Introduction

Herodotus’ Persian debate – a fictional conversation between three noble Persians on the relative merits of rule by one, rule by the few, and rule by all – ironically provides one of our clearest statements of Greek democratic theory.Footnote ¹ In the debate, Otanes, arguing for rule by all, highlights what are recognizable as the key features of Athenian democracy: isonomia (equality under the law); selection of magistrates by lot; accountability for officials; and decision-making in a deliberative popular Assembly.Footnote ² These features suggest that the Athenians’ core concern was preventing the accumulation of power by a tyrant or abusive officials; protecting individuals from the potentially oppressive judgment of the people was not a central feature of Athenian democracy. These values produced a distinctively limited and radically democratic approach to the “rule of law,” one that focused on protection from abusive officials and equal treatment for all citizens under the law (isonomia) rather than ensuring that a stable and clear set of rules were consistently and predictably applied.

There is no surviving sustained statement of Athenian democratic legal theory. The theoretical texts we have – principally the works of Plato and Aristotle – are hostile to the democracy and offer little insight into the aims of the Athenian court system. Our best evidence for the Athenian approach to the rule of law comes from inferences from the structure and practices of the lawcourts themselves. After a brief survey of statements about the rule of law found in Athenian court speeches and literary texts, this chapter focuses on how Athenian legal institutions and court practice reflect a limited and democratic “rule of law.” I conclude with a brief discussion of how Plato and Aristotle’s writing on the rule of law responded to the Athenians’ radically democratic approach.

1 Democratic Ideals

The rule of law and the related concept of equality before the law (isonomia) were central to Athenian democratic ideology. But the Athenian notion of “rule of law” seems to have been narrower and less robust than many modern variations.Footnote ³ Athenian texts juxtapose the rule of law in a democracy to being enslaved to the whim of a tyrant or monarch and emphasize the importance of equal access to judicial institutions and equal treatment for rich and poor citizens under the law. The notion that rules should be clear and should be consistently and predictably applied notably do not play a prominent role in encomia of Athens’ adherence to law.Footnote ⁴

Athens’ democratic rule of law is often contrasted with the arbitrary and lawless rule of a tyrant. The orator Aeschines’ remark is typical: “there are in the world three forms of government, autocracy, oligarchy, and democracy: autocracies are administered according to the tempers of their lords, but democratic states according to the established laws.”Footnote ⁵ In a similar vein, Hyperides noted that “living in a democratic state where justice is established by the laws is different from passing into the power of one tyrant where the caprice of an individual is supreme.”Footnote ⁶

For the Athenians, the key feature of a democracy subject to the rule of law was isonomia, the ideal that rich and poor citizens are treated equally under the law and that no one is above the law.Footnote ⁷ Equality before the law is singled out for praise in Thucydides’ account of Pericles’ funeral oration, and is frequently highlighted in Athenian court speeches.Footnote ⁸ Euripides’ play Suppliants elaborates on this ideal: in contrast to a tyrant who can manipulate the law to his own interests, “when the laws have been written down, the weak and the rich have equal justice … and the weaker prevails over the great man if he has justice on his side.”Footnote ⁹

2 Democratic Practice

While the Athenian legal system clearly provided formal equality before the lawFootnote ¹⁰ to male citizens and provided protections from the arbitrary exercise of power by officials,Footnote ¹¹ scholars have intensely debated the question of whether Athens had a robust “rule of law” that included the consistent and predictable application of clear rules. Some scholars, primarily those of an anthropological bent, contend that the Athenian popular courts served primarily a social, political, or ritual role, and did not attempt to resolve disputes according to established rules or principles equally and impartially applied.Footnote ¹² At the other extreme, some historians have argued that Athenian juries did strictly and predictably enforce the law.Footnote ¹³ Most recent scholarship takes an intermediate position, arguing that while Athenian juries sought to reach a just outcome to the legal dispute before them, in doing so they had wide discretion that went beyond the consistent and predictable application of clear statutes, often considering a variety of other legal, equitable, and contextual considerations.Footnote ¹⁴ I outline below the features of the Athenian legal system that prevented the consistent and predictable application of clear rules. It seems that legal reasoning was considered only one of many possible strategies open to an Athenian litigant. Moreover, the lack of precise legal definitions and absence of binding precedent gave mass juries a great deal of discretion even when they were attempting to strictly apply the law. Perhaps most intriguing, it seems that the Athenians were aware of, and uneasy about, these features of their system but made a conscious choice in favor of a flexible, discretionary, and radically democratic approach to justice in their popular courts.

The Athenian legal system seems to have aimed primarily at making some form of redress available to amateur litigants rather than providing clear legal rules or making fine legal distinctions. Athenian statutes were notoriously vague; our surviving laws rarely define the offense or describe the essential characteristics of the behavior governed by the law. The surviving law of hubris, for example, offers no definition of this subjective term,Footnote ¹⁵ and the range of situations charged as impiety (asabeia) and bribery (dorodokia) suggest that these offenses may not have been clearly understood.Footnote ¹⁶ As a result, as Gagarin has pointed out, “a very wide range of conduct could be construed as wrongdoing under one of the broad categories of offenses in Athenian law.”Footnote ¹⁷ It seems that magistrates – non-experts selected by lot for a one-year term – did not play an active role in shaping complaints; we have no evidence of a magistrate rejecting a complaint, and only two instances in which a magistrate compelled the prosecutor to amend his complaint.Footnote ¹⁸ Hagnon’s proposal to try Pericles indicates how casual the Athenians could be about the legal basis of a lawsuit: according to Plutarch, he proposed that Pericles be tried before fifteen hundred jurors, “no matter whether it is called a prosecution for embezzlement (klope), bribery (doron), or a misdemeanor (adikion).”Footnote ¹⁹ In one treason case, the prosecutor admits that the defendant’s conduct does not seem to be covered by the statute, but argues that the jury should act as law-givers (nomothetai) and convict anyway because the defendant’s behavior was too heinous for a lawgiver to anticipate.Footnote ²⁰

Once in court, amateur prosecutors recounted their grievances against the defendant in layman’s terms and did not necessarily attempt to carefully parse and apply the statute under which the case was brought. Athenian litigants at times cite an array of laws that do not govern the charges in the case, and at other times do not deem it relevant to discuss – or even mention – the law under which the suit was brought. The vagueness and lack of definition of the laws meant that even discussions of the specific charge left a great deal of discretion to the jury. There is evidence that some Athenians viewed the vagueness of the laws as a merit: the Constitution of the Athenians (a description of the history and institutions of Athens written by Aristotle or his students) reports that “some men think that [the lawgiver Solon] deliberately made the laws unclear in order that the demos would have power over the verdict.”Footnote ²¹

In the absence of legislative history or juristic commentary, litigants and jurors were left with little guidance on how to interpret vague statutes. At times litigants, doubtless assisted by speechwriters, made ingenious arguments supporting their interpretation of the law based on the putative “intent of the lawgiver,” or on analogous statutes.Footnote ²² Jurors in individual cases may have been swayed by these arguments on occasion, but there was no guarantee that a future jury would reach a similar conclusion. There was no doctrine of binding precedent obligating jurors to abide by previous verdicts. Records of past decisions were not easily available to litigants who wished to use them in their speeches, and even where litigants do cite previous verdicts, they rarely compare the cases in a way that would allow the jury to extract and apply a rule of decision from the prior case.Footnote ²³

Perhaps even more problematic than undefined statutory terms from the standpoint of predictability and consistency was the lack of statutory guidance regarding exceptions, defenses, and aggravating and mitigating factors. The presence of these types of arguments in our surviving speeches suggest that Athenian jurors sometimes considered them in reaching their verdicts,Footnote ²⁴ and there is some evidence suggesting that jurors in particular cases were swayed by these arguments.Footnote ²⁵ The difficulty is that there were no clear rules, written or unwritten, about when particular defenses or mitigating factors might trump the straightforward application of the statute.

So far, we have been discussing the lack of clarity and consistency regarding the application of what a modern would recognize as traditional “legal” considerations in Athenian courts – that is, the rules defining the offense and any defenses. But the predictability and consistency of verdicts was further hampered by the jury’s consideration of what a modern would consider to be factors unrelated to whether the offense was committed.Footnote ²⁶ From an Athenian point of view, of course, these arguments were just as relevant as statutory or mitigating arguments to reaching a just resolution of the case. I point out that moderns would view them as “extra-legal” considerations simply to highlight the fact that the number and types of factors that might influence an Athenian verdict was much larger than in a modern court. Athenian litigants routinely presented a highly contextualized picture of the dispute, describing the relationship and past interaction of the parties, including their behavior in the course of litigation; general arguments from fairness; the character and public services performed by the litigants and their families; and the effect that a penalty would have on the defendant and his family.Footnote ²⁷ Moreover, litigants in cases that might appear to turn on a specific factual or technical question – for example, did a witness in a prior lawsuit perjure himself? had the statute of limitations run? was the suit barred in a paragraphe action? – typically attempt to convince the jury not only that the narrow issue should be resolved in their favor but that they are also in the right in the underlying substantive dispute.Footnote ²⁸

Will contests provide just one common example of how court speakers argue in favour of a contextualized notion of justice rather than the strict application of the law.Footnote ²⁹ Speakers often attempt to reject a valid will based on general notions of fairness. Speakers compare their relationship to the deceased with that of their opponents in an effort to argue that they have the better claim on the estate: they present evidence that they were closer in affection to the deceased, performed his burial rites, or nursed him when he was ill, and suggest that their opponents were detested by the dead man and took no interest in his affairs until it was time to claim his estate.Footnote ³⁰ One such litigant concludes with a summary of his arguments that places equitable considerations on an equal footing with the will and the law: he urges the jury to consider “first, my friendship with the men who have bequeathed the estate … then the many good deeds I did for them when they were down on their luck … in addition the will … further, the law.”Footnote ³¹

How did an Athenian jury go about evaluating the mass of information and argument, both contextual and legal, presented in a popular court case? Athenian juries offered no reasons for their verdicts and we rarely know the outcome of the cases for which speeches are preserved. One clue is the enigmatic and controversial phrase in the oath which was sworn each year by the panel of potential jurors. According to the standard reconstruction, the oath stated in part: “I shall vote according to the laws and decrees of the Athenian people and the Council of Five Hundred, but concerning things about which there are no laws, I shall decide to the best of my judgment, neither with favour nor enmity.”Footnote ³² Although some scholars have viewed the juror’s oath as evidence that the jury was limited to strictly applying the laws in all but the unusual case where there was no controlling statute, others have argued convincingly that the jurors’ “best judgment” (dikaiotate gnome) necessarily played a much greater role in legal verdicts, noting particularly the broad discretion given to juries to interpret and apply laws that were often vague and ambiguous.Footnote ³³

We cannot know for certain how the average juror conceived his task, but surviving speeches suggest that even the relative importance of legal and contextual evidence in any individual case was open to dispute.Footnote ³⁴ Individual Athenian court verdicts were the untraceable result of many individual jurors’ complicated weighing of a variety of factors, both statutory and extra-statutory. This form of ad hoc, multi-factored decision-making meant that the popular courts rarely enforced the statute under which the case was brought in a predictable or consistent manner.

Does the absence of clear rules and consistent verdicts in the popular courts suggest that the Athenians were too primitive to conceive of a robust notion of the rule of law? On the contrary, the Athenians were all too aware of, and uneasy about, the lack of consistency in their legal system. At the end of the fifth century they embarked on a short-lived attempt to make their laws more coherent, though they stopped short of limiting the jury’s wide discretion. Even more revealing, the Athenians did not employ the ad hoc, highly discretionary approach of the popular courts in all types of case: the rules in special homicide and commercial maritime procedures suggest a more robust notion of the rule of law in these cases.

At the end of the fifth century, in 411 and again in 404, the democracy was overthrown and replaced by short-lived oligarchic regimes. The revolutions revealed the fragility of the democratic constitution and the need for safeguards in the process of law-making to protect the most important Athenian laws from hasty repeal and amendment. The nature of the reforms also suggests an attempt to address the long-standing problem of inconsistency and uncertainty in the laws.Footnote ³⁵ A board of magistrates was tasked with collecting the laws and correcting any inconsistencies to produce a single, consistent code of laws. The codification should have alleviated legal uncertainty in Athens to some degree by providing a single, authoritative collection of laws in a central location that could be consulted by litigants. But the law code is not mentioned again after 400. It seems that the Athenians did strive for legal codification in an attempt to increase consistency and coherence among their body of legal rules but seem to have abandoned the idea almost immediately. We cannot know for certain why the Athenians became so quickly disenchanted with codification. One attractive theory is that the public process of constant revision of the law code would highlight the reality that the laws were not, in fact, the unchanging ancestral laws of the law-givers Solon and Draco but were in constant flux.Footnote ³⁶ The Athenians may have felt that the authority of the law was diminished rather than enhanced by codification and that the gains in legal certainty (which were in any case modest because the reforms did not change the ad hoc nature of jury decision-making) were outweighed by the reduction in respect for and authority of the laws.

The legal reforms also created a distinction between laws (nomoi) of general application included in the new law code, and decrees (psephismata), which were generally temporary or more specific enactments passed by the assembly and could not contravene a valid law. An elaborate process, nomothesia, was created that removed the power of amending or making a new law (nomos) from the popular Assembly. A board of nomothetai (chosen by lot from the jury pool) heard arguments and decided whether to accept the proposed new law. A procedure that pre-dated the reforms, the graphe paranomon, permitted individuals to challenge any legislative proposal in the Assembly as paranomon (“contrary to law” or “unconstitutional”), and have a jury hear arguments for and against the law. While it is tempting to think of this procedure as akin to modern judicial review, in practice arguments in our surviving graphe paranomon cases are not limited to whether the proposed legislation does or does not contravene existing law but also includes political or policy arguments about whether the legislation is in the city’s interest.Footnote ³⁷ The Athenian procedures for reviewing legislation may have more in common with a second chamber in a bicameral system than modern judicial review, though this analogy is also imperfect.

Unlike the revision of the laws, nomothesia remained in force throughout the period of Athenian independence and, in some scholars’ view, had a profound impact on the nature of Athenian democracy.Footnote ³⁸ By taking the power to make laws out of the hands of the popular Assembly, so the argument goes, nomothesia contributed to a transition in the early fourth century from a radical to a more moderate democracy. However, the effect of nomothesia on the workings of the legal system was much more limited: although it may have fostered more consistency among the laws, this process did nothing to alleviate the uncertainty and inconsistency caused by the highly particularized, ad hoc nature of popular court decision-making.

The most suggestive evidence that the Athenians consciously chose a highly flexible, discretionary system over a robust rule of law is provided by the special homicide court procedures which served as a notional antithesis to the popular courts. The unusual procedures in the homicide courts, particularly a rule prohibiting irrelevant statements, made these courts (in theory and, to a lesser extent, in practice) more congenial to formal legal argument. One homicide court speaker describes the special oath taken in homicide cases: “You had to swear the greatest and most powerful oath, … in very truth that you would accuse me only concerning the homicide itself, [arguing] that I killed, with the result that, had I done many bad acts, I would not be convicted for any reason other than the charge itself, and, had I done many good deeds, I would not be saved because of this good conduct.”Footnote ³⁹ The Athenians themselves perceived the homicide courts as focused on the factual allegations in the charge in a way that popular courts were not. Antiphon states, “the laws, the oaths, the sacrifices, the public announcements, and all the other things that happen in a homicide suit, are very different from other procedures because the facts themselves, concerning which the stakes are the greatest, must be known correctly.”Footnote ⁴⁰

While the reasons for the homicide courts’ special procedures is necessarily speculative, my own view is that homicide courts’ more narrow focus on the homicide charge grew out of an urgent need to foster obedience of and respect for verdicts in a fledgling legal system that was just beginning to assert control over the private use of violence. By limiting the judges’ discretion and discouraging evidence about the parties’ character and social background, these procedures may have fostered a belief in the impartiality of the judges and thereby encouraged families to appeal to and abide by the results of the official homicide procedures. Moreover, by forcing families to cast their arguments in terms of the narrow question of the homicide, the homicide procedures promoted the view that the homicide was an isolated event to be resolved rather than simply one part of an ongoing and escalating cycle of violence that reached beyond the individual killer and victim to encompass their families as well.

The unusual homicide procedures suggest that the Athenians were capable of imagining a more formal legal approach but reserved this approach for a small minority of cases. At the same time, the idealization of the Areopagus, the main homicide court, as the finest court in AthensFootnote ⁴¹ indicates anxiety and ambivalence about the choice to favor flexibility and discretion over consistency and predictability in the popular courts.

In the middle of the fourth century, special procedures were introduced for maritime commercial cases.Footnote ⁴² A written contract was required to bring this type of suit, and the surviving maritime speeches tend to focus more narrowly on the contractual dispute and less on the character of the litigants than similar nonmaritime commercial cases. These differences seem to stem from a need to facilitate trade by offering a predictable procedure for enforcing contracts and thereby to attract foreign merchants to Athens. Further, in judging claims of noncitizens, who made up a significant portion of the merchant litigants in maritime cases, Athenian jurors would be less eager to look beyond the terms of the contract to enforce social norms of fair dealing and good conduct. In this one area of law, the costs associated with flexible justice outweighed the benefits, and steps were taken to narrow the jury’s approach in an effort to enhance the predictability of verdicts.

The distinctive procedures in homicide and maritime cases cannot be explained as part of an evolution towards a rule of law: the homicide procedures pre-date the popular courts, while the maritime procedures were introduced toward the end of the classical period. The jarring differences in the level of formality in these courts were the product not of progress but of ambivalence. The varied approach stems from a deep tension in the Athenian system between a desire for flexibility and wide-ranging jury discretion as opposed to consistency and predictability. The choice to favor flexibility in the vast majority of cases reflects not only a normative belief that a wide variety of contextual and equitable factors were often relevant to reaching a just decision but also a political commitment to popular decision-making in the direct democracy. Classical Athens thus serves as an example of a highly contextualized and radically democratic approach to the rule of law.

Conclusion

Greek political thinkers of the fourth century – most notably Plato and Aristotle – reacted against the Athenian democracy’s radical approach to the rule of law. Space does not permit a comprehensive treatment of the complicated, and often contradictory, approaches to the rule of law in these authors.Footnote ⁴³ Instead, I will offer a few general observations about how these antidemocratic authors rejected the democracy’s approach while nevertheless agreeing that flexibility in the interpretation of rules was necessary for justice.

In the Republic, Plato favored rule by a few enlightened individuals who are guided by reason and political expertise rather than bound by strict laws. In the Statesman he notes that laws are often too rigid and general to reach the best outcome in particular cases: “it is impossible to devise, for any given situation, a simple rule which will apply to everyone forever.”Footnote ⁴⁴ In the Statesman and the Laws, Plato admits that the ideal of rule by enlightened individuals is often not practical, and offers a strict rule of law as a second-best option.Footnote ⁴⁵ In both these works, Plato conceives of a state where the laws are strictly applied and difficult to change; in the Laws he repeatedly states that all citizens should be ‘slaves to the law.’Footnote ⁴⁶ Yet compliance with law should come first and foremost through internalization of the norms embodied in law rather than through punishment and deterrence and statutes were to include preambles to persuade citizens of the law’s virtue.

Aristotle similarly rejected the ad hoc approach of Athenian juries, criticizing radical democracies for their tendency to allow popular decision-making to override the law.Footnote ⁴⁷ He concludes that law should be authoritative in most cases, but admits that they sometimes “go astray.”Footnote ⁴⁸ Elsewhere, he suggests that equity should temper the strict application of written law (“equity is justice that goes beyond the written law”), and that justice is a broader concept than written law: “justice consists in both that which is lawful and that which is fair.”Footnote ⁴⁹

While both Plato and Aristotle advocate a more robust rule of law with a stricter application of written law than that practiced in Athens, both also notably acknowledge the desirability of providing flexibility to ensure justice in the individual case. In the spectrum of Athenian institutional and philosophical approaches to the rule of law we find, in the first legal system we know very much about, the fissure between following generalized rules and doing justice that has haunted debates over the rule of law ever since.

Introduction

The difference between the idea of the Rechtsstaat and that of the rule of law is more than a variation on a theme. Theorists and practitioners of law’s rule would do well not to equate – for analytical as well as practical reasons – the Anglo-American way of law with what Leonard Krieger called “the German idea of freedom.”Footnote ² And yet they have and will – to the detriment, I argue in this chapter, of understanding and prescription.

The eminent Scottish legal philosopher Neil MacCormick is among those who, erroneously, have claimed that “no significant difference” existed between the Rechtsstaat and the rule of law.Footnote ³ Given MacCormick’s standing in the English-speaking world, his argument has been influential, and it is plausible, up to a point. Because the article in which he advanced it enjoys the status of a recurring – if rarely interrogated – footnote, I use it to frame my critique of extant accounts about how the Rechtsstaat and the rule of law conceptually relate.Footnote ⁴ The late MacCormick advanced several subsidiary claims, each of which, I submit, is problematic. I take issue with three of MacComick’s propositions in particular: (1) that the concepts of the rule of law and the Rechtsstaat share the same foundational principles; (2) that the differences between them are merely semantic; and (3) that advocates of the Rechtsstaat and the rule of law have been committed to the same ideal of rule. By paying close attention to each of MacCormick’s interpretive failings, I hope to provide readers with an improved understanding of the long gestation of the idea of the Rechtsstaat, how it relates to that of the rule of law, and why, in the twenty-first century, it may, globally, matter even more than the much-touted ideal of the Anglo-American way of law.

It is commonplace to equate the Rechtsstaat and the rule of law. Eminent legal scholars like T. R. S. Allan and Martin Krygier did so very recently.Footnote ⁵ Their inclination – and that of many others – to elide historical, philosophical, and conceptual differences when thinking about these contending visions of law’s rule is understandable, sensible even. After all, the tradition of Germany’s postwar Rechtsstaat – a form of rule that chastized elites invented after World War II to make amends for, and prevent a return to, dictatorship – is an impressive specimen of law-based rule. The constitutional patriotism that its diligent practice has inspired over the last seventy years does bespeak an intellectual convergence of sorts between this latest manifestation of that country’s Rechtsstaat tradition and the kinds of rule of law practices we commonly associate with England and the United States. But the twenty-first century incarnation of Germany’s Rechtsstaat is, in key respects, an aberration in the institutional evolution of the Rechtsstaat-tradition which it is said to represent. Therefore one ought not to generalize, on the basis of Germany’s postwar experience alone, about the idea of the Rechtsstaat – and its relationship to the rule of law.

The universe of the world’s Rechtsstaaten is not an n of 1; it is considerably larger.Footnote ⁶ I submit it is historically, philosophically, and conceptually problematic to reduce the idea of the Rechtsstaat to that of the rule of law. Doing so distorts not only the convoluted history, both material and intellectual, of the Rechtsstaat’s gestation in Germany, but also, and more importantly, the many histories of its diffusion elsewhere. For there exists a global history of the Rechtsstaat. Only it has not yet been written, which is why so few can readily see it.Footnote ⁷ Wrapping one’s head around this little-known history necessitates a contextual – rather than a purely conceptual – inquiry into what is a much-misunderstood tradition of governing through law. By examining, with Samuel Johnson, “the laws and customs of foreign nations,” we stand to gain an improved understanding of what the Rechtsstaat tradition is, how it relates to that of the rule of law, and why this difference matters more than MacCormick thought.

1 Rechtsstaat beyond Borders

The idea of the Rechtsstaat has – globally speaking – been no less influential than the idea of the rule of law. It has left an institutional imprint on societies far and near, and it has done so for centuries. This continental idea – let us call it “rule under law” – pre-dated the Dicyean conception of the rule of law by half a century. It is widely known that the French term État de droit is a literal rendering of the Rechtsstaat concept. The French embrace of it represents a successful attempt at transplanting the original logic of the Rechtsstaat by way of institutional mimicry.Footnote ⁸ Less well known are other histories of institutional borrowing, many of them farther afield. They are well worth revisiting when it comes to thinking about (embarking on) transitions to – and from – the rule of law. Just as the English way of law found admirers beyond England’s borders, there developed elsewhere a demand for the German idea of freedom.

The Afrikaans regstaat is derived from the Rechtsstaat tradition, as is the Dutch rechtsstaat, which, of course, influenced the development of the former. Also derivative of the idea of the Rechtsstaat are the Italian Stato di diritto, the Russian pravovoe gosudarstvo, the Polish państwo prawa, and the Spanish estado de derecho. As a global phenomenon, the Rechtsstaat tradition has long rivaled that of the rule of law, which, over the centuries, it has, in certain parts of the world, gradually come to resemble. Given the salience of the Rechtsstaat tradition in the history of legalism from the nineteenth century to the present, it is imperative not to equate it, and the manifold practices that it continues to inspire the world over, with the rule of law tradition. Nor must we let local histories of convergence distract us from the fundamental differences – historical, philosophical, conceptual – that long were (and in many cases continue to be) at the heart of these contending ways of thinking about law as rule.

I argue that both the rule of law tradition and the Rechtsstaat tradition – which I will also refer to, more generally, as the rule under law tradition so as to acknowledge the many non-German variants that have sprung up – came to be invented as responses to the rule by law tradition. The invention of these traditions took place at around the same time, but in response to very different local exigencies, differences that MacCormick acknowledges, but which he does not take into account.

2 Visions of Politics

To illuminate the differences between the Rechtsstaat and the rule of law traditions, I trace their origins to three alternative ways of seeing politics. Let us call them, for simplicity’s sake, absolutism, paternalism, and liberalism. Each of these “visions of politics,” to use Quentin Skinner’s term, provides a fundamentally different perspective on the relationship between state and society. Skinner has spelled out the key disagreements between two of these traditions, absolutism and liberalism:

Skinner glossed over a third vision of politics, however. I call this vision paternalism. My use of the term “paternalism” is anachronistic, but, like absolutism and liberalism, it captures aptly the essence of this third nineteenth-century vision of politics.Footnote ¹⁰

All definitions of paternalism center on the interference of a state (or an individual) in the affairs of another. As an exercise of power, this interference takes place against the will of the other, and thus amounts to an intervention in domestic affairs. Paternalism, generally speaking, is founded on the assumption that individuals, whether subjects or citizens, are not capable of acting in their own best interests.Footnote ¹¹ Acting on this condescending view of society’s members, a subset of rulers in the nineteenth-century, especially in continental Europe, adjusted their vision of politics accordingly. They charted a pathway to rule by blending elements of absolutism and liberalism. Some altered course out of necessity (to stave off revolution), others out of conviction (to initiate reform).

In the case of post-revolutionary France, for instance, “[t]he constitutional arrangements of 1814 marked a positive attempt to invent a workable combination of royal and parliamentary authority.”Footnote ¹² There, an “aristocratic liberalism” developed in the wake of revolutionary defeat.Footnote ¹³ France’s royalists were clamoring to sustain the empire by other means. Led by the likes of René de Chateaubriand, Charles Cottu, and Vicomte Jean-Baptiste Martignac, the enlightened wing of the country’s royalist movement during the so-called Bourbon Restoration (1814–1830) dreamt up an institutional architecture to be erected on the foundations of both liberty and aristocracy. Their call for “intermediate bodies” – what Alexis de Tocqueville, influenced by the ideas of aristocratic liberalism, called “secondary powers” – designed, as they were, to halt the march of liberalism and the restoration of absolutism, also became a rallying cry of long-standing liberals like Charles Dupont-White who, in 1864, presented a case for “liberty along royalist lines.”Footnote ¹⁴

The fact that even staunch opponents of Napoleon III such as Dupont-White were converted to the cause of aristocratic liberalism goes to show that the country’s royalists, save for a few dozen ultraroyalistes in the Chamber of Deputies, “were not the mindless reactionaries they are often made out to be.”Footnote ¹⁵ To be sure, France’s aristocratic liberals were not democrats; but neither were they defenders of the ancien régime. Inspired by Montesquieu’s Esprit des lois, they favored, both philosophically and practically, a rudimentary form of constitutionalism. To advocates of limited self-binding, the idea of constitutional monarchy was very attractive indeed. As self-declared custodians of ancient (as opposed to modern) liberties, the goal of France’s aristocrats was to hold in check the central government in Paris, to mediate between the sovereign and the people. Their authoritarian legalism (borne out of an aristocratic liberalism) vindicated certain demands of the Revolution. They accepted rules for the game of politics (as codified in, most influentially, the Code civil), which gave citoyens room for play, but they did not give away the game itself.

Although the European Enlightenment laid the seeds for two revolutions – the 1776 one of thirteen American colonies, and France’s Revolution of 1789 – it also paved the way for its opposite. Especially in the German lands, an “enlightened” type of authoritarianism gained popularity. There, several sovereigns (though far from all) discovered reason (or Vernunft in German) as a tool of state-building. Rulers like Prussia’s Frederick II, better known as Frederick the Great, purported to perfect their societies by maximizing utility, by pursuing reasons of state. To some observers, this “science” of government was a strategic ruse, a cooptation of Enlightenment values in the service of unfreedom.Footnote ¹⁶

But not everyone demurred over this idealized state of affairs. Even the supposed first theorist of the Rechtsstaat, Immanuel Kant, took a shine to this third vision of politics. The godfather of nineteenth-century German liberalism wanted reasonable rule – but not at all costs. It was his radical followers, not the philosopher himself, who clamored for a revolutionary legalism.Footnote ¹⁷ It is not only a conceptual but also an empirical distortion to claim, as Hans-Joachim Lauth and Jennifer Sehring do, that the idea of the Rechtsstaat “always implies the inclusion of human rights.”Footnote ¹⁸ It was not always thus. For most of the history of the Rechtsstaat, rex mattered more than rights. As Ingeborg Maus, the notable legal theorist, put it: “Kant’s entirely contentless, purely formal conception of the Rechtsstaat was capable of withstanding post-Enlightenment regressions,” by which she meant the injection of the concept with metaphysical or otherwise substantive notions of the public good, including human rights.Footnote ¹⁹ Attempts “to humanize the practice of law” in the German principalities unlike in France, were not the revolutionary byproduct of “a passion for freedom and a tempestuous demand for reform” by a large class of the citizenry.Footnote ²⁰ Instead, they stemmed from “the altruistic paternalism of enlightened authorities eager to perform their duty.”Footnote ²¹ Law ruled in this eighteenth-century vision of politics, as it did in France, but the fundamentals of its rule were structured very differently.

Most significantly, the German idea of freedom paid no heed to the principle of equality. The General Land Law for the Prussian States, the Preußische Allgemeine Landrecht, is a case in point. Inspired, like the Code civil in France, by Enlightenment thinkers’ preferences for codification, the General Land Law left the unequal stratification of Prussian society untouched. “There is no suggestion in the Code that citizens should ever be free from the tutelage of the state or given the opportunity to create his own social world in a responsible manner.”Footnote ²²

This crucial difference aside, French legalism and German legalism in this period embodied the same logic of rule. No longer absolutist, but not yet liberal, in the eighteenth and nineteenth centuries the law of both lands was shot through with “paternalistic authoritarianism.”Footnote ²³ It was the age of enlightened despotism, an age that found philosophical justification in Hegel’s defense of constitutional monarchy.Footnote ²⁴ The institution of constitutional monarchy solved, for Hegel, the problem of social order. It was a way “to reconcile the subjective freedom of individuals with the free and rational direction of public affairs.”Footnote ²⁵

Law ruled rather differently across the Channel. In England, liberalism, not paternalism, was the guiding vision of politics, and thus central to the construction of law as a social imaginary. In accordance with this construction, law was widely regarded as a check on – not channel of – sovereign power:

Although both the concept of the rule of law in England and that of the Rechtsstaat in the German-speaking territories were byproducts of rationalism’s victory over Christianity’s salvation narrative, their ideational and institutional development was owed to “rival Enlightenments.”Footnote ²⁷

Nineteenth-century paternalism, as I conceive of it, was a liminal form of rule. Neither purely absolutist nor entirely liberal, it conjured a vision of politics sui generis, a vision betwixt and between absolutism and liberalism. It is from this vision of politics that the Rechtsstaat tradition sprang. To fully grasp this liminal moment in the evolution of law, a brief excursus on the rule by law tradition is in order. Why? Because the Rechtsstaat tradition has affinities not only with the rule of law tradition but also with the rule by law tradition. Common to all three ways of seeing is the goal of reducing arbitrariness. They view law as an institution capable of stabilizing expectations about social outcomes, of turning “absolute uncertainty” into “organized uncertainty.”Footnote ²⁸ What separates these visions of politics are the specific virtues they ascribe to law.

3 Rule by Law

Thomas Hobbes founded the rule by law tradition, if we believe David Dyzenhaus, “in opposition to the conception of the rule of law exemplified in the writings of Sir Edward Coke according to which the common law, as interpreted by judges, contains fundamental legal and moral principles which condition the content of enacted or statute law.”Footnote ²⁹ Hobbes had no qualms about authoritarian legalism. He considered it a moral good. For him any transformation of sovereign power into legal right was a worthy achievement – even if the state’s infrastructural power in a given setting was such that it had the capacity, at any moment, to crush an established system of rights.

Hobbes saw virtue in tempering power, even if it could not be constrained. He did not think rule by law offered a solution to the problem of anarchy. But he did believe authoritarian legality could make life in the state of nature more bearable, hospitable even. As Dyzenhaus writes, “Hobbes makes room for much of what the rule of law tradition takes to be worthwhile about government according to law,” but he does it in a “less parochial” and “theoretically and politically more convincing” fashion “than that tradition.”Footnote ³⁰ Hobbes, a few hundred years before Francis Fukuyama, was thinking about how to encourage transitions to the rule of law.Footnote ³¹ His answer was as simple as it is timeless and wise: expect less from the law and you might see it take on a life of its own. Or, as the World Bank put it more recently: “Formal law is usually applied first to nonelites (‘rule by law’); the shift to ‘rule of law’ occurs when the elites themselves accept the law’s limitations.”Footnote ³²

The concept of law – in the rule by law tradition – presupposes the concept of the state. In this legal imaginary, the sovereign – be it a monarch or government – ranks supreme. William Sherlock, in 1684, gave apt expression to what rule by law meant in the seventeenth and eighteenth centuries, when he declared that “a Soveraign Prince does not receive his authoritie from the laws, but the laws receive their authoritie from him.”Footnote ³³ A century and a half later, John Austin provided the philosophical foundation for Sherlock’s sentiment, when, in 1832, he established the “scientific” study of law and gave it an auspicious name: legal positivism.

In the rule by law tradition, law is what sovereigns make of it. At their most extreme, they exercise “arbitrary executive powers” and abridge liberties at will.Footnote ³⁴ It is a case of legalism as utility. “Rule by law carries scant connotation of legal limitations on government, which is the sine qua non of the rule of law tradition.”Footnote ³⁵ The argument goes that as long as a government acts through law – anywhere, anyhow – the rule by law obtains.

Let me relate this tradition to the vision of politics from which, on my account, it sprang. The rule by law tradition, in England and elsewhere, is historically tied up with varieties of absolutism. Addressing Parliament on September 17, 1656, Lord Protector Oliver Cromwell described in the starkest terms the state of law in his deeply divided country: “There is one general grievance in the nation. It it is the law.”Footnote ³⁶ England’s “wicked and abominable laws,” he urged, were in Parliament’s power to alter.Footnote ³⁷ By drawing attention to the arbitrariness of everyday law, Cromwell’s opening speech captured an essential feature of the rule by law tradition, a violent tradition that he, ironically, himself kept alive. For Cromwell “deeply distrusted human institutions,” which is why he, as an anti-formalist, never developed any expressive attachment to law.Footnote ³⁸ Law for him was a means to an end, nothing less but certainly nothing more. As Cromwell thundered in his 1656 speech: “[I]f nothing should ever be done but what is according to law, the throat of the nation may be cut while we send for some to make a law.”Footnote ³⁹ Cromwell believed in the instrumental function of law. He considered neither morality nor legality one of law’s virtues. As contemptible human forms, they were to him nothing but “dross and dung.”Footnote ⁴⁰ The way Cromwell saw it, the role of law was incidental, not central, to the creation and maintenance of social order.

The rule by law tradition, as I have sketched it, is relevant to understanding the similarities – and differences – between the two intellectual movements that sought to rein it in: the rule of law tradition and the Rechtsstaat tradition. Cognizant of the latter’s global reach, and taking my cue from the late Harold Berman, I also refer to the latter as “the rule under law tradition.” But let me start with the better-known of the two traditions.

4 Lex, Rex

Brian Tamanaha thinks it essential – Jeremy Waldron does not – to distinguish the rule by law tradition from the rule of law tradition. “The emptiness of formal legality,” writes Tamanaha,

In the rule of law tradition, the concept of the state presupposes the concept of law. This is an inversion of the rule by law tradition, against which advocates of the rule of law, like Sir Edward Coke, railed. In that tradition, as we have seen, the state comes first, and the law follows. Such was also the situation in early modern England.Footnote ⁴² The transition from rule by law to rule of law there got underway in the sixteenth century, during the reign of King James I, when “the English crown vastly extended its reach – its capacity to motivate its servants – by an appeal to the prestige of English positive law.”Footnote ⁴³ The turn to law was a calculated move: the Crown was blighted not only by a lack of “coercive power” but also by weak “bureaucratic muscle.”Footnote ⁴⁴ The sovereign’s attempt to rule through law absolutely had unintended consequences because

England was a dual state, consisting of two halves: a prerogative state and a normative state.Footnote ⁴⁶ Under the Stuart monarchy, the two institutions became direct competitors, a schizophrenic state of affairs that led to the emergence in the realm of what I have elsewhere theorized as “authoritarian rule of law.”Footnote ⁴⁷ As Alan Cromartie writes, “within the professional world of the lawyers themselves, ideas were being developed that could absorb the royal absolute power within the sphere of legal processes.”Footnote ⁴⁸ In other words, seventeenth-century England had more to show for than rule by law, but it did not yet possess the rule of law.

We can glimpse the antecedents of the rule of law in everyday life. There, the sense of law’s omnipotence was amplified by a rise among the English in the demand for litigation and an exponential growth of the legal profession. Between the 1520s and the 1620s, for example, the number of active barristers increased from about fifty to around five hundred. The legalization of everyday life came unexpected to most. An acquaintance of Thomas Hobbes, the Earl of Newcastle, registered his surprise: “[A]fter the Reformation, and dissolution of the abbeys, then the Law crept up, and at last grew to be so numerous, and to such a vast body, as it swelled to be too big for the kingdom.”Footnote ⁴⁹

Despite such misgivings from the landed gentry, respect for the law in the kingdom was at an all-time high. The expanded and increasingly professionalized education of lawyers led to their re-socialization. Henceforth, they exhibited “an increasing readiness to think of common law as general custom, that is, as a set of determinate rules, created by the people. This picture of the law was well adapted to limiting the powers of the monarch,” which is why, at that moment in English history, the rule of law tradition was on the precipice of invention.Footnote ⁵⁰

Thompson called the invention of the rule of law “a cultural achievement of universal significance.”Footnote ⁵¹ And he was right, “the imposing of effective inhibitions upon power and the defence of citizens from power’s all intrusive claims,” first successfully attempted in England, was a remarkable accomplishment.Footnote ⁵² The jury is still out as to whether the rule of law is “an unqualified human good,” as Thompson, controversially, also claimed. But the line of those keen to tell the tale is long. The term itself, as Otto Kirchheimer observed, “is a token of gratitude to a political success story.”Footnote ⁵³ John Phillip Reid shares that sentiment, though he reminds us that the idea “belonged to the seventeenth and eighteenth centuries. It was the gravid doctrine that formed the cornerstone of the jurisprudence of liberty in the years when liberty was struggling to survive.”Footnote ⁵⁴ What is the import of this for understanding the relationship between the Rechtsstaat and the rule of law?

Enter Friedrich Hayek. The libertarian Nobel Laureate in economics grew up with the Rechtsstaat in his native Austria but became an ardent advocate of the rule of law. Hayek thought the institution of the rule of law superior to that of the Rechtsstaat. This in itself raises questions about MacCormick’s claim that the Rechtsstaat and the rule of law are nigh identical. In The Constitution of Liberty, Hayek described with awe the “great event” that he believed set England on its path toward the rule of law: the abolition in 1641 of the country’s so-called prerogative courts. “In the debates of the following twenty years,” Hayek wrote, “the central issue became increasingly the prevention of arbitrary action of government.”Footnote ⁵⁵ Throughout these debates, he noted, “the governing idea was that the law should be king.”Footnote ⁵⁶ Hayek found a formula for this idea: “Lex, Rex.”

Borrowed from Samuel Rutherford’s 1644 treatise by the same title, Hayek used it to heap praise on the English rule of law, specifically on attributes that he thought had been purged from the Rechtsstaat tradition in the long nineteenth century.Footnote ⁵⁷ He laid the blame squarely at the door of legal positivism, which, he complained,

5 Rex, Lex

What Hayek dismissed as “mere legality,” most theorists of the Rechtsstaat long regarded as the institution’s cardinal virtue, certainly up until 1945. After the initial perversion and eventual destruction of the previous Rechtsstaat tradition during the Nazi dictatorship, a reinvention, in Germany at least, was attempted. It was a successful experiment in legal reimagination. In this period, the postwar-Rechtsstaat began to resemble the rule of law, which is why the likes of MacCormick and Allan and Krygier are in the habit of equating the Rechtsstaat and the rule of law, of thinking both concepts express “the same ideal.”Footnote ⁵⁹ They do not, except in normative accounts that generalize about the idea of the Rechtsstaat solely on the basis of its late modern instantiation.Footnote ⁶⁰

The constitutional entrenchment of morals in the law by way of the 1949 Grundgesetz, while bringing the Rechtsstaat in a substantive alignment with the rule of law, did not alter the centrality of the state – its phenomenological significance – in Germany’s social imaginary.Footnote ⁶¹ MacCormick made a crucial observation that becomes relevant here: When German constitutional lawyers speak of “the state,” he observed, their British counterparts will speak of “the Crown” because “the state” is not an idea relevant to their understanding of the concept of law. It is for this reason, as Nicholas Barber writes, that “the rule of law can pass over one of the core concerns of the Rechtsstaat: how to achieve harmony between the state and the law.”Footnote ⁶² Despite a convergence in legal practices, the issue Barber highlights is critical to grasping a fundamental difference between the traditions of the Rechtsstaat and of the rule of law.

In Germany, the concept of Recht (law) stands and falls with the state (Staat) – even in the twenty-first century. In the Rechtsstaat tradition, law derives from the state. If a shorthand were needed, Rex, Lex would be it. The sovereign – whether in the form of a monarch or the people – is law’s overlord. A persistent feature in the long and winding history of the German Rechtsstaat, Girish Bhat writes, is the “fixed, continuous, and consistently influential role of state power in German aspirations towards a true Rechtsstaat.”Footnote ⁶³ A few years before the end of apartheid, Loammi Blaau reflected on the relationship between the Rechtsstaat and the rule of law from a South African perspective. In that country’s mixed legal tradition, the idea of the Rechtsstaat was well known, as regstaat in Afrikaans and as rechtsstaat in Dutch. With the future of South Africa in mind, Blaau makes the important observation that in England “from the seventeenth century on the rule of law was a symbol of resistance against attempts by the Stuart kings to institutionalize an absolutist regime.”Footnote ⁶⁴ The hallmark of the rule of law tradition, as I use the term, is a belief in the morality of formally enacted rules, in their rightness. In contradistinction to the belief in the utility of formally enacted rules – their usefulness – that I took to be a defining characteristic of the rule by law tradition, in the rule of law tradition the legitimacy of law matters just as much as the legality of law.

In the Rechtsstaat tradition, this was not always the case. The invention of the concept began as a play on words. In 1798, Johann Wilhelm Petersen published Litteratur der Staatslehre.Footnote ⁶⁵ It was an effort to describe and defend what he called “the science of the principles according to which a polity should be founded, arranged, and governed” (“die Wissenschaft der Grundsätze, nach welchen ein gemeines Wesen gegründet, eingerichtet und regiert werden soll”).Footnote ⁶⁶ A disciple of Kant’s, Petersen, who is better known under his pseudonym Placidus, endeavored to invert the study of law in the German lands, to popularize a new way of seeing public law. To this end, he made a quip. He heaped a measure of ridicule on the distinguished professors of public law, the “Staats-Rechts-Lehrer,” by comparing their conservative mores unfavorably with those of a new brand of enlightened thinker, the “Rechts-Staats-Lehrer.”

As early as 1796, another of Kant’s disciples, Georg Samuel Albert Mellin, made mention of the idea of a “rechtlicher Staat” (“legal state”), a German translation of Kant’s concept of the “status iuridicus,” which appears in several of the latter’s writings, including Zum ewigen Frieden (Perpetual Peace). Recent scholarship has shown that Kant’s concept of law was fully formed as early as 1784, more than a decade before the publication of Einleitung in die Rechtslehre (1797), which is why at the beginning of the Rechtsstaat there stands, as so often in the annals of German political thought, Immanuel Kant.Footnote ⁶⁷ Although Robert von Mohl is credited with coining the term itself, Kant’s concept of the status iuridicus is widely regarded as the earliest articulation of the idea of the Rechtsstaat.

But it is important not to lose sight of key differences in the institutional trajectories of the Rechtsstaat and the rule of law: “In contrast to the placid career of the [r]ule of [l]aw throughout the nineteenth century, the German Rechtsstaat retained some elements of a snake charmer’s performance, remaining an index of partly fulfilled and partly outstanding claims.”Footnote ⁶⁸ What dubious features did Kirchheimer have in mind? He, like many other critics of the Rechtsstaat – Hans Kelsen prominent among them – was keenly attuned to the danger that the principle of individual liberty could gradually recede into the background and “the liberty of the social collective” (“die Freiheit des sozialen Kollektivums”) move to center stage.Footnote ⁶⁹ Kirchheimer, with good reason, feared, given the institution’s counterrevolutionary history, that rule by Rechtsstaat was dangerously susceptible to illiberalism. Leonard Krieger thought the same. He linked the idea of the Rechtsstaat to a vision of politics committed to “conservation as well as liberalization.”Footnote ⁷⁰ In this vision, no really existing Rechtsstaat was “univocally liberal.”Footnote ⁷¹ In contrast to the doctrine of the rule of law, that of the Rechtsstaat has always been “concerned more with the redefinition than with the limitation of the state.”Footnote ⁷²

Of great significance for the ideational development of the Rechtsstaat tradition, Kant aside, were Georg Wilhelm Friedrich Hegel and especially Johann Gottlieb Fichte. The details of their belief systems need not concern us here. Suffice to say, both embraced the distinction between what Kant, in The Metaphysics of Morals, called “Legalität (Gesetzmäßigkeit)” and “Moralität (Sittlichkeit).”Footnote ⁷³ Although not new, the separation of law and morals in their philosophical writings gained new traction in that each theorist considered them to be separate but equal categories of analysis. Kant held that the eradication of “Willkür,” or arbitrariness, was an important step toward freedom. It hinged, he argued, on the provision of legality, not of morality as such. Fichte went even further in emphasizing the priority of legality. On his argument, the legality of law can, under certain circumstances, even render law’s rule legitimate. A legitimate Rechtsstaat, because it contributes to the maintenance of social order, Fichte surmised, was valuable for creating moral citizens.

6 Rule under Law

Instead of seizing upon rights as a means of politics, as rule of law theorists were wont to do, the early theorists of the Rechtsstaat favored the promotion of rules. Instead of elevating, by way of law, the status of individuals, they lowered the status of the state. The codification of rules tempered sovereigns, it did not tame them. And yet the legalization of politics meant that, over time, the arbitrariness of prerogative rule was becoming a thing of the past. Sovereigns ruled not just by law; they also ruled through law. Rex, Lex was the order of the day.

Whereas in the rule of law tradition, the law has always tended to function as a limit to politics, in the Rechtsstaat tradition, the law has been both lever and language of politics. The difference is not trivial. In the former legal imaginary, the law is a constraint on rule, in the latter a conduit of rule. This fundamental difference brings us back to the theoretical relationship between state and society – and the implications of alternative visions of politics. “Liberty,” in the Rechtsstaat tradition, “is not presupposed by the law but is considered as a product of the law. The distinctive mode of the Rechtsstaat lies in the connection between authority vested in the conservative aristocratic state, and protection of the new civil liberties: the latter being understood as a service offered through the state.”Footnote ⁷⁴ What we encounter here is the distinction between individual liberty and political liberty, as theorized by Benjamin Constant. The distinction, of which more below, is tied up with the history of the early modern state. The formation of national states in Western Europe went hand in hand with “their progressive appropriation of the means of producing law.”Footnote ⁷⁵ The birth of leviathan was accompanied by “a transition from law as a limitation on the state to law as a product of the state,” a development in the history of ideas that had its origins in the decline of the natural law tradition and the rise of command theories of law.Footnote ⁷⁶ Put differently, the facticity of “state law” created the intellectual space for thinking about the “law state,” which is how the idea of the Rechtsstaat gained in popularity on the continent:

In the postrevolutionary period of the nineteenth century, these years of authoritarian renewal, a reactionary idea of the Rechtsstaat took hold of Germany. The concern for law and liberty, this hallmark of the liberal variant of the Rechtsstaat, was pushed to the margins of legal and political thought. No longer an interventionist state, as Mohl had envisaged it, the Rechtsstaat was reimagined as a purveyor of form – not substance. Ernst-Wolfgang Böckenförde thinks this transformation in the discourse about the Rechtsstaat was fueled by the fact that some of the goals of its liberal proponents had been achieved.Footnote ⁷⁸ Indeed, there is merit to the claim that the demand for administrative law led to the proliferation of formal (instead of substantive) conceptions of the Rechtsstaat in this period. However, the influence of conservative legal thought cannot be gainsaid. We must factor in both material and ideational factors to understand the rise of the reactionary Rechtsstaat in the late nineteenth century. Two of its most influential theorists were Friedrich Julius Stahl and Rudolf Gneist.

The religious Stahl, detested the revolutionary furor of 1830 and 1848. And he was an intellectual enemy of Mohl’s. More than a few of his contemporaries regarded him as an arch conservative advocate of a Christian state, as someone who administered freedom only in “homeopathic drips” (“homöopathischen Tropfenteilchen”). Stahl's definition of the Rechtsstaat is, more than anything, proceduralist: “The state shall be a Rechtsstaat, that is the slogan, and in reality, also the impulse of our time. It shall determine with precision and firmly secure the nature and boundaries of its reach as well as the free sphere of its citizens … That is the concept of the Rechtsstaat … It does not at all denote the goal (Ziel) and content (Inhalt) of the state, but only the nature (Art) and character (Character) required to realize them,” that is, the state’s substance.Footnote ⁷⁹ Taking a leaf from Stahl, Gneist called for “government by law” (“Regierung nach Gesetzen”).Footnote ⁸⁰ He helped popularize the notion that the achievement of procedural justice was more important than the pursuit of more far-reaching, substantive forms of justice. Gneist is most famous for conceiving and promoting a system of administrative law courts, what became known as Verwaltungsgerichtsbarkeit. That institutional design was progressive without being radical. But despite this liberty-enhancing response to the supremacy of bureaucracy, Gneist was an unapologetic statist who condoned few of the revolutionary ideas of 1789.Footnote ⁸¹ Kenneth Ledford has summarized well the effects of the failed revolution of 1848: “After 1850, German thought conceived of the Rechtsstaat as the ‘state of well-ordered administrative law,’ including the availability of meaningful review of all administrative actions in judicial form.”Footnote ⁸²

A new era of the Rechtsstaat began in the late 1870s.Footnote ⁸³ Increased state interventionism spelled a rapid expansion of public law that lasted up until World War I. The authoritarian Rechtsstaat, with its quest for law and order, became the preferred institutional design of the times. Born of concerted resistance by reactionary forces in the German empire to the idea of the rule of law, as they saw it performed in the kingdoms of England and Scotland, it became a counterideal.

Acting as norm entrepreneur was also Paul Laband. The influential jurist distinguished the concept of the Rechtsstaat from what he believed to be its antonym: despotism (Despotie). Whereas rules of law (“Rechtsregeln”) governed the Rechtsstaat, arbitrariness (“Willkühr”) held sway in a despotic state.Footnote ⁸⁴ And yet, Laband was no liberal reformer. For him, as for most other German-speaking theorists of this period, the Rechtsstaat was a state of law, but not necessarily one of morals. Characteristically, Laband wrote of “subjects” (“Unterthanen”), not “citizens” (“Bürger”), as Mohl had. Laband deemed their station in life subordinate to that of the state and its officials: “The state does not face its members as an equal subject, but as a gentleman equipped with imperium,” by which Laband meant the power to command.Footnote ⁸⁵ In this formative era, conservative intellectuals stripped the concept of the Rechtsstaat of most of the substance with which liberal theorists had equipped it just a few decades earlier. “Beginning with Carl Friedrich von Gerber, passing through Paul Laband up to Georg Jellinek, the conception of the Rechtsstaat underwent a profound transformation that marked the definitive defeat of the liberal standpoint.”Footnote ⁸⁶ Rights continued to matter, but, as Martin Loughlin explains, “[w]ithin the frame of this positivist jurisprudence, rights are created only through objective law: they therefore are entirely conventional concepts. Once this manoeuvre was set in place, the concept of [the] Rechtsstaat itself could be subsumed in the concept of Staatsrecht.”Footnote ⁸⁷

To the extent that the rise of the rule of law neutered the sovereign state in England, the principle of the Rechtsstaat in the rest of nineteenth-century Europe merely channeled it. When the rhetoric of the Rechtsstaat seized the legal imaginations of the chattering classes, the days of the interventionist Polizeistaat, and the wanton and condescending rule that was its wont in the sixteenth and seventeenth centuries – especially in the Russia of Peter the Great and the Austria of Joseph II – were numbered. But, again, it would be a mistake to think that law turned liberal with the arrival of the Rechtsstaat, let alone democratic, as a result of it. The idea of the Rechtsstaat, as Brian Tamanaha reminds us, predated liberalism. It was a preexisting condition, if you will. Unlike the idea of the rule of law, “it is not inherently tied to liberal societies, or to liberal forms of government.”Footnote ⁸⁸

Harold Berman, for example, traced the idea back to the Papal Revolution of 1075–1122, this epic struggle between ecclesiastical and secular forces over the nature of rule. On the European continent, this “total transformation,” as he called it, was not limited “to such issues as the struggle for papal control over the church and for the freedom of the church, under the papacy, from secular domination.”Footnote ⁸⁹ A whole lot more was accomplished, including, as Joseph Strayer reminds us, “the invention of the concept of the State.”Footnote ⁹⁰ The revolution in law that Pope Gregory VII’s ultimately failed quest for papal supremacy unleashed was

The medieval revolution in law had long-run consequences for legal development in Europe, especially on the territory of what would become modern Germany, where it established the intellectual antecedents for the rise of the Rechtsstaat. As Berman explains,

The Rechtsstaat tradition, invented seven centuries after the Papal Revolution, rests, more than anything, on a belief in the legality of formally enacted rules, in their lawfulness. Whereas the rule of law, ties in with the concept of the “state-in-society,” as Joel Migdal’s uses the term, the idea of the Rechtsstaat certainly in the nineteenth century and early twentieth century, enabled “the rule of the state over society.”Footnote ⁹³ In this rule under law tradition, as Berman has called it, “[l]aw is the specific voice of the state and expresses its own will: law is not the constraint but rather the ‘form’ of the state’s will.”Footnote ⁹⁴

This brings me to another difference that – historically and philosophically – has set the idea of the Rechtsstaat apart from the rule of law tradition. From the outset, the latter turned on the hinge of individual liberty. The Rechtsstaat tradition, by contrast, was premised on the realization of political liberty. Or, as Benjamin Constant put it, “Individual liberty … is the true modern liberty. Political liberty is its guarantee, consequently political liberty is indispensable.”Footnote ⁹⁵ Most nineteenth-century theorists of the Rechtsstaat, including those who sought to import, export, or otherwise transplant the institution, were advocating a legalism that guaranteed, first and foremost, political liberty. They were far less concerned than the English (or liberty-seeking Americans) about due process protections for individuals. Whereas in the rule of law tradition, the individual made the state, in the Rechtsstaat tradition, the state made the individual, which explains why the majority of theorists and practitioners of the Rechtsstaat, up until the middle of the twentieth century, paid more heed to the legality of rules than to their morality.

The Anglo-American way of law was too revolutionary for many on the continent, especially for the absolutist and aristocratic hardliners who were clinging for dear life to governmental power in the old regimes. The rise of that form of paternalism we now call “enlightened absolutism” ushered in a tradition of law that ruled without morals. This counterrevolutionary effort, as Marc Raeff writes,

During the second half of the eighteenth century, the codification of the Rechtsstaat seized the European continent. From one country to the next, sovereigns were “emphasizing the individual’s duties at the expense of his rights.”Footnote ⁹⁷ The vigorous institutionalization of Europe’s Rechtsstaaten amplified “the leadership role of the state, that is, of the political power.”Footnote ⁹⁸ It is important to not lose sight of the path-dependent effects of these legal developments on the continent. In the late nineteenth century, “every citizen was put to serve the state’s requirement of ongoing modernization. It was the last step in the conversion of the single individual from a creative force into an instrument of modernity for the benefit of the state.”Footnote ⁹⁹ This history of paternalism, as I have called it, retarded transitions from authoritarian rule and interfered with transitions to democracy. At the same time, it created the conditions for the emergence of the welfare state in the late nineteenth century.

State dirigisme – so integral to the German idea of freedom – is anathema to the Anglo-American way of law, which is why Hayek resented the Rechtsstaat and was “dreaming the rule of law.”Footnote ¹⁰⁰ In his normative account of the rule of law, Hayek endeavored to subordinate rex to lex. The way he saw it, the concept of the rule of law was preferable to that of the Rechtsstaat because it successfully stood the idea of the latter on its head. Hayek applauded this reversal in the ordering of rex and lex. Nineteenth-century advocates of legalism, he argued in the 1950s, had on the European continent been faced from the very beginning with “the existence of a highly developed central administrative apparatus,” one that “had grown up unfettered by the restrictions which the [r]ule of [l]aw places on the discretionary use of coercion. Since these countries were not willing to dispense with its machinery, it was clear that the main problem was how to subject the administrative power to judicial control.”Footnote ¹⁰¹

The key difference between the Rechtsstaat tradition, with its deep roots on the European continent, and the rule of law tradition, with its Anglo-American heritage, has to do with the question of where the rights of individuals originate. Long-standing differences in legal styles – differences that pre-dated the nineteenth-century discourses about the Rechtsstaat and the rule of law – also mattered. They are important to take into account when comparing the two traditions. Konrad Zweigert and Hein Kötz have summarized them succinctly: “Common Law comes from the court, [c]ontinental law from the study; the great jurists of England were judges, on the [c]ontinent professors.”Footnote ¹⁰² In the civil law tradition, to which the idea of the Rechtsstaat will forever be tied, “lawyers think abstractly, in terms of institutions; in England concretely, in terms of cases, the relationship of the parties, ‘rights and duties.’”Footnote ¹⁰³ Because these differences in legal reasoning do correspond to actual differences “in the [c]ontinental and English mentalities, attributable to different historical developments,” one ought to inquire into their moralities and trajectories before rushing to conflate the Rechtsstaat and the rule of law.Footnote ¹⁰⁴

Similarities notwithstanding, the differences between these legal imaginaries are not trivial. The idea of the Rechtsstaat is the less legalistic of the two. Its inherently political – and thus impure – conception caused Hans Kelsen to reject the idea. He, like Hayek, dreamt of a state constituted by law. Kelsen’s was an attempt to ground rex in lex by way of “a wonderful abstract representation of a pyramidal legal system” in which every legal norm derived from another legal norm.Footnote ¹⁰⁵ In the perfectly law-governed state Kelsen conjured, these norms ultimately derived their validity from one “basic norm,” the Grundnorm.Footnote ¹⁰⁶ Like Hayek, Kelsen had no use for the concept of the Rechtsstaat. Kelsen rejected the “political” assumptions associated with the idea. For him the concept was fatally premised on the state’s legal personality – and as such on misguided faith in the supremacy of rex over lex.Footnote ¹⁰⁷ An effort to banish the state from the concept of law, Kelsen’s pure theory of law, however, had little effect on theories of the Rechtsstaat in the 1920s and 1930s. In this time of great disorder, thinkers from Herman Heller on the left to Carl Schmitt on the right were clamoring for a “new statism.”Footnote ¹⁰⁸

Whereas the idea of the Rechtsstaat has long been philosophically and historically intertwined with the theory of the state, the rule of law has not. In conventional usage, the rule of law is more akin to “a quality of, or theory about, legal order.”Footnote ¹⁰⁹ From the perspective of transplantation, this lack of a necessary connection with rex, thinks Barber, “may prove a source of strength for conceptions of the rule of law.”Footnote ¹¹⁰ Whether it is – and under what conditions – is a question for another day.

Conclusion

The supremacy of rex over lex is not germane to the German variant of the Rechtsstaat. The state performs a similar role in the French État de droit, and it occupies an elevated position in the Russian concept of pravovoe gosudarstvo. It also dominates the law in the Italian Stato di diritto and is central to the Spanish estado de derecho. Given the global reach of these five languages alone – German, French, Russian, Italian, and Spanish – could it be that, contrary to MacCormick’s claim, differences in naming are not just semantic? It stands to reason that they are indicative – and constitutive – of more fundamental differences in the social imaginaries that guide us in thinking about the rule of law, and, as such, are worthy of investigation not elision.

The idea of the Rechtsstaat, like that of the rule of law, is an invented tradition. In this chapter, I have tried to recover some of the logics of its invention. I have tried to sketch in the really existing differences that distinguished in centuries past the Rechtsstaat tradition and that of the rule of law – these rival ideas of freedom. The fairly recent rapprochement of these traditions – in their Anglo-American and Franco-German variants – must not cause us to fall prey to retrospective determinism, to settle for a convenient but reductionist view of the Rechtsstaat and the rule of law that glosses over the competing visions of politics from which they sprang.

The Rechtsstaat tradition, not unlike that of the rule of law, has been anything but static. Rather, it has been subject to reinvention from the get-go. In the nineteenth century, as we have seen, procedural conceptions of the Rechtsstaat held sway. In the twentieth century, especially in its latter half, these formal conceptions of the Rechtsstaat gradually gave way, in both theory and practice, to substantive understandings of what it means to govern by way of law. In postwar Germany, this has meant that conceptions of the Rechtsstaat and of the rule of law have, for all intents and purposes, converged, a trend that has continued in the twenty-first century. It is this recent convergence that likely convinced MacCormick to equate the idea of the Rechtsstaat with that of the rule of law. His monochromatic snapshot, however, was just that – a rendering in black and white that concealed the colorful histories of the Rechtsstaat, in Germany and elsewhere.

The global reach of the Rechtsstaat – rarely acknowledged and barely studied – is in need of comparative historical analysis for reasons theoretical and practical. Instead of lumping together the ideas of the Rechtsstaat and the rule of law, legal theorists, intellectual historians, and socio-legal scholars ought to take each idea seriously in its own right – theoretically, empirically, and practically. Studying the world’s Rechtsstaaten – in the plural and the vernacular – would be a welcome and long overdue contribution to the phenomenology of the rule of law.Footnote ¹¹¹ As one scholar not long ago put it, with Russia in mind,

Introduction

This chapter will analyse the discourse in France on the relatively new French expression État de droit.Footnote ¹ After an unsuccessful first rise in its use at the beginning of the twentieth century (1907–1930s), the term has since 1977 progressively informed the language of French constitutional law scholars and even penetrated the language of specialists of other legal disciplines, politicians, journalists, and, to some extent, of ordinary citizens.

1 The International Success Story of a German Term

In French, the term État de droit (generally written with a capital “E”), was originally coined in the second half of the nineteenth century (with the first documented use in 1868) as a direct translation of the German term Rechtsstaat, coined by Placidus in 1798. When capitalized, État means “State” (in German, “Staat”), and “droit” (in German, “Recht”) signifies “law.” In English, the term Rechtsstaat and its various foreign replicas are translated either as “rule of law” (for example, in the EU Treaties), which is quite a broad translation, or, more literally, by “Law State,” “Legal State,” or “Rule of Law State.” I would also propose “Lawful State,” having regard to Locke’s classic expression of “Lawful Government.” It should be noted, however, that some French scholars, such as Maurice Hauriou and Mireille Delmas-Marty, and some international law experts prefer to write État de droit with a small “e,” especially in the context of international law. Thus, they delete any reference to the “State,” a complex term that is central in the classic legal scholarship of continental Europe but ignored in the English tradition. Using the term état with a small “e,” which simply signifies “situation” or “status,” suggests that the expression “état de droit” can be applied to any situation, to States, of course, but also to polities that do not qualify as such (for example, international organizations).

Although centered on France, this chapter has a broader scope: it raises some general questions regarding the globalization or, to put it more cautiously, the internationalization of the German Rechtsstaat discourse. Since the 1990s, that discourse has taken a strong lead – at least in the Western debate – on matters of “nomocracy”, an expression here used as a culturally neutral, generic term. Often, the western debate tends to be reduced to two models: on the one side, the Rechtsstaat intellectual tradition and its current implementation in German positive law and, on the other, the so-called rule of law model, in which, notwithstanding some fundamental differences, especially regarding judicial review of statutes and the very concept of Constitution, the English and US traditions are merged. Other (Western or non-Western) traditions are neglected or marginalized.

The term Rechtsstaat is one of the most successfully exported items of German legal scholarship: since the end of the nineteenth century, it has been adopted in almost all European languages and even outside Europe. It gave birth, for example, to “Stato di diritto” in Italian, “Rättsstat” in Swedish, “Państwo prawne” in Polish, “pravovoe gosudarstvo (правовое государство)” in Russian, “shteti i të drejtës” in Albanian, “hukuk devleti” in Turkish, “Estado de derecho” in Spanish, “dawlet al-qanoun” in Arabic, and “Hôchikokka” or “Hôchikoku” in Japanese. Each discourse was inspired either directly by the German model or by the use of a literal replica by some other system; the use of État de droit in French-speaking African countries, for example, has been strongly influenced by the approach of France and such international organizations as the EU and the World Bank. In some jurisdictions, the impact of this “global” diffusion of German legal terms – another illustrative example is the success of the term “Grundrechte” (fundamental rights), instead of “droits de l’homme” – and German solutions (for example, the institution of the Bundesverfassungsgericht, its case law on human dignity or on “Solange,” the eternity clause of Article 79(3) Grundgesetz, militant democracy)Footnote ² is such that scholars start to, for example, speak about the “Germanization” of constitutional law and of constitutional law scholarship.Footnote ³ Certainly, an increasing number of jurists around the world use the expression Rechtsstaat or, more frequently, its local translation. Their language may be Germanized, but has their mindset as legal practitioner or scientific scholar also been influenced by German ideas?

One would expect so, as words – unless they are synonyms or lies – are not neutral (i.e., not interchangeable): they convey certain specific meanings. Law is expressed by language: to change the former, the easiest and most direct way is to change the latter; one rewrites the text, for example, by inserting the domestic translation of the term Rechtsstaat at the fore-front of the Constitution.Footnote ⁴ By changing the words people use when thinking about, or interpreting, legal texts, one may change their preconceptions thereof and, thus, indirectly, change the law. Yet, however reasonable it might appear, the working hypothesis that equates the Germanization of juridical language with the Germanization of the local legal mentality and/or legal norms is not always valid. This is obvious in the French État de droit discussion initiated by Léon Duguit: While the phrase, as he used it, stemmed from the German word, none of its meaning did. One may wonder whether part of the current international success of the term Rechtsstaat is just a fashion or a new buzzword.

If, however, the Germanization of the terminology amounts to a substantial change inspired by German views – as has happened in France in several cases – why, how, and to what extent did this change take place? Is it possible to induce a change of law – even a paradigmatic one – by simply adding to a given legal system a new, catchy phrase taken from abroad, such as Rechtsstaat? What is the power of this particular term? In France, as in some other countries, scholars, not legislators, were the driving force behind the transplantation of the Rechtsstaat term, which, at least at the beginning, was totally external to positive law, as the term was not part of the latter’s official terminology. What was the function of this scholarly notion? Was it merely descriptive, serving, for scientific investigators, as an external analytical tool in order to screen, identify, and classify the given content of one or all legal systems? Or was it prescriptive, serving politicians, judges, citizens, and scholars in their endeavor to conserve the status quo, to re-read open-textured provisions in light thereof, or to radically re-write the law? Or was it both descriptive and prescriptive?

Through the emblematic, albeit not totally representative, example of France – France stands here for the type of countries with a long-standing, liberal and democratic nomocratic tradition, as opposed to new democracies evolving from a dictatorial past – this chapter provides a first, necessarily incomplete insight into the “shadow side” (i.e., the often-overlooked side that some may even call the “inglorious” side) of the internationalization of the German Rechtsstaat discourse. Yet, this shadow side matters, for various reasons. Although the two “global” models mentioned above largely outshine the French État de droit (specifically, its system of judicial review that lags behind),Footnote ⁵ French public law still serves as a source of inspiration to certain regimes, be they former colonies or not, that are not necessarily looking for the most liberal solution.Footnote ⁶ France has also contributed to the worldwide diffusion of the term Rechtsstaat, by conditioning, since the Conference of La Baule (1990), its support to African countries, inter alia, on their État de droit. Furthermore, speaking of models and their diffusion presupposes an understanding not only of how, but also to what extent the German discourse has been adopted abroad. From this perspective, this chapter analyses both the displacement and resistance (be it micro- or macro-resistance) of the former French nomocracy tradition, a tradition that some English-speaking scholars would call “political constitutionalism” as opposed to “legal constitutionalism.” Indeed, most of the pre-État de droit theories in France conveyed, at least since 1789, a strong distrust of the power and independence of courts; it favored non-judicial (political) organs to be the guardians of the supremacy of the Constitution – an idea that, now, appears rather strange to many people around the world because courts are frequently considered the “natural” bulwark of the law, including the Constitution. The most influential definition of the new État de droit phrase, that is, the concept that emerged in the 1920s and was later unearthed after 1977, established precisely this strong link between the existence of a legal norm and its protection by a court. It paved the way for a radically new vision of the judges’ role in democracy, an issue that was – and still is – particularly sensitive in Montesquieu’s home country. From this historical angle, this chapter also offers a broader picture of the diversity of (Western) understandings of nomocracy.

2 An Analytical Framework

Legal transfers are highly complex phenomena. When applied to such an elusive object as Rechtsstaat and its many meanings, the complexity is even greater.

First, even when freely chosen (as was the case with France’s and with most other countries’ importation of Rechtsstaat), legal transfers are rarely complete. That limitation applies where the object at stake is a small set of technical provisions of some code (i.e., some “rules”) and even more so when the transfer concerns a multifaceted and elusive intellectual construct such as the Rechtsstaat discourse, a “principle” or even “meta and macro-principle” with several series of components and subcomponents. In the transfer, some elements or nuances may be deleted, transformed, or added; its scope (or target) may be reduced, expanded or reconfigured. The translation is creative or partial. It seems highly difficult – Pierre Legrand even considers it impossible – to transplant (or, more precisely, to recreate) the cultural and social background of the transferred object.Footnote ⁷ Thus, how far does the French État de droit discourse, and similar discussions in other countries, diverge from its German origin? As already mentioned, some French scholars chose to change the French version’s spelling (and, thus, its sense/scope), by using a small “e.” However, even when the term was exactly the same (État de droit with a capital E), its content has always been transformed and adapted. The most extreme example is the enucleation process operated by Duguit, the first to use the French phrase État de droit as a notion applicable to French law: he stripped the German term Rechtsstaat of all its German content, keeping just the (attractive) shell. Carré de Malberg and Hauriou imported certain German reasoning along with the term, but, at the same time, gave it a more radical turn.

Secondly, a transfer may consist in an almost immediate break (i.e., the legislature copies some specific foreign rules and ensures their implementation) or be the result of a more-or-less long “infiltration” process. If the object at stake has many facets and is, itself, evolving over time, as is the case with the German discourse surrounding the term Rechtsstaat, a first part of this larger set of ideas may be introduced, at some point, by some German-speaking law professors who diffuse it amongst colleagues and, later, practitioners. Once this first transfer has taken root, the transplantation either stops there (a one-shot Germanization) or acts as a cultural bridge that opens the way for future transfers from Germany. Such latter transfers may be either: (a) sporadic (enrichments and evolutions of the new key term, once transplanted from Germany, are mainly home grown or are influenced by some other foreign system); (b) frequent; or (c) structural (Germanization amounts to an exclusive reorientation of national scholars and practitioners toward German legal thinking). France’s État de droit discourse is currently somewhere between hypotheses (a) and (b), with hypothesis (c) definitely not being applicable.Footnote ⁸

Thirdly, as botanists well know, grafts may be rejected. The success of a transfer, especially one that concerns a change to a fundamental issue (as one would expect to be the case here), depends on various parameters. Roughly, supply and demand must meet. What is offered by the German side, under the heading of Rechtsstaat, and what a certain country is looking for, given its own needs and constraints, must more or less correspond. The Rechtsstaat package must be attractive, not necessarily in se, but for that country’s elite at that particular moment. The probability of a transfer decreases if the country in need of a solution (the potential “importer”) has, in general, an ethnocentric attitude and if the authority of the potential “exporter” is low. After the fall of the Berlin wall, the countries of Central and Eastern Europe were keen to abandon their (communist) tradition and to look towards the West. German Constitutional law was, then, a highly esteemed model of how to overcome a dictatorial experience. In comparison, the conditions for Germanization in France were much more difficult. From 1789 until at least the end of the nineteenth century, France was at the forefront of modern progress in matters of nomocracy; France was proud of its own genius and tradition, and often saw itself not as an importer, but as an exporter, of its law and legal scholarship. When, during the Third Republic (1870–1940), some elements of the various German Rechtsstaat theories found their way into parts of the French constitutional scholarship, the conditions for such a transfer were seemingly the worst possible: at crucial moments during this long infiltration process (in 1870, 1914, and 1939), Germany was France’s military and civilizational arch-enemy. Yet, one aim of the Gallicization of the Rechtsstaat discourse was to subvert a central and long-standing feature of France’s Constitution and legal system.

3 The Gallicization of the Rechtsstaat: Three Historical Stages

Looking at it from a certain historical perspective, the current international success of the Rechtsstaat term is astonishing. In the eighteenth and nineteenth centuries, the driving liberal models in constitutional law were, mainly, England, the United States, and France. What liberal politician, philosopher, or law professor would have been interested in German law or legal scholarship at that time, as both lagged behind the standards set by the others? In 1881, in a famous letter to the Prussian Minister Gustav von Gossler, Bismarck mocked the elusiveness of the “artificial term” (“Kunstausdruck”) Rechtsstaat (not a particularly original criticism); more interestingly, he pointed out that the term had yet to be translated into any foreign language, which was quite true. What, then, made foreign jurists change their attitude? Regarding its reception in France, three crucial periods can be distinguished: the nineteenth century, the early twentieth century (the so-called golden era of classic public law scholarship during the Third Republic), and the period since 1977.

Conclusion

Speaking of Germanization should not, however, mislead: there is no uniformity. Differences between the current French and German situations are numerous. The phrase État de droit is neither embedded in the French constitutional texts nor used in the constitutional case law as a legal norm. The French legal system did not, via the État de droit discourse, abandon its traditional doctrine of monism with regard to international law in favor of the traditional German approach of dualism. It is hardly conceivable that France will ever abandon the particular institutional model of its Conseil d’État, which, in sharp contrast to the German understanding of an administrative court, is both an adviser to the executive and a judicial body whose members have been trained at some grandes écoles rather than at law faculties. With regard to its Conseil constitutionnel, although some of its national, unorthodox peculiarities have already been “normalized” (for example, repealed in the 2008 reform), there are still some unique features. French constitutional scholars and judges have not adopted as the cultural background of their legal reasoning natural law theories that, in contrast, played a crucial role in the establishment and life of the post-World War II German Rechtsstaat. The Conseil constitutionnel in Paris is much less activist than the Bundesverfassungsgericht in Karlsruhe. Even the way their decisions are written and justified remain opposites (for example, extensive vs short, dissenting opinions vs single statement of the majority). Their respective academic debates on constitutional interpretation take quite different lines with regard to both interpretation methods (a rich literature exists in Germany on this issue, while relative silence prevails in France) and its concept (to over-simplify it, Robert Alexy’s natural law infused theory of principles vs Michel Troper’s realist theory of interpretation). Last, but not least, whereas most other Western countries, especially Germany, subject general norms adopted by citizens themselves, via referendum, to judicial constitutional review, France still clings to its stance that ordinary statutes or even constitutional amendments adopted by the “peuple,” based on Article 11 of the French Constitution, are nonjudiciable. According to the seminal 1962 decision of the Conseil constitutionnel, norms approved by electors are the “direct expression of national sovereignty.”Footnote ¹⁶ The État de droit discourse here faces a major cultural obstacle: the tradition, going back to NapoleonFootnote ¹⁷ via de Gaulle, of a “dialogue” between the head of state (who raises a question) and the citizens (who deliver, hopefully, the expected answer), that escapes any judicial review, as the people are, according to de Gaulle, the “Supreme Court.” By virtue of Article 11, and as happened in 1962, the Constitution can be openly violated if a majority of voters agree.

Introduction

To speak of “the rule of law” in many of the Muslim countries of the world at present may seem, not only to Westerners but to many citizens of the Islamic world, at best hypocritical and at worst a cruel joke. How, after all, can one speak of the rule of law when a woman may be killed for a marriage not approved by her father or brother, when a constitution can be changed at the whim of a ruler, or when corruption is so pervasive as to leave much of the citizenry feeling dirtied and disaffected? And yet the rule of law remains more than an ideal, more than a vague concept, and more than a useless analytic concept employed only by academic lawyers. For if we try to understand the rule of law not as a universal concept but for what it means in the context of any particular cultural tradition and its system of law, it may be possible to discern features that are not incompatible with the sense in which this phrase is commonly employed.

Admittedly, “the rule of law” is (to soften a more salacious analogue) a veritable courtesan among concepts: it shamelessly associates with whatever seems to it most profitable and basks in whatever plaudits can cover its more questionable associations. To many it simply lacks any real substance. Justice Rosalie Silberman Abella of the Canadian Supreme Court has said that “Rule of Law is a euphemism no one understands” and one dictionary can only offer the tautology that the rule of law is “a state of order in which events conform to the law.”

The meaning of the phrase has long been contested, as we can see for example in the debate among the contributors to the 1994 volume entitled The Rule of Law.Footnote ¹ Thus, some of the analysts argue that scope for differing points of view (even arising to the level of civil disobedience) is vital to any rule of law, while others suggest that what is required are measures that resolve the contradiction between majority rule and majoritarian dominance. Several others, continuing the debate between H. L. A. Hart and Ronald Dworkin, disagree over whether specific tests or only general principles can determine when and how moral versus legal precepts should govern. Still others ask: Does the rule of law require that rules be the result of rational choice, or does it demand the careful incorporation of (or studied distance from) binding institutions?

Such characterizations of the rule of law in the literature have long been central to Western discussions. Medieval thinkers resorted to law when they began to question unlimited monarchic power, while those of the early modern era (Montesquieu, Locke, and Paine among them) boldly proclaimed that the law is king, rather than the other way around. So, too, the American Founders modified the ancient Greek emphasis on the rule of law as rule by the best of men when they employed the concept of virtue (at least as embodied in those who shared common constraints for being white, male, free, and landowning) as a necessary adjunct to any formal distribution of powers.Footnote ² Definitions have sometimes closed in on certain features. The Oxford English Dictionary, for example, speaks of the rule of law as a governor on individual behavior, all persons being “equally subject to publicly disclosed legal codes and processes.” But the universal attributes noted by philosophers and lexicographers may themselves beggar precision, especially when they are really attached to a specific concept of human nature and public tranquility and when they cannot always be reconciled with the concept of justice that may be found in different cultural traditions.

What is true in Western jurisprudence and philosophy is no less true in the Islamic world. For while one could list any number of works in which religiously inflected ideas of the rule of law have been the source for endless debate among the literati, those debates may, as in the West, have as much to do with power struggles as with philosophical rigour. And yet, as in the history of any religious or political argument, the terms of discourse may have a characteristic quality however much the internal variation and reconfiguration may have been the source of great debate, if not indeed great crimes, among those favoring one view over another. Thus, in turning to the specifics of the idea of the rule of law (or its functional equivalents) in countries where Islam is the predominant religion one must necessarily speak in terms of themes and variations rather than pretend to a singular voice informing every nuance or alternative that may have been put forth over so vast a timeframe and distance as the Muslim world embraces.

Put somewhat differently, can we discern some common denominators in what, for want of a better phrase, may be thought of as the range of precepts that may be covered under the rubric of the rule of law? Indeed, are there indigenous equivalents to this concept in Islam and, if so, what are their constituent features? If, as students of social history and not just the history of the legal scholars, we also look to popular conceptualizations of persons, time and conduct, can we triangulate in on something like a sense of the rule of law that is deeply embedded in Muslim cultures more generally? In doing so, we will want to have recourse initially to the ideas of those Muslim scholars who have addressed the issue, as well as to propositions that appear to inform the daily lives of ordinary believers.

1 Principles of Islamic Law

Looking at some of the key writers who have thought about and debated the place of the law in a society and polity informed by Islamic principles several themes stand out: that no worldly leader may stand above the Sacred Law (shari‘a) yet may be responsible for determining its applicability; that as a matter of cultural common sense one cannot (and for that reason, should not) assume that the law can be applied without recourse to the wisdom and credibility of those who bespeak it; that justice requires assessing the claims made upon power by an individual who is himself taken as a whole social person; that equivalence rather than abstract rights is the measure of fairness; that no entitlement exists when one fails constantly to service one’s claims; and that the law is not a body of positive rules but of situated appraisals of social repercussions applied through procedures that are consistent with what is known about human nature and what holds a society together. While these “cultural postulates” will have to be unpacked in their everyday manifestations we can see how they also suffuse – again, in a theme-and-variation sense – many of the formal commentaries, judgments, and debates that have characterized Islamic jurisprudence over the centuries.Footnote ³

To most Islamic legal thinkers the preservation of a community of believers (umma) free from social chaos (fitna) is a foremost consideration and toward that end the founders of the four main schools of Islamic law were quite prepared to defer to political authority and to rely for substantive guidance on analogies drawn from provisions in the Quran and the accepted collections of the Prophet’s sayings and acts (hadith, sunna). Personal reasoning (ijtihad) – whether of the majority or a particularly well-regarded scholar articulating a minority position – is recognized as a valuable addendum to the Quran and the Traditions of the Prophet by many scholars, provided it sounds in the practices of the people or the public good. Some, like the tenth-century writers al-Farabi and al-Razi, influenced by Greek ideas, rely on the “first chief” to guide the community, the constraints of personal virtue being paramount in avoiding the injustice that follows upon the failure to balance contending interests. Avicenna (Ibn Sina, 980–1037) is only one among many who, in his approach to legal constraints, stresses the importance of reciprocity in actual or partner-like relationships. Other commenters of the same era (including al-Mawardi) pick up on the Prophetic saying that “my community will not agree in error” to emphasize the role of consensus and consultation both as a restraint on leadership and as a form of social bonding. Like many of his predecessors, al-Ghazzali (1058–1111) does not focus on institutional ways to constrain misguided leaders noting, as does Averroes (Ibn Rushd, 1126–1198), that necessity commands obedience either to a ruler or learned man, while the more autocratic Ibn Taymiyya (1263–1328) vests almost unlimited power in a leader if he strives to hold people strictly to the tenets of the faith. Later thinkers, such as Nasir ad-Din Tusi (1201–1274), like their forbearers, resort to the concept of balance as equivalence without specifying precisely how this accounting should proceed other than as an emanation from a just ruler. And while Ibn Khaldun (1332–1406), notwithstanding his role as judge and political adviser, is not usually thought of mainly as a legal philosopher, his approach is consistent with that of many jurisprudential scholars in its emphasis on social solidarity, the need of men to be dominated by superior leaders, and the belief that religious law does not censure the role of the authoritative figure as such, only the evils that a particular tyrant may perpetrate.

It does no violence to the distinctive nature of these and many other Islamic commenters on the role of the law to suggest some common cultural themes that transcend their individual approaches and the times within which they were set. Preeminent among these features is the dependence on the ruler as a person rather than as the depersonalized occupant of an institution. Perhaps the absence of a clear line of succession to the Prophet himself – indeed perhaps owing in part to the murder of several early caliphs and the schism of the community into the Sunni and Shiite branches – reinforced the focus on the personality of the one who has taken hold of a given office. But it would be a mistake to think that this represents either some inherent taste for absolutism, the incompatibility of Islam and the rule of law, or that there was not, in fact, a broad array of limitations placed on the power of the ruling figure. Admittedly, some of the constraints may have been more in the nature of idealized practices than actual behavior. Islam distinguishes between those tasks (like prayer) that each individual must perform for him or herself and those that must be done by someone on behalf of the community of believers as a whole. This has led some Muslims to refuse service, say, as a prayer leader or religious judge (qadi) lest they mislead the community by even inadvertently failing to perform that role properly. Others, like an Egyptian qadi in the ninth century CE, argued that new court officials should be appointed every six months to avoid tempting corruption.Footnote ⁴ Notwithstanding such ideals, the concept of independent judges and scholars, as we shall see, is not without some reality. That many commenters have stressed the ideal qualities that a judge should possess and that institutional constraints should receive less consideration than personal virtues is consistent, therefore, with that cultural ethos that situates the main source of confidence in the pursuit of justly enacted powers in identifiable persons rather than impersonal structures.

Two possibilities, then, exist: that the rule of law depends on virtuous persons applying it, or that the rule of law requires counterbalancing mechanisms that limit the power of those who apply it. While most of the writings of classical Islamic law scholars would, as we have seen, suggest that reliance on the virtuous law-enforcer is by far the dominant orientation, a more accurate picture emerges when both possibilities are considered. For while the religious scholars – whether Sunni or Shiite, Arab or Persian, Asian or Middle Eastern – almost always emphasize the just ruler who is faithful to the letter and spirit of the shari‘a, there have almost always been countervailing forces that need to be considered. Primary among them are the other players in the marketplace, the procedures and presumptions employed by the judiciary, the legal consults (ulama) whose opinions on particular cases may be solicited by contending litigants, and the alternative dispute resolution mechanisms to which disputants may have recourse.

2 The Role of the Marketplace

The Prophet was a merchant, as was his wife. And, as in the marketplace, Islam places great stress on the principles of contractual relationships and reciprocity. Provided that none of the relatively few propositions of a law-like nature contained in the Quran is violated, Allah has designated as one of the rights of mankind (haqq al-insan) the ability to arrange their own agreements. This does not mean that all such relationships will go smoothly; indeed, there is a saying that “God placed contentiousness among men that they may know one another,” and it is in just such dealings that one must attend to the distinctiveness of the other, his cultural ways, and his own network of social attachments. Moreover, while scholars – both Muslim and Western – tend to cite as the sources of Islamic law only the Quran, the Traditions of the Prophet, and the approaches of the four main schools of law, the fact is that custom (‘urf, adat) is the unmarked category and, quite often, the prevailing source of law. In every age and every part of the Muslim world one thus finds some version of the proposition that a contractual stipulation takes precedence even over the shari‘a and that local custom is shari‘a, not something separate from it. Whether it is matrilineal Malays from Sumatra or the Berbers of North Africa who regard their distinctive inheritance practices as Islamic, custom is popularly seen not as something separate from shari‘a law but as an integral aspect of it. As such, custom serves as a check on the strict application of textbook shari‘a and, in many instances, as a factor that an autocratic ruler ignores at his peril.

We tend to think of religion as lodged in the place of worship, the law as housed in the courts, and the seat of philosophy as exclusive to the academy. But not only do ordinary people lead intellectual lives, they live their religion, their law, and their philosophy in the public realm. Thus, to view the marketplace, for example, as solely the realm of the economic is to possess a highly truncated view of how Islamic law and its inbuilt constraints may operate in everyday life. For the market is not only the natural environ of every Muslim from the Prophet on but a domain in which the rule of law is also given expression. Consider just a few practices. Contracts must be expressed in the present tense, not as something that has yet to achieve performance. This means that such an agreement is really the validation of an existing and negotiated arrangement, evidence not only of the terms of a deal but of a relationship – indeed a relationship that has consequences for the networks of indebtedness possessed by others, the totality of which both define and order society. By creating and sustaining, in a highly publicized manner, the connections one has forged with others, a man demonstrates that he is fulfilling his God-given capacity to arrange his ties to others through the employment of his reasoning powers and that he is contributing to keeping the community of believers whole by applying these precepts in his most ordinary of daily activities.

At the same time that one bargains in the marketplace one is also putting certain constraints on the centralization of power. For while it is true that most regimes have controlled the marketplace through inspectors, taxation, and regulatory schemes, it is also true that the application of custom, the arrangement of interpersonal obligations, and the system by which agreements are formed constitute ways in which power is dispersed, the regularization of relationships is given substantive form, and a key aspect of the rule of law – the more-or-less even application of principles both widely recognized and informally sanctioned – is given actual effect.

3 Judges and Jurists

The same may be said of the role of the judiciary. Here, one could speak of the formal elements of power distribution and, perhaps more importantly in the Muslim context, the mechanisms that may not seem to be overtly oriented toward the limitation of power yet have, directly or indirectly, that effect. Traditionally, Muslim judges were appointed by the powers that be. Yet there are numerous reports of local people rejecting someone sent from the capital or simply finding ways of avoiding his disposition of cases. In theory, the ruler’s own decisions were separate from those reached by a qadi, though it would be naïve to claim that the influence of the former on the latter was not, in most instances, profound. Still, litigants sometimes had a choice of venues where they could be heard. Moreover, scholarly opinions (sing. fatwa) were frequently sought and presented to the court. Because a judge’s reputation and personal following were essential to his overall credibility, both his own judgments and his use of the proffered fatwas was at once a hedge on his own decisions and yet another vehicle through which the dispersal of power reinforced local conceptualizations of a rule of law.

Judicial decisions, though usually brief and unpublished, did not really set precedents. Nevertheless, it is not inaccurate to think of Islamic law as a variant on common law systems of law.Footnote ⁵ Here the key ingredients of a common law approach are that facts are adduced from the bottom up by local witnesses and experts and a system of variable categories is developed by reference to a range of specific cases. The result, intentional or not, is to once again distribute power in such a way that it is difficult for any one person or institution permanently to cumulate power to the exclusion of other avenues and challengers to its implementation.

Traditionally, no formal system of appeals existed in Muslim court structures. The purported theory was that no human could decide a matter with absolute certainty, hence an array of approaches by localized qadis, rather than a definitive statement of the law by a high court, was consistent with the belief that if similar processes of attending to cases were applied diverse results were acceptable. Indeed, because many Muslim judges to this day argue that cases are never identical, the proposition that similar cases should be decided similarly is not consistent with their emphasis on the unique relationships and personalities each case involves. From this perspective, a rule of law that treats things as if they were identical would violate common sense and the belief that justice demands a focus on the unique features of each case. If, however, a similar style of considering evidence and a shared sense of the criteria by which the sound judgment of a virtuous judge is applied, then justice – and what Westerners might call the rule of law – will have been honoured.

Islamic law is often regarded as containing a body of positive law and, to the extent that scholars published manuals and treatises in support of particular approaches to particular types of situations, that characterization is not inaccurate. But it is, at best, only part of the story. For the proposition that, as Noel Coulson argued, in Islam the chair (of the scholar) is more important than the bench (of the jurist) can be misleading.Footnote ⁶ Unlike continental systems of law, from which most Western scholars have projected their image of Islamic law, neither codes nor scholarly treatises were the predominant, much less the sole, basis for judgments. As we have seen, custom has always played a key role – particularly since it is regarded as not incompatible with the shari‘a but part of it. Even more important has been the role of legal procedures.

Judicial procedures – including the rules of evidence, legal presumptions, and the role of witnesses and expert testimony – are important for their capacity to resonate with commonsense assumptions within a given culture and because procedural regularities may also reflect the role of the state and the limits of its powers.Footnote ⁷ In Islamic law the emphasis on personalism over institutions comes through quite clearly in the rules of procedure. Thus, tremendous emphasis is placed on witnesses who themselves have been recognized as reliable by virtue of their overall reputation in the community, which itself is a function of how well embedded they are in a set of kinship, local, and negotiated ties to others. Experts are witnesses whose special knowledge – whether of the marketplace, irrigation, medicine, or the likely ways people of different locales arrange their contractual relations – are vital to judicial decision-making. But note, too, that in the emphasis on these personal qualities the state is also being limited by knowledgeable persons. Just as the jury in the Anglo-American world gets the state off the hook for deciding against individuals, so too in most Islamic legal regimes the use of local people bringing information to the court takes some of the responsibility – as well as some of the power – away from the ruler and places it firmly in the hands of others.

Similarly, rules of procedure not only aid in determining what actually happened in a given dispute but reflect views of human nature that are integral to the distribution of powers through law. Thus, for example, if the person to whom certain items are usually attached (for example, the household goods to a wife) is assumed, the law is underscoring: (a) that justice requires an accounting of an individual’s status and a judgment based on seeing persons in their proper category as well as for whatever additional attributes they may have taken on; and (b) that the state may not punish people for what may be in their minds if their actions, visible to all and retrievable by judicial process, do not bear out that interpretation. So, too, if an oath is to be used to settle the facts in a case the person entitled to take that oath first and thus cut off the other’s claim is being allowed to step outside of presumptions the state could have enforced through the law by applying to a power higher than a human official. And when the distribution of oath-taking is based on a cultural assumption of who is most likely to know where the truth actually lies, it is through such views of humankind that individuals are both empowered against an arbitrary state and the values of the collective are reinforced.

4 Justice as Equivalence

That a person’s status and overall set of connections should weigh significantly in most Islamic legal proceedings might seem antithetical to the rule of law as treating all persons equally. But consider this: Is it a violation of equality if women who are deeply committed to Catholicism believe that only men should serve as priests, or that similar views should inform the approaches of Orthodox Jewish women to being called up to the reading of the Torah, or Muslim women to serving as prayer leaders? Or, from their perspective, do these women believe that the religiously informed tasks they perform, whether in the home or through segregated rituals, are of equivalent importance to those undertaken by men? If they do, then what may be at work is a concept of justice not as equality or identical treatment of men and women but that the distinctive nature of each demands that they be treated true to their category and thus equivalently. If rights are the keynote of many Western conceptions of the rule of law, justice (‘adl) is clearly the concept that is central for many Muslims and that concept does not imply absolutely identical treatment of persons in every situation but a clear assessment of the whole person, including his or her distinctive nature. And when equivalence – however assessed – is the focus of judgment, and when that process is pursued according to precepts broadly shared within the culture, it is impossible to characterize the results as failing to abide by some sense of a rule of law even if it is not the one that is put forth in other societies and religions. Culture thus can, alongside formal structures, serve as a check on the power of the state.

5 Informal Arbiters

However centralized power has been in Islamic states – whether in the person of a sultan or a big man who has employed pseudo-democratic means to gain office – not all legal power is at every moment under the ruler’s control. Legal scholars (ulama) may vary in their impact, whether they serve alongside the head of a regime or as consults in individual cases. But they do possess an alternate source of legitimacy which – depending almost entirely (as in all other aspects of these cultures) on their personal forcefulness, their individual capacity to build networks of dependence, and their ability to capture through language the terms by which a matter may be addressed – can at times be interposed against the powers of the central authority. And since their intervention may itself partake of characteristic features for establishing their legitimacy, one can properly speak of their contribution as part of the rule of law.

The ulama are, however, by no means the only players who may generate a dispersal of power regularized by social convention and hence contribute to the rule of law as seen through local eyes. Often, disputants will go to people outside of the formal legal structure to have their differences addressed. The go-between (wasita) is more than an informal arbiter: this individual – whether a kinsman, neighbour, or other respected figure – at once intercedes (even usurps) the power of the state to decide issues but does so in such a way as to reinforce local conventions and customary practices. Moreover, their approach actually resonates with that taken by formal courts in many parts of the Muslim world. For if one asks what the goal is that such forums seek to achieve, the answer is often not that of Western courts – to assess facts and determine rights – but to put the parties into a position where they are most likely to negotiate their own differences. Once again, the ability to use social values – seen as Islamic values – and local people to achieve a degree of peaceful resolution of a dispute is not just a matter of legal pluralism in some abstract sense but of limiting state power and establishing regularity through local personnel and local conceptualizations. That, too, is partaking of a rule of law.

Consider, too, the fact that, contrary to Western stereotypes, if they pursue their family law cases to judicial decision women throughout the Muslim world win all or much of their lawsuits anywhere from 65 to 95 percent of the time.Footnote ⁸ The reasons appear to include that the cases they pursue tend to be clearly favorable to them, that Islamic law has long favored the poor, that the rules of evidence do not uniformly disadvantage women, and that pressures are often brought to bear on men to settle their wives’ lawsuits. Once again, legal presumptions and the role of court experts do not simply work against the interests of women. And the image of women as reluctant to argue their own interests is seriously problematized by viewing such documentaries as Ziba Mir Hossein’s Divorce Iranian Style or a film that follows a judge in Niger entitled Justice at Agadez.

Westerners, too, have often characterized Islamic legal decision-making as largely dependent on the unbounded discretion of the qadi. Max Weber, who spoke of Kadijustiz in these terms, is often cited here even though Weber was careful to state that his was an ideal type construct and that he knew actual Islamic legal adjudication was not simply arbitrary. In fact, careful studies of such discretion suggest that while judgment is indeed connected with the range of inquiry to which any judge may subject litigants, there are clear precepts and limits to which judges commonly adhere. Foremost, as we have suggested, are the procedural rules for adducing and weighing evidence, the presumptions that allot burdens of proof, and the preferred aim of creating some sort of workable continuity to an existing relationship. Though less apparent, perhaps, than a formal structure of divided powers, these features are crucial to the local variant of an Islamic rule of law.

6 Corruption

It would, however, be naïve to ignore the threat of corruption in any legal system. Assessing its role in Muslim adjudication is difficult to quantify and still more difficult to separate from other aspects of the political and social forces in each country involved. What we do know with reasonable certainty is that the separation of the judiciary from governmental influence (if not direction) is far from perfect.

Examples abound. Thus, in June of 2015, President Abdel Fattah el-Sisi publicly browbeat the Egyptian judges who he said were failing to move against the Muslim Brothers he accused of assassinating a public prosecutor. In one particularly intriguing case a court in the state of Texas was called upon to decide a claim by an American oil company arguing that a decision reached against them in a Moroccan court was improperly influenced by the palace and should therefore not be enforced by the American court.Footnote ⁹ At the trial level the court did indeed find that there was such influence and that the Moroccan judiciary was insufficiently independent for its rulings to be given effect. However, the court of appeals found to the contrary and ruled in favor of granting comity to the foreign judgment, thus creating an interesting question as to what kind of influence goes beyond the bounds of a rule of law.

7 Constitutions and Human Rights Conventions

At various times many Muslim countries have addressed the balance of powers and the rule of law through the adoption of national constitutions and codes, many of which followed European models. What gets incorporated in any nation’s foundational charter or codified laws, of course, reflects both the circumstances that apply at the time of their adoption and the broader concept of power that they embrace. In India, the British effectively created a body of substantive Islamic law that had not previously existed, while the French in North Africa redacted case law and treated it like a code. Following independence many of these codes persisted, especially in criminal and commercial law, sometimes alongside modified codes of personal status that ranged from those remaining very close to traditional Islamic law in the countries of the Arabian Peninsula to the highly Westernized laws of Tunisia. Certainly, revisions in some codes do seek to equalize the status of men and women. Notwithstanding massive protest marches in 2000 for and against its adoption, the Moroccan Code of Personal Status (Moudawwana) now provides that marriage is ‘under the direction of both spouses,’ that both parties can seek a divorce on equal grounds, that a woman does not lose child custody upon remarriage, and that a woman does not require the permission of a marital guardian to wed.

Most Muslim countries have not only centralized their law codes but the organization of their judiciary as well. Where once any respected scholar might be able to certify another as sufficiently learned that he might apply the shari‘a, now government-controlled educational programs predominate; where once a qadi might be somewhat independent of the ruler, now the Ministry of Justice assigns posts and controls advancement, thus potentially jeopardizing judicial independence. However, on occasion judges have protested against governmental interference, and lawyers in Egypt, Tunisia, and Morocco have taken to the streets to make their views known. At best, lawyers and judges wish to be able to practise their professions independently; at worst, they are badgered or threatened into following direction from above.

More recently, international human rights conventions pose the question whether the standards of Western nations can be said to command worldwide adherence or whether these resolutions run counter to Islamic law. When, for example, the United Nations Universal Declaration of Human Rights was offered for adoption, Saudi Arabia refrained from acceptance – but then even the American Anthropological Association opposed it as an imposition of Western values. Bilateral treaties on the laws governing migrants from Muslim countries to Europe serve to regularize the status of those who live and work outside of their home countries. And although religious law courts have remained a voluntary option for religious adherents in a number of instances in North America and Europe, the aftereffects of the Salman Rushdie affair, 9/11, and various terrorist attacks have led to a backlash against Islamic law in the West. Thus, the Archbishop of Canterbury was roundly criticized for suggesting that some personal status matters might best be handled by Muslims in their own religious law courts, while various jurisdictions in the United States and Canada attempted to pass laws forbidding the application of shari‘a within their territories. The result is, to some degree, to deprive religious Muslims of the rule of law they understand and to replace it with one whose substance and methods may run counter to their perceived sense of order and justice.

Conclusion

Ultimately, we are confronted with a series of concepts about how and in what manner one can speak of a rule of law when cultures and religions vary quite widely. Where many Muslims may see the identical treatment of persons as a failure to recognize legitimate differences or place their confidence in those persons whose relationships they believe serve as a more credible basis for constraint than impersonal institutions, Westerners may see systems that violate their idea of the rule of law as one that should be blind to just such features. At one level there is great overlap between Muslim and many non-Muslim visions of the rule of law – that fairness demands attending to all the facts, that no one individual should have unchallenged and unlimited power over another, that truth does not lie within the ambit of the powerful but with sources that transcend any one momentary possessor of control – while at the same time they exhibit quite different approaches to the distribution of power and the criteria by which authority should be acknowledged. One need not, therefore, be an unrepentant relativist or a claimant of universal values to nevertheless respect the organizing principles by which others place limits on power and treat one another with that degree of consideration to which they would expect any valid system of law to treat them as well.

Introduction

As composite polities, empires were plural legal orders. Conquest, settlement, and rule depended on elaborate arrangements to manage the relation of imperial law to local or indigenous law. Calls for impartial justice in empires emerged in the context of intricate legal conflicts over order and rights, with varied institutional trajectories as the result. The rule of law in empires must be approached as part of the history of legal politics in fluid, fragmented systems of law.

Jurisdictional complexity structured a good deal of imperial legal politics. Empires regularly adjusted structures of legal pluralism, intervening to tidy jurisdictional orders and to assert authority over new subjects and territories. Many reforms to imperial law were advanced in the name of containing petty despotism or protecting subjects, while others aimed at making court systems and legal procedures work more efficiently to enhance imperial power and wealth. The counterpart to this ordering impulse of empires was strategic maneuvering by subordinate groups to mobilize jurisdictional conflicts for their own benefit, often at the expense of other groups. Conquered populations adjusted quickly and used colonizers’ courts to defend their own property interests and access to resources. Strategies of legal engagement ranged from litigation to outright challenges to the legitimacy of imperial courts to violent rebellion.

Efforts to propel legal change from above and below activated discourses about arbitrary justice. It was common for sovereigns to exercise legal authority in ritualized ways, purposely highlighting their vast discretionary judicial power, for example by ordering executions, dispensing mercy, and receiving subjects’ petitions. Yet, even for empires with ideologies of world power in which all aliens represented potential imperial subjects, the very legitimacy of imperial rule still depended on demonstrations of impartial justice.Footnote ¹ Inferior authorities were even more exposed to complaints of arbitrary justice. Cries of petty despotism flowed like an electric currents through empires, converting colonial scandals into highly charged moments of imperial reordering.

Such histories unsettle narratives of the rise of the rule of law as a universal historical tendency. Imperial legal orders exhibited some shared patterns of change and adopted some similar institutional designs, but they also encompassed an enormous variety of doctrines, discourses, and administrative structures. Borderland legal conflicts, intra-imperial jurisdictional struggles, fluid constitutional debates, and judicial and extrajudicial violence – such processes engendered deep imperial anxieties about arbitrary justice without producing a singular solution. Moves to promote consistency in the administration of law in empires upheld variegated rights regimes as a quality of imperial rule.Footnote ² And as some participants in legal conflicts invoked fairness and called for due process and equal access to justice, institutional change in empires often worked to facilitate instability, spark violence, and create new sources of injustice.

Still, this is not just a history of endless complexity. In the long nineteenth century and beyond, processes of imperial legal ordering brought a handful of shared problems into full view, including struggles to define the legal relationship between imperial centers and old or new peripheries. At a minimum, imperial legal orders had to fix limits on power held by local legal authorities and clarify their standing in the imperial bureaucracy. Ongoing legal disputes, meanwhile, forced imperial governments to address and adjust the status and rights of various types of subjects, a process that led them to reference legal projects in other empires, including constitutional movements and authoritarian gambits. For many legal actors in empires, structures of legal pluralism offered opportunities for strategic maneuvering while presenting limited alternatives. Over time, legal politics gradually composed a widely recurring framework for law in empires that preserved legal diversity while affirming and expanding imperial authority.

In this chapter, we explore this complex history of the rule of law in empires. We trace some of the myriad ways in which jurisdictional complexity in empires resembled, but should not be mistaken for, the rule of law. We show that attempts to tidy colonial legal orders and to limit the scope of subordinate jurisdictions often utilized the language of fairness while working to enhance judicial power at the center and encompassing extrajudicial violence. Likewise, we suggest that appeals by colonial subjects and interlocutors for equal justice often had unintended consequences. We first examine legal politics across early modern European empires before turning to the example of the nineteenth-century British Empire’s project of reordering its world through law. The rule of law in empires, we show, composed one element of a broader process of legal politics and institutional change.

1 Legal Pluralism in Empires

Empires throughout the early modern world contained legal orders comprised of multiple jurisdictions. Religious authorities, heads of households and estates, leaders of merchant communities, and many others held different measures of legal authority. The boundaries of jurisdictions could be legally defined by membership in religious or political communities, by the regulation of types of activities or disputes, or by a combination. Rulers held legal authority in tension with a multiplicity of other authorities, and empires were unevenly strident and successful in claiming hegemony over highly fragmented legal orders.Footnote ³

The acquisition of new territories often exacerbated jurisdictional tensions. Leaders of military and reconnaissance expeditions received authority to adjudicate and punish their immediate followers and to preside as judges over fledgling settlements, but their vague and often formulaic instructions left them to innovate and to adopt legal measures that imperial sponsors later opposed. Empires could not hold sway over distant and diverse populations without delegating legal authority to their own agents and to locals, who in turn sought to expand their own prerogatives. Indigenous elites often preserved considerable authority over their own communities even while following directives to refer certain sorts of disputes to imperial officials. It was commonplace for imperial agents and settlers to assert legal power in an ad hoc fashion, in the hope that their authority would be recognized later by metropolitan governments.Footnote ⁴

In these fluid and layered legal orders, pressures to clarify jurisdictional boundaries arose at multiple levels. From the top, imperial officials sought to expand their jurisdictions: for example, in the Spanish Empire royal officials regarded New World colonization as an opportunity to shrink the jurisdiction of the Church and the importance of canon law, in part by assuming authority to appoint Church officials in the New World. From the bottom, vulnerable subjects maneuvered legally with considerable sophistication: for example, Indians in New Spain flooded Spanish courts with petitions and litigation in the first generation after the conquest, and Indians in the eighteenth-century Andes appealed to the distant audiencia, or royal court, to contest their treatment by local elites. By appealing for justice to a distant crown, these communities effectively called for greater sovereign control over subordinate legal orders in order to enhance their own protection. From the middle, imperial agents propped up their own legal authority against local institutions and rival imperial agents: in the British Empire, for example, nineteenth-century conflicts between royal governors and judges generated a wave of scandals that titivated London politicians and altered imperial policy.Footnote ⁵

Participants in such conflicts engaged a variety of familiar strategies. Some used “forum shopping” to try to place disputes before the most sympathetic court. Others tried “forum hopping” by bringing the same case in sequence to multiple forums – in adjacent colonial jurisdictions, in multiple jurisdictions in imperial centers, or across imperial borders. In criminal cases, too, jurisdiction was anything but clear cut. In borderlands where settlers and indigenous people competed for resources, efforts to try perpetrators of frontier violence produced disputes about the nature and boundaries of indigenous political communities and settler sovereignty.Footnote ⁶ Many of these contests rested on allegations of despotism, abuse of office and unfairness.

Jurisdictional jockeying reminds us that justice was a relative affair. By delivering transparent justice for some, colonial legal institutions could do great harm to others. Colonial settlers squatting on crown land lobbied for laws to confirm shaky tenure, at the expense of indigenous people.Footnote ⁷ Land Commissions in the Pacific carefully defined indigenous tenures in ways that made indigenous land available for mass settler purchase.Footnote ⁸ In some cases, shifting inter-imperial relations changed the political valence of legal conflicts. For example, empires encouraged privateering by creating networks of prize courts, then in peacetime turned to the same courts to punish piracy as a threat to imperial commerce. Elsewhere, the perceived disorderliness of various subjects operated as a trigger for legal change. In India, for example, British East India officials responded to an increase in rural banditry by criminalizing entire ethnic groups, and they empowered magistrates to punish unruly British sojourners and settlers.Footnote ⁹

Efforts to use law to protect and define property exemplify empires’ neat but jarring place in the history of the rule of law. The desire for judgments to be reliably enforced sometimes created odd bedfellows, as it did in the Ottoman Empire when Jews shifted disputes about property from religious to secular courts, helping to make the imperial government responsible for the regulation of property across the empire and diminishing the role of Jewish courts.Footnote ¹⁰ Jurisdictional disputes had the capacity to alter even the deep structures and foundations of imperial law, for example, by transforming the initially very modest jurisdictional aspirations of trading factories into expansive claims for jurisdiction over unbounded territories that included many foreigners. The results were not necessarily permanent changes, or even stable policies. In Lagos, for example, British colonial officials introduced policies to formalize an existing market in land, then reversed some of those policies in order to shore up the power of hinterland elites who might serve as imperial agents.Footnote ¹¹

We should not consider that jurisdictional tensions between imperial powers and indigenous polities were quickly resolved. Recent studies point to the endurance of indigenous legal autonomy; in North and South America, for example, indigenous enclaves persisted as quasi-autonomous legal communities within nation states.Footnote ¹² In India, even at the height of British power, empire coexisted with hundreds of princely states where the British held influence without asserting jurisdiction over most criminal and many civil cases.Footnote ¹³ Such arrangements were sometimes the direct result of empires’ attempts to limit metropolitan responsibility for administering justice on chaotic peripheries. In some places, too, creating or preserving the jurisdictional autonomy of indigenous groups worked to prepare the way for the gradual erosion of their power. In the French Empire, for example, the deterioration of legal control by religious and ethnic communities took many forms; it occurred in New France when colonial elites found ways to chip away at property rights attached to indigenous enclaves, and it happened later when French “modernization” of the Moroccan legal system left Jews with fewer, less desirable jurisdictional options.Footnote ¹⁴

Another cluster of legal problems arose from the delegation of legislative authority to colonies. A first problem arose from the open-ended relation of metropolitan to colonial law. Typically, the legal administration of empire fell to bureaucracies that were not empowered to sort out vexing questions such as whether legislation enacted in the metropole applied throughout the empire, whether legislative bodies in the colonies had the power to diverge from metropolitan law, or whether colonial courts were obliged to follow metropolitan procedures and standards. Even procedures for appeal were often unclear or threaded only small numbers of cases through tight judicial pathways.Footnote ¹⁵ Blackstone’s schematic stipulations about how metropolitan law differed in its application to conquered and settled colonies sounded simple, but it did not clear up ambiguities about which English laws applied in the colonies.Footnote ¹⁶ As we shall see below, a vague principle that colonies should make no law repugnant to the laws of England left a great deal of scope for interpretation and ample room to deviate from English law between the seventeenth and twentieth centuries. In many places, legal procedures transposed from metropolitan centers took on different significance in colonies. The category of legal non-personhood emerged in ancien régime France and then proved useful in the penal colony of French Guiana, where the category hardened into a status of perpetual punishment and legal limbo.Footnote ¹⁷

If colonies were sometimes defined as legally exceptional or anomalous, they were also at times subject to systemic, if unsystematic, pan-imperial efforts to impose consistency. The Atlantic revolutions of the late eighteenth century corresponded to a wave of legal reform measures in European overseas empires, from attempts to ameliorate (rather than immediately replace) the Code Noir in revolutionary Haiti to the effort to reconcile monarchism and liberalism in constitutional form for the Spanish Empire in the Cádiz Constitution.Footnote ¹⁸ Reflecting its ascendance as a global military power, its territorial gains, and its growing commercial influence, the British Empire undertook a truly global project of imperial legal reform in the early nineteenth century that epitomizes these processes. It did so at the very moment when legal politics in England were giving rise to the rule of law as a principle of metropolitan governance. Although some London officials were vocal in advocating the creation of a coherent framework for imperial law, Britain’s imperial reform project in fact proceeded mainly from scattered crises of order that began in the colonies. Mid-level officials, in particular, called for strengthening governors’ legal authority and shrinking the jurisdictional powers of local elites, whether indigenous lords or colonial slave holders.Footnote ¹⁹

The resulting global constitutional ordering projects had two characteristics that make them worthy of special attention as we ponder the relation of imperial law to the rule of law. First, even when conditions across empires had the effect of strengthening imperial authority and placing subordinate jurisdictions formally under the imperial government’s purview, executive legal authority was always exercised through a layered bureaucracy that could further, thwart or complicate efforts to bring empires to order. Secondly, precisely because empires were composite polities long engaged in articulating multiple jurisdictions and authorities, imperial law reform provoked and responded to intense debates over the dangers of arbitrary justice and the proper way to contain it through institutional reform.

2 “Rule of Law” in the Nineteenth-Century British Empire

The phrase “the rule of law” was not often spoken in the early nineteenth-century British Empire. But its emergence as a catchphrase later in the century is bound up with British imperial and colonial efforts to order legal administration on the fringes of empire from 1800 to 1840. Indeed, reforms to law in the British Empire in this period defined imperial power in relation to self-legitimating appeals to due process, the repugnancy of colonial legislation, the competence of colonial judges, and the despotism of foreign legal systems. Reordering law in the empire served to increase central control over colonial subjects of all sorts, usually in ways that drew subtle (and not so subtle) lines between metropolitan and colonial subjecthood. Claims of despotism justified imperial aggression and demands for extraterritorial jurisdiction. At the same time, orderly and nested colonial legal forums created deeply uneven meeting points where some, but not all, colonized subjects could craft claims in appropriately deferential forms. It is not surprising that in the aftermath of the American Revolution the increase of crown prerogative or parliamentary power was often sought by disaffected people, including many new British subjects, on colonial peripheries.Footnote ²⁰

Many modalities for ordering British colonial law in the nineteenth century were not new. The doctrine of repugnancy, for example, had long been the bedrock of imperial rule.Footnote ²¹ Self-governing peripheries could legislate as they chose so long as their laws did not contravene fundamental (and applicable) English law.Footnote ²² The use of repugnancy to bring empire to order waxed and waned – indeed, in Jamaica the supervision of legislation lessened over time.Footnote ²³ However, from the 1820s the Colonial Office wielded repugnancy in new ways, to force old, self-governing colonies to ameliorate harsh slave laws and, after 1833, to control the misuse of vagrancy laws invoked against former slaves. Repugnancy was also the only real form of imperial control over settler colonies after 1840 when the empire capitulated to demands for local, elected legislatures in Canada, Australia and the Cape.Footnote ²⁴ This was a flawed governance strategy. Some colonies responded, cannily, by passing obnoxious laws of very short duration that expired before they could be disallowed.Footnote ²⁵

Many other strategies appear less coercive but were not so. From its earliest days, imperial officials repackaged familiar jurisdictional gambits to extend their control. In India, European notions of some jurisdictional autonomy for religious communities informed the strategy of crafting a plural legal order after 1765, when the East India Company assumed the diwani (rights to collect revenue delegated by the Mughal Empire) over Bengal, Bihar and Orissa. In this plan, Company agents would fall under British jurisdiction, and Hindu and Muslim subjects would be ruled under their own law, a seemingly simple scheme that gave rise to innumerable complexities and led the British to privilege written sources for Hindu law over custom in ways that were deeply distorting.Footnote ²⁶ Elsewhere, colonial officials plucked from canon law the idea of a special obligation to protect the weak – a principle used to justify potentially controversial efforts to claim control over various peoples and territories. The most obvious example is the Crown’s assertion that the need to protect North American Indians as subjects and/or allies justified its restriction of English settlement in Indian country in the Proclamation of 1763.Footnote ²⁷ “Protection talk” amplified calls for incorporative strategies in early nineteenth-century imperial law reform. In 1815, it was used with only a modicum of embarrassment to justify the conquest of the Kingdom of Kandy, an independent kingdom in the center of the new crown colony of Ceylon. Governor Robert Brownrigg not only alleged that the King of Kandy had harassed Ceylonese traders formally classed as British subjects but also asserted that Kandyan subjects needed British protection from the unjust tyranny of their king. Deploying similar language, Britain used its formal role under treaty as ‘protecting sovereign’ of the Ionian Islands to justify constitutional meddling within the islands and to assert its right to define unilaterally who counted as British subjects and when they deserved protection.Footnote ²⁸

One of the most important ways in which law-talk about protecting subjects projected imperial power was through the negotiation of extraterritorial courts in foreign jurisdictions. Such arrangements were not initially founded in imperial power. Along with other foreign agents, English ambassadors had long exercised consular jurisdiction in the Ottoman Empire under agreements that, in Ottoman eyes, reflected the power of the Porte to grant legal privileges. Such mechanisms of law were much less benign by the nineteenth century.Footnote ²⁹ When Chinese imperial commissioner Lin Zexu confined British traders in their Canton factories in 1839 and demanded that the British hand over 20,000 chests of opium, Britain declared war on the grounds that Chinese legal disorder threatened “British life, liberty, and property … against the dignity of the British Crown.”Footnote ³⁰ In the aftermath, with other European powers, Britain wrested territorial jurisdiction in a string of trading cities in China where their merchants could not only trade freely but could do so under the criminal and civil jurisdiction of British judges exercising their own law. While these jurisdictions were not as foreign to Chinese imperial law as many thought, and while they provided a truncated and biased forum shopping opportunity for some Chinese litigants, the courts worked chiefly to give unfair advantage to European and Japanese traders by the end of the century – all in the name of defending foreign subjects in China against despotic Chinese law.Footnote ³¹ It is no surprise, then, that rule of law discourse took the world by storm at the very moment when European jurists surveyed the world’s laws and found all but their own wanting. The rule of law and high imperialism were mutually constitutive.Footnote ³²

Foreign despots were not the only threat to legal order. Perhaps the most important historical trend in emerging ideas about the rule of law in empires was the dramatic increase in crown efforts to order legal regimes within British colonies after the American Revolution.Footnote ³³ Some spectacular (and winning) instances of such interventions include the trials of Lt Governor Joseph Wall of Gorée and Governor Thomas Picton of Trinidad for extrajudicial violence and/or illegal torture at the turn of the nineteenth century. Lieutenant Governor Joseph Wall was tried and eventually executed for killing a soldier without trial in Gorée in 1782.Footnote ³⁴ Governor Thomas Picton escaped censure by the Privy Council for ordering the extrajudicial killing of twenty-nine British subjects during his short stay in Trinidad from 1797 to 1803, but he was convicted at King’s Bench for torturing a free black girl suspected of theft in 1806.Footnote ³⁵ The Crown tried to show, in cases like these, that even its most senior colonial officials were not above the law.

The most sweeping demonstration of the entwining of moves to strengthen imperial power with calls to impose transparent laws and due process in the colonies was the British Empire’s dispatch of commissions of legal inquiry to remake the imperial constitution between 1819 and 1838. Commissions aimed at reforming all aspects of British governance in the early nineteenth century. Inside the United Kingdom, royal commissions were a well-worn instrument of investigation that for centuries had touched on virtually all aspects of social and political life.Footnote ³⁶ Even so, the two dozen or so reports penned about the colonies in the early nineteenth century stand out for their breadth and ambition. Instructions to commissioners charged them with amassing information about every aspect of the structure and function of colonial legal regimes and, in the process, incorporating new and old colonial legal systems “everywhere, all at once” into a comprehensive imperial constitution.Footnote ³⁷

If the project sounds dreary and obvious, that is because we recognize its forms, reading backwards through the rule of law. The commissions carried (mostly) London-appointed lawyers to investigate and diagnose the system of legal administration from the Caribbean to Malta. Britain had acquired new colonies in its long war against Napoleon, and these were governed under an array of foreign laws, overlaid with make-shift and often autocratic infrastructures of government. The commissions were tasked with bringing these seemingly exotic colonies within the constitutional fold, but their interest also extended much further. The imperial government (and sometimes the commissioners themselves) seized the moment to take a look at older, self-governing slave colonies of the Caribbean. A wave of scandals and legal panics originating in these colonies had made them emblematic of the corruption of law across the empire and had generated calls for the imperial power to ‘police’ colonial governments and protect vulnerable subjects from the meddling of self-interested colonial elites.Footnote ³⁸

Everywhere they went, commissions were inundated with unsolicited evidence, much of which advocated greater intervention in colonial law and courts. In new colonies, commissioners called for the maintenance of foreign civil law administered by centrally appointed judges and governors in council.Footnote ³⁹ In colonies where English law prevailed, officials demanded its increased supervision, publication, and modernization, all under the much more watchful eye of the center. This effort to bind a plural global empire was neither simply autocratic nor decidedly liberal. The project to fit foreign legal regimes into the poorly articulated “fundamental principles” of British imperial constitutional law genuinely attempted to make colonial legal systems and legal processes less despotic and more fair.Footnote ⁴⁰ Yet, at the same time, commissions operated knowingly to diminish the rights and responsibilities of colonial subjects. They showed in the process how legal reform and due process fit neatly into the project of crafting an autocratic empire for the times.

The British Empire’s “rage for order” shows the imperial alchemy of juxtaposing due process and arbitrary justice. The doctrine of repugnancy suggested that nested colonial law was a premise of empire long before the British center set about creating the necessary bureaucracies to supervise its empire effectively.Footnote ⁴¹ In the nineteenth century, the discourse of imperial order was broader, and it was wielded parsimoniously but effectively to attack the jurisdictional privileges of local elites, especially the private jurisdiction of slave owners. At other times, allegations of arbitrary justice supported the annexation of new territories and the expansion of extraterritorial jurisdictions from the Mediterranean to China. The binary of due process and arbitrary justice created enormous buy-in: colonists everywhere called for increased central power to control the despotism of middling officials or foreign powers. In the process many collaborated in a marked shift towards autocratic colonial governance managed through “the rule of law.”

This multisided support for reform efforts did not construct a liberal empire. As many British subjects in India already knew by 1800 and many others would discover before decolonization in the 1950s, transparent and orderly legal structures did not deliver equal justice for all. They preserved variegated rights regimes. They also set the foundations for episodes of martial law – effusions of state-sponsored violence that exposed the differentiated legal treatment of various parts of the empire and different kinds (and races) of subjects.Footnote ⁴² Legal reforms were as much about neo-authoritarianism as they were foundational to global liberalism. In the context of the British Empire they provided cover for vast economic dislocation, rising racial discrimination, and real violence.Footnote ⁴³

Conclusion

Both internal imperial reform and projections of imperial power as bearers of procedural consistency and fairness formed the backdrop to the heady rhetoric and deep chauvinism of Western legal universalism in the late nineteenth century. By the 1880s, international lawyers saw only legal chaos and backwardness in places not controlled by Europe. As European states gobbled up African states and Pacific Islands, often in blatant projects of national aggrandizement, in meeting after meeting they promised to bring legal order – and with it the prospect of inclusion into supposedly universal legal norms and practices – to the ends of the earth.

Imperial historians have for a long time argued against the older narrative of smooth and ubiquitous transitions from empires to nation-states in world history. Empires persisted as powerful forms of political organization, and the category remains meaningful in understanding “national” strategies of global expansion and integration.Footnote ⁴⁴ Histories of legal change in empires add to this reframing of world history by highlighting variations in the evolution of empires. Efforts to reconcile ambitions of imperial ordering with political, ethnic, legal, and racial diversity produced different patterns of institutional change and left many legal puzzles unsolved. Debates about British imperial federation and conflicts over citizenship in the French empire overlapped and shared some characteristics, but we cannot collapse them into a single narrative of an imperial rule of law.Footnote ⁴⁵

Does this diversity mean that the idea of the rule of law is not useful in analyzing imperial history? We have tried to show here that the rule of law framework is relevant, but in limited ways. First, elements of a discourse of the rule of law were associated with ongoing attempts to contain arbitrary justice – through imperial legal reform, jurisdictional gambits, projections of and appeals to “protective” imperial power, and an array of other legal strategies deployed by imperial centers and their peripheral interlocutors. Such attempts were often flawed and even more often had unintended consequences, but it would be wrong to view them as either based on misunderstandings or merely as epiphenomena of a deeper structural logic of change. In this sense, imperial legal histories align with E. P. Thompson’s view that a modicum of justice acted as a powerful incentive for individuals and groups to participate in legal politics and, in the process, to seek to influence imperial legal reordering.Footnote ⁴⁶

Secondly, broad patterns of change in empires included shifts in the nature of claims about the systemic qualities of law and the hegemony of the state with regard to subpolities and subordinate jurisdictions. This not the same as showing that an imperial rule of law took root. The shifts we are describing emerged from jurisdictional politics and often amplified imperial legal anomalies. Still, we cannot overlook the trend toward more explicit and more expansive claims that the legal order itself represented a medium of governance and that imperial power involved special responsibilities for systemic ordering. These claims had real and often painful consequences.Footnote ⁴⁷

Viewed through these processes of conflict and projects of global ordering, the rule of law in empires emerges as a figure in the shadow of other and institutional change. Yet, its shadowy form was not without influence, as participants in legal conflicts and reforms could point to the virtues of legal order with powerful effect, and feel the brunt or benefit of it in the course of ongoing struggles for justice. Even when they referenced the rule of law indirectly under the more explicit banners of combating arbitrary justice and resolving constitutional crises at a distance, imperial rulers and subjects represented empires as systems of law that facilitated, contained, and defined the exercise of power.