The Reformer
Page 39
I will not attempt to define the rule of law, but I do want to make clear that I have in mind only core characteristics: that the laws be reasonably coherent, clear, consistent, transparent and available, applied “without respect to persons,”2 not allowing officials excessive discretion, not retroactive, applicable as much to officials as to citizens, and in fact applied by persons substantially independent of the other branches of government yet disciplined (largely self-disciplined) by serious craft values (for example, logic, analytical rigor, close reading of texts, tracing the path from facts and law to the outcome, addressing arguments posed by the ultimately losing party). This list is quite long. But it does not include everything good under the sun.3 People defining and promoting the rule of law are likely to be seduced by the temptations of “persuasive definition”—the practice of advocates to take a concept with positive connotations and fill it with their preferred principles or goals.4 The rule of law generally has positive connotations.5 So it is unsurprising that we often find it broadly defined. Those who ardently favor government intervention to prevent various types of private discrimination, for example, may be tempted to envisage the rule of law as requiring such interventions.6 My argument here doesn’t share this sort of conceptual imperialism.
Nor do I understand the “rule of law” to require a system of “judicial review” in the sense of judicial scrutiny of legislation for compliance with a constitution. As a simple matter of history, countries with what we normally classify as rule-of-law regimes have often lacked such review—most obviously the British state from 1689 until its acceptance of the authority of the European Court of Justice and the European Court of Human Rights. Rule of law with constitutional review would likely have seemed to the tsarist regime more like a six-by-six timber than the thin end of the wedge. We saw in chapter 11 how a number of Maklakov’s amendments to a judicial reform bill nominally increased the Senate’s power to review executive acts for constitutionality. These alterations sailed through the Duma; had anyone thought that the Senate was about to exercise such a power, it seems safe to say that there would have been formidable resistance. Of course even without this sort of judicial review, courts can sometimes use their interpretive authority to nudge a regime toward a more humane order. In any event, the case for the rule of law should not rest on any notion that the human beings who populate the courts are systematically wiser or more humane than those of other branches. As the Dred Scott case suggests, history belies or at least seriously qualifies such a sunny view.
Let’s first consider benefits and costs from the rule of law that we can ascribe specifically to the ruled and/or to the regime, then benefits and costs too diffuse for any such assignment.
For the ruled, the most obvious benefit is some degree of protection from officials’ actions beyond the scope of their prescribed authority, the very core of the rule of law. This theme was central to Maklakov’s legislative activity, starting with the memo on agrarian issues that launched him into politics. We see it in his inveighing against the regime’s threats to judicial independence and in his advocacy of improving the remedies against executive officials’ lawlessness. And for some types of laws, the field courts martial and the extraordinary security laws, he challenged both specific instances of misapplication (acts not conforming even to the broad statutes) and also the way in which broadly or badly drafted laws invited abuse by allowing officials to inflict punishments free of judicial check.
Citizens will also benefit from the practice of judicial restraint of officials’ actions, its in terrorem effect. Hosts of cases will never arise because the pattern of litigation will change officials’ incentives—from an attitude of indifference to law to anxiety about the consequences of violating it.
The benefits will in some cases be limited. In societies where the only “lawmaker” is the executive, or the executive operating through a puppet legislature, use of a text to constrain officials’ actions may (apart from preventing what amounts to an ex post facto application of law) only delay the challenged official behavior until the lawmaker has an opportunity to change the text; until the October Manifesto and the Fundamental Laws such a system prevailed in Russia.7 But the process of changing the law will entail some thinking at the highest levels of government, and the rethinking may be enough to persuade the rulers not to authorize the sort of official behavior found unlawful.
Of course where the laws are bad, insistence on legality won’t produce appealing results. But even where the citizen’s claim is rejected, the process itself can at least give the loser an opportunity to have his say and supply a focus for critique of the regime, directing public attention to absurdities, cruelties, or anomalies in existing law. And for an official on the verge of making an aggressive application of an unjust or outmoded law—the Pale of Settlement rules come to mind—merely the prospect of facing an independent tribunal may be enough to give pause.
The rule of law may occasionally even produce setbacks for the ruled. For example, when courts reject a challenge, the challengers’ position is in one sense affirmatively weakened by the validation of the officials’ action; at least it is weakened if the courts enjoy any prestige at all, which they must if the rule of law is to work. Similarly, officials who had been wary of such a challenge and had held back will now be emboldened.
More important, the “ruled” are never completely homogeneous, so an increase in the rule of law may in practice disadvantage many of them. We saw in chapter 12 how, right up to the February Revolution, Russian peasant communes could, with the consent of officials from the ministry of internal affairs, banish commune members for behavior that was “harmful or depraved” but not necessarily criminal, with the usual consequence being exile to Siberia. Maklakov and like-minded legislators sought to eliminate the power, arguing that while non-peasants also had their troublemakers, no one saw that as justifying a rule that would allow them to ship the offenders to Siberia with no consideration by an independent tribunal. This is a good rule-of-law argument, resting on the goal of protecting citizens from arbitrary government power. But of course there were many peasants, perhaps a majority, whose safety or quiet could be enhanced by use of this mechanism to remove offenders—ones whose behavior was not severe enough to be criminal or who could not be successfully prose cuted. Curtailment of government arbitrariness would have reduced the security of good citizens vis-à-vis thugs and would to a degree have imperiled social peace. Conflicts of interest such as these are surely one reason behind Tocqueville’s warning, well known to Maklakov, that the most dangerous moment for a bad government is when it begins to reform.
What does the rule of law offer the rulers? Those at the very top, with authority to adopt regulations implementing statutory law, gain a monitoring mechanism. Even an authoritarian regime has incentives against creating rules of limitless breadth or vagueness. It wants to accomplish something, and licensing officials to randomly mistreat the population will rarely be to its advantage. Judicial review of administrative action can give those at the top more confidence that subordinates will carry out their decisions as intended, that they will be less prone to bureaucratic inertia and willfulness or to “policy drift.”8
Institutions other than the judiciary can perform such supervision. Indeed, almost all bureaucracies have monitors of some kind, such as the inspectors general of the various departments of the United States executive branch. But the private lawsuit, brought by parties who have been injured or are about to be injured by official disregard of instructions, is a decentralized device that mobilizes citizens to act as the spark plug for a focused examination of official conduct. What is more, it seems relatively likely to yield attacks on the bureaucratic malfunctions that the population finds most irritating; this is especially true if a good balance is found between keeping the costs of litigation low and constraining frivolous suits. And if the judiciary emerges as a staunch defender of people and firms from bureaucratic excesses, its activities can add to th
e regime’s legitimacy.
I have so far omitted a benefit that should loom large in any assessment but doesn’t seem to belong exclusively to either the ruled or the regime. By protecting economic and commercial rights from arbitrary government agents, the rule of law enables potential entrepreneurs to engage in productive entrepreneurship. It diminishes or at times eliminates an entrepreneur’s need to focus on meeting unpredictable (and perhaps insatiable) demands from authorities. The results could benefit society as consumers, as workers, and of course as potential entrepreneurs. The population’s benefits from having economic activity driven by consumer desires rather than by government fiat (especially the fiats of random officials) would in turn redound to the regime’s advantage in increased legitimacy, not to mention generating a broader basis for securing tax revenue.
But these economic benefits come with a downside from the perspective of some in the regime. Officials whose abuse of authority has taken the form of manipulating crony capitalists (or crony socialists, for that matter,9 or even cronies with Chinese characteristics), extorting wealth by various carrots and sticks, would lose the opportunities afforded by untamed executive power and the crony relationship. From an abstract perspective one may think such losses thoroughly deserved, but the regime’s chiefs may not be able to afford such an Olympian viewpoint. The officials who benefit from crony relationships are by definition likely to have political clout. Their hostility might well abort reforms that would undercut their power, and possibly topple would-be reformers. So rule-of-law reforms that penetrate the system deeply may face the classic dilemma identified by Mancur Olson: diffuse benefits and concentrated losses. Leaders contemplating such an extreme reform may well be daunted. As a result, the hardest element of rule-of-law reform may be protection of entrepreneurs from bureaucrats’ arbitrary demands.
I have already mentioned regime legitimacy, and it too has something for both regime and ruled. For the regime the advantage is obvious. For the ruled, simply to say that the benefits deriving from the rule of law enhance regime legitimacy is to posit those very benefits—at least when we speak of legitimacy enhanced through rule-of-law improvements as opposed, for example, to military triumphs. But on the side of the ruled it is a double-edged sword. To the extent that the rule of law enhances legitimacy, it may retard the hoped-for erosion of the authoritarian system.10 The rule of law has been found to be positively correlated with political stability, in both democracies and autocracies.11 If so, then rule-of-law reform seems likely to extend the regime’s longevity.
But it seems natural to suppose that increased stability, when associated with the rule of law, will entail the growth of civil society. This in turn suggests the possibility of a virtuous circle. If courts emerged as champions of the citizenry against rogue officials, news of their activity could (depending, of course, on the brutality and thoroughness in the regime’s suppression of speech) further embolden citizens to resist excesses of authority. Courts alone are weak institutions; as Hamilton reminds us, they have “no influence over either the sword or the purse.”12 Popular support, manifested through a developing civil society (ideally amplified by an independent legislature and a free press, but we can’t assume those), is likely to be essential to courts’ effectiveness.13 The relation of rule of law and civil society is one of symbiosis and overlap: enforcement of the rule of law tends to build up civil society, which in turn both reinforces the courts and acts as an independent constraint on executive malfeasance.
Civil society may also be an indirect by-product of rule-of-law improvement. Removing arbitrary lines in order to reduce the risks of arbitrary enforcement is likely to facilitate wholesome association. We saw in chapter 9 how Maklakov, in opposing restrictions on religious minorities, stressed the risks of arbitrariness and corruption in police enforcement. Religious restrictions of the sort he attacked tend to create (and aggravate) divisions between minorities and the majority, thus impeding growth of the kind of effective groups that make up a powerful civil society. An extreme example is the way in which the Pale of Settlement confined most Jews to a limited geographic area and allowed others beyond the Pale only to the extent that they engaged in specified occupations. Removing the barriers would have tended to nurture a rich mix of variegated, complex, interlocking civic bodies, such that people in one sphere would be more likely to be aware of the interests and values of those in another, and willing to exert influence on their behalf. But, as I warned in chapter 9, in a highly anti-Semitic society, enhancements of freedom for Jews will create new occasions for friction, somewhat offsetting the advantages.
Another indirect connection appears in Maklakov’s critique of the estate-based limits on peasants. He argued that those limits deprived peasants of a vested interest in the idea of universal, legally protected rights; removal of the limits would give peasants a stake in that idea (chapter 12). Civil society and the idea of universal legal rights seem mutually reinforcing.
Rule-of-law reform enabling citizen suits against administrative agencies carries its own enhancements for civil society. Considering pending proposals for enhancing the feasibility of such suits in China, Neysun Mahboubi suggests three specific ways such litigation may help build civil society. It (1) regularizes contention between citizens and the state; (2) facilitates development of interest groups, and (3) generates public discourse about official accountability.14 The first is obviously critical in a country where “harmony” is exalted as a social value.15 The second is a sample building block of civil society, consisting of associations that arise from specific legal parties’ shared needs (an aspect of the rule of law that was far less apparent in the era before the modern state’s typically vast administrative system). The third involves creation and spread of a vocabulary for accountable governance, and an ability to deploy that vocabulary. Lawsuits in themselves are only a fraction of the discourse of accountability, but they can help propagate that discourse.
Rule-of-law reform also affects the nature of any succeeding regime. Tocqueville’s The Old Regime and the Revolution is fundamentally an account of those characteristics of the old regime in France that doomed the country to illiberal successor regimes—the Directorate, Napoleon, the restored Bourbons, and Napoleon III. He focuses on the way in which the centralization of all decision-making in Paris stifled the development of local capacities for ordering life:
When the Revolution happened, one would have to search most of France in vain for ten men who had the habit of acting in common in an orderly way, and taking care of their own defense themselves; only the central power was supposed to take care of it, so that the central power, fallen from the hands of the royal government into the hands of a sovereign and irresponsible assembly, and changed from good-natured to terrible, found nothing which could stop it, or even briefly slow it down.16
The polity Tocqueville depicts—its social groups splintered by a variety of government policies, its writers cowed by irritating but ineffective censorship, its potential leaders unpracticed at solving problems by negotiation within a clear framework of legal rights—is the antithesis of a powerful civil society and the rule of law. Indeed, it seems very like the polity inherited by the Provisional Government, which confronted acute social divisions and lacked institutions for resolving them in a framework of broadly respected rights. And the sequels in France and Russia seem quite similar.
So far, this discussion has disregarded the elephant in the room: the natural resistance of leaders at the very top to accept any institutional curtailment of their power. They may gain by institutions that provide remedies against their subordinates, but they are almost sure to want to cut the process off at the point where it would reach them—making sure, for example, that political adversaries are the sole targets of corruption charges. Some regimes explicitly privilege the elite; the Chinese Code of Conduct for judges, for example, requires them to “give priority to the cause of the Party.” It lists other goals as well, but the Party is conspicuously
first.17 Such a system has been called “rule by law”—greater efficiency in control of the lower echelons, but with broad freedom of maneuver at the top. Where this system prevails, the hoped-for benefits will be truncated.
But another element may give the rule of law some appeal, even to those at the pinnacle of political power. Autocrats in the modern world must, as did their predecessors, keep an eye out for those who would overthrow them—either simple replacements (ones who hope to follow roughly the same business model but with a new CEO) or system changers, hoping to introduce a genuine innovation such as liberal democracy. Associated with the difference in any likely successor regime is the difference between what we may call a hard and a soft landing. A dictator at risk of losing all authority must be very interested in the transition. One who has reason to anticipate a bloodbath (think of the 1918 slaughter of Nicholas II and his family or the Christmas 1989 execution of Nicolae Ceausescu and his wife) might well be willing to lose considerable power to reduce that risk. He faces a range of possible outcomes, from ability to pass a comfortable national inheritance on to his favorite child, through forced retirement in some degree of honor and safety, and finally to execution (perhaps preceded by torture). He may choose to incur a loss in power in exchange for increasing the chances for the intermediate outcome over the last. While some rulers merely tighten the reins at the first sign of popular unrest, others offer concessions. (Nicholas II had an unfortunate habit of doing both simultaneously, the classic example being his actions on February 18, 1905, when he proposed broad reform, including a promise to institute a consultative assembly and an invitation to citizens to offer suggestions for improvement of Russia, but also called on “all true Russians” to rally round the tsar and protect “true autocracy.”18)
Of course the highest officials aren’t the only people with a natural preference for peaceful evolution over violent change. Besides the healthy tendency to develop civil society, the rule of law represents a system for enforcement of bargains among competing elites. With such a system in place, parties are more likely to consider a bargain reliable. The rule of law also opens the door to a competitive electoral system, as incumbents will have assurance that if they lose office they will not lose their lives and property as well at the whim of the new authorities. Further, the rule of law is itself an institution, a practice, that exalts orderliness and regularity, values antithetical to violent revolution.