A History of the Rule of Law (Lecture)

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


2/7

6/30/20

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


3/7

6/30/20

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


4/7

6/30/20

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




3. Formal Legality

20

John Locke

Government is based on consent

Legislation should be established by majority vote

Primacy of property rights

21




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


5/7

6/30/20

United States

FederalGovernment

Judicial Review

RepresentativeDemocracy

Laissez faire

25




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




3. Formal Legality

4. Consent of the governed


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


6/7

6/30/20

United States

FederalGovernment

Judicial Review

RepresentativeDemocracy

Social WelfareState

31




3. Formal Legality 4. Consent of the governed


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


7/7

6/30/20

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

Documents

A History of the Rule of Law (Lecture)