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THE STATE BECOMES THE CHURCH

In China, religion did not reflect social and cultural consensus, but tended rather to be a source of social protest. This was true from Taoism in the Han and Buddhism in the Tang dynasty, to the Christian influenced Taipings in the 19th century and to Falun Gong today. The Chinese state has never recognized a source of religious authority higher than itself and has easily controlled whatever priesthoods existed.

Things were totally different in India, where the Brahmaanic religion developed contemporaneously with or slightly before the period of state formation subordinated the political/warrior class – the Kshatriyas – to the priestly class, the Brahmins. Law was therefore deeply rooted in religion rather than politics.

In addition to India and Europe, the other world civilization in which a rule of law came into being was the Islamic Middle East. The emergence of modern Muslim dictatorships is a result, for Fukuyama, of the accident of the region's confrontation with the West and subsequent transition to modernity. Political and religious authority were frequently united in Christian Europe. In the Muslim world they were effectively separated through long historical periods. Law played the same function in Muslim lands that it did in Christian ones: acting as a check – albeit weaker – on the power of the leaders. Rule of law is basic to Muslim civilization, and in fact defines that civilization in many respects. Both Christian and Muslim traditions, along with Judaism, are deeply scriptural, with basic social rules being codified from an early point.

The interpretation of these rules, however, was in many cases uncertain and had to be delegated to a special class of priests – the clergy of the church, in the case of Christianity, the ulama, or scholars, in the case of Islam. In both cases, law came not from political power, as in China, but from God, who has dominion over political authorities. While Mohammed may have become a tribal leader in his lifetime, his authority over his fellow Arabs did not rest merely on his command of force but also on his role as the transmitter of the word of God. While the caliphs that followed him may have claimed universal spiritual authority, their effective jurisdiction fell far short of it.

The Indian and Arab paths then diverged greatly after the transition from colonialism to independence. The Indian Republic established a constitutional order in which executive authority was limited by law and legislative elections. The Arab world turned out very differently. The traditional monarchs put in place by the British, French and Italian colonial authorities in countries like Egypt, Libya, Syria and Iraq were quickly replaced by secular nationalist military officers, who proceeded to centralize authority in powerful executives who were limited by neither legislatures nor courts.

The American legal scholar Noah Feldman (14) argues that the rise of Islamism in the early 20th century and the widespread demand for a return to the sharia throughout the Arab world reflect a grave dissatisfaction with the lawless authoritarianism of contemporary regimes in the region and a nostalgia for a time when executive power was limited by a genuine respect for the law. He maintains that the demand for sharia should be seen not simply as a reactionary turning back of the clock to medieval Islam, but rather as a desire for a more balanced regime in which political power would be willing to live within predictable rules.

Rule of law was institutionalized to a greater degree in Western Europe than in the Middle East or India. In contrast to India, where the Vedas were transmitted orally and written down only at a relatively late point, the three monotheic religions of Judaism, Christianity and Islam were all based from a fairly early point on authoritative scriptures. The latter were all "people of the book". But only in Europe was the confusing welter of written texts, decrees, interpretations and commentaries systematized with a view toward making them logically consistent. There was no equivalent of the Justinian code in the Muslim, Hindu or Eastern orthodox traditions.

In Europe, the rule of law survived, even as the basis of its legitimacy changed during the transition to modernity. This was the result of an internal, organic process, as the Reformation undermined the authority of the Church and the secular ideas of the Enlightenment eroded belief in religion as such. New theories of sovereignty, based on the authority of the king, nation or people, began to replace the sovereignty of God as the basis for legitimacy. But by the late 19 th century, the democratic idea had gained legitimacy, and law increasingly came to be seen as the positive enactment of a democratic community. We now turn from firstly state formation and secondly the rule of law to the rise of thirdly political accountability.

 
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