Legal development: getting from here to there How do societies make the shift from repressive law to autonomous law? Why should we care? Helps us understand the past Helps us predict the future Why aren t we better at predicting the course of legal development? >90% 75-90% >50% >25% 10-25% <10% >90% 75-90% >50% >25% 10-25% <10% 1
Max Weber (1864 1920) Legal education but never practiced law Political sociologist Concerned with how societies develop Focus on Western Europe Emphasis on nature of power & authority Douglass North Economic historian Nobel Prize winner Concerned with how capitalism evolved in Western Europe Max Weber (1864 1920) Legal education but never practiced law Political sociologist Concerned with how societies develop Focus on Western Europe Emphasis on nature of power & authority 2
Weber saw specific role for law in market democracies Aspire to formal rationality Formal rationality shares many qualities of the rule of law, such as universalistic rules that bind everyone equally Basic thesis: as formal rationalityi increases, people grown more willing to rely on law Weber s argument: High level of societal & political fragmentation No single person or institution capable of imposing his/its will on society Result is competition among individuals and/or groups for power Initial outcome is chaos Gives rise to demand for predictable rules & procedures Law may emerge as compromise solution no one entirely pleased or displeased Bureaucracy Move away from spoils system to professional staff with vested rights to their jobs (civil service) Note overlap between ideas of bureaucracy & formal rationality Belief in natural law (inalienable rights) Introduces principle that law can be set of relatively stable rules discerned through abstract reasoning rather than through the will (or whim) of a king 3
Separation of powers Clear understanding of who does what with minimal overlap or blurring of functions Ideal version (per Weber) Legislatures enact laws; Courts interpret these laws; and Civil service (executive) administers laws Two themes underlying Weber s theory: 1. Increase the level of predictability Enhance ability of citizens to rely on law Accomplished through creation of standards that are universal & understandable 2. Source of change is combination of top-down and bottom-up Bottom-up demand for law in place of societal chaos Top-down supply of law serves as second-best solution Douglass North Economic historian Nobel Prize winner Concerned with how capitalism evolved in Western Europe Emphasizes different factors re legal dev Sees desire for efficiency and the maximization of self-interest as the driving force behind legal development 4
North s argument: Links legal development to evolution in how merchants trade with one another Initially merchants limited themselves to trading with those personally known to them Fear of ostracism motivates compliance Little need for formal rules or courts Life becomes more complicated as trade expands beyond family & friends Need some method of enforcing deals with strangers Law has the potential to serve as a common language among merchants Law can set minimal standards Law can provide a safety net a set of default rules that need not be specifically negotiated for each transaction Initially contracts are enforced through private institutions created by merchants over time these tribunals evolve into state-sponsored courts Commonalities between Weber & North Both point to rise of private property as spur to legal development Share interest in why some societies embrace law & others get stuck Weber: emphasis on political factors North: emphasis on economic factors Both focus primarily on internally generated changes to legal systems Both use Medieval Europe as a frame of reference 5
Law & development in practice: Central Asia in the 1920s: What were the goals of the Soviet regime? What sort of transition were they trying to achieve? Why did they believe a change in the role of law might be useful to them? Why did the regime target women? How should we characterize Central Asian society before the reforms? How does society change (if at all) as a result of the reforms? More contemporary examples of law & development in practice Japan post-wwii (US occupation): Transplant model German codes + US-style constitution 1960 s aftermath of colonialism: (Latin America, Africa & East Asia) More transplants of codes + educational reforms Spear-headed by US government & foundations Foreign lawyers & officials sent to US for training Success? Short-term at best Former Soviet Union (FSU) in the 1990s: Political differentiation Communist Party can no longer dictate policy Multiplicity of voices (cacophony?) Disavowal of state planning embrace of market Firms able to pick trading partners Introduction of profit motive Despite official support for ROL domestically + financial support from abroad, FSU countries make little progress Why not more successful? 6
What is Markovits argument? What sorts of reforms are most likely to flourish? Role of local support Potted plant reforms Value of interim laws Do the legal reforms in Iraq and Kosovo indicate a new approach to legal development? What conclusions should we draw? What lessons for the future? Should we leave countries to their own devices, as the NYT article on Somalia argues? What might be the consequences to such an approach? Is law & development a doomed project? 7