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China since 221B.C. & Rome from 27 B.C.

Emperor

The Rule of Law: A Brief History

Prof. Bryan Dennis G. Tiojanco 29 June 2012
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Law

People

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 by law

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.

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

Medieval European Roots of the Rule of Law

Germanic Customary Law The Roman Catholic Church The Magna Carta

No unified court system Thomas Aquinas: The sovereign is exempt from the law

King

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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

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

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

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 Church
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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

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Medieval Europe

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 a strong centralized state
Legitimacy of the law is compromised by non- or partial enforcement

Law King People

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The authority and legitimacy of rulers rested on their ability to impartially enforce laws not necessarily of their own making royal courts v. seigneurial courts
England France
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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

Evolution of the Rule of Law

1. There are Legal Limitations on Government 2. Divine/Natural/Customary Law

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Remedies were political, not legal

Revolt

Breakdown of Feudal Model of Reality

16th Century Reformation 18th Century Enlightenment

Excommunication

Deposed or beheaded

Instrumental view of law: divine, natural, and customary law gradually lost their authority over positive law, i.e., the state Rise of absolutist monarchies

King

The doctrine of the Divine Right of Kings

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Law Supplants Religion

increase in numbers and professionalization of lawyers and judges Law was becoming an established, regularized institutional presence 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 defence of liberty and a source of solidarity Sir Edward Coke to King James I: quod Rex non debet esse sub homine set sub deo et lege
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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 courts

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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
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Evolution of the Rule of Law

1. There are Legal Limitations on Government 2. Divine/Natural/Customary Law 3. Formal Legality

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John Locke
Government is based on consent Legislation should be established by majority vote Primacy of property rights

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

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Montesquieu
Separation of powers Independent judiciary Legal liberty

The Federalist Papers

To secure the public good and private rights against the danger of [factions], and at the same time to preserve the spirit 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.
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United States
Representative Democracy

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

Judicial Review

Laissez faire

Federal Government
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England: Parliamentary Sovereignty

The Common Law The Legal Profession & Common Law Courts

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
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Unwritten Constitution

English Monarchy

Women were initially not entitled to vote

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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

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
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Classical liberalism gave way to the social welfare state

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United States
Representative Democracy Social Welfare State

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

Judicial Review

Federal Government
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Elements of the Rule of Law

Law-governed model of sovereignty Autonomous Legitimizing Authority/ Independent Legal Order Well-organized political actors

China
Legalism

Mandate from Heaven

Territorial Barons

Strong State

State
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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 explicitly sanctioned against him

The Rule of Law in India

Brahmanic Religion The Brahmins Varnas & Jatis

Unorganized Brahmin class (clergy) Varnas: Brahmins (priests), Kshatriyas (warriors), Vaishyas (merchants), Sudras (everyone else) Jatis: subdivision of all the varnas

Kshatriyas

Persistent political disunity & weakness before late 20th century

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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

International Rule of Law?

Free trade, deregulation and liberalization, privatization, and protectionism favor transnational and multinational corporations Rebirth of laissez faire

Active international regulation of commercial affairs Establishment of international and regional tribunals domestic courts also enforce agreements
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2011: riches 1% control 43% of the worlds assets; richest 10% have 83%; bottom 50% have only 2% U.S. defiance of international law
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Primary References
BRIAN TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY (2005) FRANCIS FUKUYAMA, THE ORIGINS OF POLITICAL ORDER (2012)

PACIFICO AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL SYSTEM (2011)

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