what is the rule and role of law in societies? gerhard casper and erik jensen summer fellows program...

What Is the Rule and Role of

Law in Societies?

Gerhard Casper

and Erik Jensen

Summer Fellows Program July 23, 2012

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Five Questions

1. What Orders Behavior?

1. What is “Law”?

1. What is a “Legal System”?

2. What Is the “Rule of Law”?

3. What Goods Is ROL Expected to Deliver?

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1. What Orders Behavior?

Why do we behave the way we do?

• Table Manners (at home, in public)

• Speeding• Jay Walking• Murder

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Basic Normative Guidance in Society

• Usage/Custom: habit; behavior taken-for-granted

• Convention: seeking approval and fearing disapproval; consensual

• Law: associated with varied phenomena -- legitimacy, norms and “coercion”

Habit vs. Rational Choice

• Is our behavior explained by rational self-interest or by habits, norms, customs and traditions?

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“ People get up in the morning, they dress, they eat, they interact… they play, they make love.”

Habit and Rational Choice

• “ Most of what they do, say, and think during the day has little or nothing to do with “contractual” behavior, or “maximizing” in any reasonable or realistic sense….”

• Rational choice – active and deliberate – is a well-theorized explanation of human behavior. But Weber’s habits, customs, tradition and convention also explain large swaths of behavior.

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Lines on What Orders Behavior not Clear

Mere usage

Consensual action

“Oughtness”

Threat of coercion

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Legal Coercion

Max Weber’s “Legal coercion” = the coercive action of the state based on law

How does legal coercion interact with custom and convention? Where legal coercion transforms a custom into a legal obligation, it adds practically nothing to its effectiveness. And where it opposes custom, it usually fails to influence actual conduct.

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Legal Coercion

Convention may be far more determinative of conduct than legal coercion.

• Legal coercion motivates ‘legal’ conduct only to a slight extent; it guaranties no more than a fraction of actual conduct.

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Legal Coercion and Enforcement

Legal coercion --

• scarce commodity

• credible enforcement by public officials is expensive

2. What is Law?

Law claims to rule whatever it addresses: legal pluralism challenges this claim

Legal pluralism = multiplicity of legal orders; overlapping cultural, ethnic, religious and legal orders

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Legal Pluralism - Historic

Legal pluralism is an historic condition:

• Jus Commune (Common Law)• Lex Mercatoria (Law of Merchants)• Ecclesiastical Law (Law of the Church), Islamic

and Talmudic Law• Customary Law

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Legal Pluralism - Folk

Law as a folk concept • Law = what people within social groups

have come to see and label as “law.”

• Legal pluralism = wherever social actors identify more than one source of “law” within a social arena.

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Legal Pluralism - Spectrum

Central problem of legal pluralism = difficulty in defining law

• Is law limited to official state “legal” institutions?

• Or to state institutions more generally?

• Or is law at play in any ordering of social groups of all kinds?

• Is all institutionalized norm enforcement law?

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3. What is a “Legal System”?

Messiness in defining what constitutes a “legal system”

Substantive content and institutional arrangements that may perform functions that implement “justice” content are diverse and dynamic.

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Bureaucratic vs. Judicial Decision-making

No bright line between the functions that a formal legal system should carry out and those that the bureaucracy, semi-formal or informal institutional arrangements should carry out.

(e.g., District Commissioner in Pakistan, divorce in Holland)

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4. What is “Rule of Law”?

One formulation = that ROL is stage at which laws are: •widely known, •clear in meaning, •applied equally

Problem?

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Formal Rule of Law

Formal legality publicly available general in scope prospective and certain in

application clear in formulation

Democratic formal legality emphasizes and attempts to

maximize consent of governed to laws

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Substantive ROL

Substantive ROL overlaps with formal ROL

Includes the formal attributes

PLUS

ROL “Thick” or “Thin”

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ROL “Thick” and “Thin”

“ Thin” includes some limitation on government action + some specification of individual rights

“Thick” implies an affirmative social welfare duty of government to:

• Make lives of citizens better• Distribute resources justly +/or• Recognize the right to dignity

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Problems with “Thick” ROL

The Proxy Battleground Problem

Rule of law simply becomes a “proxy battleground,” for disputes about broader social, political and economic issues.

Resource distribution issues are handled better by other branches of government.

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Problems with “Thick” ROL

Enforcement Problem

Capacity of courts to enforce is weak

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ROL and Pregnancy

Rule of law is not like pregnancy, you don’t either have it or not

Matters of degree with pockets of performance

Pakistan Singapore Cambodia China

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5. What “Goods” Does Rule of Law Deliver?

• Citizen security and stability• Dispute resolution• Economic growth and development• Human rights protection• Protection from governmental

caprice and corruption

Causality?