent transnational body of rules.

Legal scholars have in fact argued that the first model of the modern bureaucratic "office" as defined by Weber was created within the new, 12th-century church hierarchy. Among the hallmarks of the modern office are a separation between the office and the officeholder; the office is not private property; the officeholder is a salaried official subject to the discipline of the hierarchy in which he is embedded; offices are defined functionally, and office-holding is based on technical competence. All of these were characteristic of Chinese bureaucracy from the time of the state of Qin, though many offices were re-patrimonialized during later dynasties.

One of the peculiar features, for Fukuyama, of European state building was its early heavy dependence on law as both the motive and the process by which state institutions grew. Specialists have grown accustomed to thinking that war and violence were the great drivers of European political development. This certainly became true in the early modern period, when the rise of absolutism was built around fiscal requirements of military mobilization. But in the medieval period states gained legitimacy and authority by their ability to dispense justice.

The emergence of the rule of law, then, is the second (the first being state building) of three components that together constitute modern politics. As in the transition out of tribal and kinship-based social organization, the dating of this shift in Europe needs to be pushed back to a point well before the beginning of the early modern period – in the case of the rule of law, to at least the 12th century. Thus two of the basic institutions that became crucial to economic modernization – individual freedom of choice with regard to social and property relations, and political rule limited by predictable and transparent law – were created by a pre-modern institution, the medieval church. Only later would these institutions prove useful in the economic sphere.

 
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