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7/29/2019 A History of the Rule of Law (Lecture)
1/7
6/30/20
The Rule of Law:A Brief HistoryProf. Bryan Dennis G. Tiojanco
29 June 2012
1
China since 221B.C. & Rome
from 27 B.C.
Emperor
Law
People 2
Chinese Legalism
Law is simply the codification of whatever the ruler dictated
Laws are meant to reflect the interests of the ruler alone and
are not a consensus of the moral rules governing the
community as a whole
Rule bylaw
3
The Roman Empire
Lex Regia: the Roman people expressly granted absolute
authority to the emperor for the preservation of the state
Corpus Iuris Civilis
What has pleased the prince has the force of law.
The prince is not bound by the laws.
4
Medieval Europe
Period from the fifth-century collapse of the Roman Empire to
the Renaissance of the 15th & 16th centuries
The Feudal System
Local lords or powerful bishops were in effective control of their
respective manorial or church courts
Calcified social order: nobility, clergy, and serfs
No unified court system
Thomas Aquinas: The sovereign is exempt from the law5
Medieval European Roots of
the Rule of Law
King
The RomanCatholicChurch
GermanicCustomary
Law
The MagnaCarta
6
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Germanic Customary Law
Customary law was legitimized by its ancient pedigree, and
enjoyed widespread recognition
The king was a guardian of the law who didnt have the power
to declare new law
Deviations from law required cause
Germanic right of resistance:
a ruler who breached the law forfeited the right to obedience by
his subjects
A man may resist his king and judge when he acts contrary to law,
without violating the duty of fealty 7
The Roman Catholic Church
Christian thought dominated medieval western Europe
Investiture Conflict: Emperor Henry IV vs. Pope Gregory VII
Oath-taking before popes by kings confirming their
subjugation to natural, divine, and customary laws
Rendered a self-imposed obligation into a settled general
expectation
8
The Roman Catholic Church
Divine/ecclesiastical law could constrain rulers only if religious
authority was independent of political authority
Although the church did not possess military forces of its own,
it could play off rivalries of the surrounding polities
Importance of the Investiture Conflict:
Modernized the church
The Concordat of Worms (1122)
Rediscovery of Roman Law/ Development of Canon Law
Independence of the Church9
The Magna Carta (1215)
The effort of nobles to use law to restrain kings
Clause 39: No free man shall be taken or imprisoned or
disseised or outlawed or exiled or in any way ruined, nor will
we go or send against him, except by the lawful judgment of
his peers or by the law of the land.
Added a concrete institutionalized componentregular courts
and juries of peers
10
Medieval Europe
Law
King
People 11
A 4th Medieval European Root
of the Rule of law Law was rooted in religion or in customs, which bound kings
The Rule of Law was critically dependent on enforcement by astrong centralized state
Legitimacy of the law is compromised by non- or partialenforcement
The authority and legitimacy of rulers rested on their ability toimpartially enforce laws not necessarily of their own making
royal courts v. seigneurial courts
England
France 12
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A 4th Medieval European Root
of the Rule of law The Barons imposed the Magna Carta on the king not as
individual warlords seeking to exempt themselves from
general rules.
They expected a unified national government to better protect
their rights through the kings courts, and saw themselves as
representatives of a larger community
13
Evolution of the Rule of Law
1. There are Legal Limitations on Government
2. Divine/Natural/Customary Law
14
Remedies were political, not
legal
King
Ex-communication
Revolt
Deposed orbeheaded
15
Breakdown of Feudal Model of
Reality 16th Century Reformation
18th Century Enlightenment
Instrumental view of law: divine, natural, and customary law
gradually lost their authority over positive law, i.e., the state
Rise of absolutist monarchies
The doctrine of the Divine Right of Kings
16
Law Supplants Religion
increase in numbers and professionalization of lawyers and
judges
Law was becoming an established, regularized institutionalpresence shaped by an autonomous legal profession
Judges served as guardians of and spokesmen for the law
Protecting the rule of law became a rallying cry in the defenceof liberty and a source of solidarity
Sir Edward Coke to King James I: quod Rex non debet essesub homine set sub deo et lege 17
Rise of the Bourgeoisie
Kings increasingly obtained a greater part of their income
from court fees, loans, and taxing commercial activities
Kings granted cities independent charters and laws to allow
them to act as a counterweight to the lords
The urban middle class was a counterweight to the lords and
the king
Inflation sapped economic power of nobility
Practices and rules of merchants were recognized by courts18
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Liberalism
The rule of law today is widely understood in liberal terms
Legal liberty
Personal liberty
Equality
Neutrality
All these mirrored the interests of the bourgeoisie 19
Evolution of the Rule of Law
1. There are Legal Limitations on Government
2. Divine/Natural/Customary Law
3. Formal Legality
20
John Locke
Government is based on consent
Legislation should be established by majority vote
Primacy of property rights
21
Evolution of the Rule of Law
1. There are Legal Limitations on Government
2. Divine/Natural/Customary Law
3. Formal Legality
4. Consent of the governed
22
Montesquieu
Separation of powers
Independent judiciary
Legal liberty
23
The Federalist Papers
To secure the public good and private rights against the
danger of [factions], and at the same time to preserve thespirit and form of popular government
Representative democracy
Separation of powers, federalism, and bicameralism
Judicial review: the judiciary is the weakest branch, with no
army or wealth, and also the interpretation of the laws is the
proper and peculiar province of the courts.24
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United States
FederalGovernment
Judicial Review
RepresentativeDemocracy
Laissez faire
25
Evolution of the Rule of Law
1. There are Legal Limitations on Government
2. Divine/Natural/Customary Law
3. Formal Legality 4. Consent of the governed
5. Institutional Safeguards
26
England: Parliamentary
Sovereignty
EnglishMonarchy
The LegalProfession &Common Law
Courts
The CommonLaw
UnwrittenConstitution
27
Expanding the scope of
protection The democracy John Locke advocated gave the vote to only
3% of the population
In 17th century France, the law did not regard commoners a
legal persons entitled to the same rights as the aristocracy
Before it was modified in 1868 by the 14th amendment, the
1787 U.S. Constitution officially recognized slavery. It was only
in 1862 after The Emancipation Proclamation that slavery in
the U.S. was abolished
Women were initially not entitled to vote 28
Evolution of the Rule of Law
1. There are Legal Limitations on Government
2. Divine/Natural/Customary Law
3. Formal Legality
4. Consent of the governed
5. Institutional Safeguards
6. Democratization of Rights
29
Rise of the Working Class
Worsening work conditions
Labor began to organize
Strikes broke out across Europe
Expansion of the eligible electorate
Court Packing Plan & The Switch in Time that Saved Nine
Classical liberalism gave way to the social welfare state 30
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United States
FederalGovernment
Judicial Review
RepresentativeDemocracy
Social WelfareState
31
Evolution of the Rule of Law
1. There are Legal Limitations on Government
2. Divine/Natural/Customary Law
3. Formal Legality 4. Consent of the governed
5. Institutional Safeguards
6. Democratization of Rights
7. Social Welfare
32
Elements of the Rule of Law
StrongState
AutonomousLegitimizingAuthority/
IndependentLegal Order
Law-governedmodel of
sovereignty
Well-organizedpolitical actors
33
China
State
Mandatefrom Heaven
Legalism
TerritorialBarons
34
The Rule of Law in India
The Dharma-sastra: the king exists to protect the system of the
varnas, and not the other way around. The Laws of Manu: It is the law that is the King.
The epic Mahabharata: if the king violates the law, revolt is explicitlysanctioned against him
Unorganized Brahmin class (clergy)
Varnas: Brahmins (priests), Kshatriyas (warriors), Vaishyas(merchants), Sudras (everyone else)
Jatis: subdivision of all the varnas
Persistent political disunity & weakness before late 20 th century 35
The Rule of Law in India
Kshatriyas
TheBrahmins
BrahmanicReligion
Varnas &Jatis
36
7/29/2019 A History of the Rule of Law (Lecture)
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International Rule of Law?
An expanding range of subject matters are governed by
international law
Minimum government, private property, liberty of contract
Active international regulation of commercial affairs
Establishment of international and regional tribunals
domestic courts also enforce agreements
37
International Rule of Law?
Free trade, deregulation and liberalization, privatization, and
protectionism favor transnational and multinational
corporations
Rebirth of laissez faire
2011: riches 1% control 43% of the worlds assets; richest 10%
have 83%; bottom 50% have only 2%
U.S. defiance of international law
38
Primary References
BRIAN TAMANAHA, ONTHE RULEOF LAW: HISTORY, POLITICS, THEORY
(2005)
FRANCIS FUKUYAMA, THE ORIGINSOF POLITICAL ORDER (2012)
PACIFICO AGABIN, MESTIZO: THE STORYOFTHE PHILIPPINE LEGAL
SYSTEM (2011)
39
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