Distinguishing the Law from the State
Few political theories take the time to distinguish between the law and the state. This is a catastrophic mistake. This oversight begins with a neglect to reflect on the nature of institutions, but it also involves a carelessness with early political history. Early modern political theory did meditate on the origins of governance yet while so much more is known about the origins of humanity today, it has become an afterthought for most contemporaries.
An examination of early civilizations and cultures show the law predated the formation of the state. Moreover, the clearest examples exist in written accounts widely read and well-known. The Israelites believed God gave them their law long before he gave them a king. Medieval monarchs routinely found their rule constrained by ancient laws and traditions. The law existed distinct and apart from political power. Moreover, the law found a sense of permanence in its connection to the divine and its sense as an inheritance. Lycurgus and Solon gave their cities laws. These mythic figures made reform a challenge for subsequent political figures. It limited their options and served as a check upon power.
Today constitutions serve as a legal constraint upon political leaders. The strongest constitutions adopt a certain aura as a legacy or inheritance. The American constitution, for example, has an almost divine quality among its citizens despite its widely acknowledged defects. Nonetheless, its strength comes not from legal technicalities, but rather its implicit legitimacy among its citizens. The American constitution acts as a constraint upon political power through the commitment of its citizens rather than any single passage in the document.
A Blurred Line
Nonetheless, modernization has increasingly blurred the lines between the law and the state. Even before secularization eradicated any notion of divinity from the law, the state asserted the authority to make, execute, and interpret the law. Today scholars view the law largely as an extension of the state rather than as a constraint upon it. The early modern theorists, Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, all recognized the singular importance of the law. Locke revealingly notes, “Wherever law ends, tyranny begins.” He understood the absence of law did not necessitate the absence of the state. History has shown arbitrary political power ignores the authority of law even when it pretends to make, execute, or interpret it. Locke feared the arbitrary rule of absolutism. More recently Hannah Arendt reflected on the arbitrary power of totalitarianism. Indeed, both totalitarian and absolutist governments gave precedence to the state over the law.
The problem theorists face when they consider the law as distinct from the state is its mutability. The law changes over time. In modern political societies, the state makes new laws and repeals old ones with regularity. The law no longer has permanence. Even constitutions have mechanisms for their amendment and courts discover new ways to interpret old laws. Hobbes believed the law needed someone to create it so his social contract gave absolute power to the sovereign. He writes, the law “can’t be made until men agree on the person who is to make them.” But Hobbes saw the sovereign as a necessary evil for the creation and enforcement of the law. He believed law gave order to human society, but he did not believe the law constrained the lawmaker. How could it? Like God, the lawmaker was beyond their own laws.
Law as an Institution
Rather than a mere tool of the state, we must recognize the law as an institution in its own right. Theorists typically think of political institutions as formal organizations like a legislature or the judiciary. They have officeholders who exercise power. But this approach to institutions simply recognizes institutions implicitly rather than reflecting on its meaning and role. An institution offers a distinct context for the formation of rules or norms for human interaction. Every institutional analysis then must consider the context it creates, the relationships it establishes, and the identities it fosters. In thinking of the law as an institution, it helps to think of the law as distinct from laws. Just as Carl Schmitt and Chantal Mouffe have said the political is distinct from politics, the law has a meaning distinct from laws.
The law offers a context for social order. People accept and obey laws as rules for behavior. The enforcement of the law is incidental to its obedience. Most people accept the law as an implicit context for their behavior. Norms may govern other institutions, but the law exists in the background. Once again, let’s remember that institutions overlap one another. Whether it is the school or the family, institutions offer their own distinct contexts with different norms for behavior, but they do not replace the context of the law. Both contexts exist simultaneously. Sometimes the norms of institutions conflict so people must make a choice either implicitly or explicitly. So many stories tell of how a person chooses between their family and the law. These are not simply tales of internal conflicts about justice, but conflicts between institutional commitments.
Inclined Toward Equality
The universality of law means it tends toward equality. Of course, some societies use the law to impose hierarchies. Frederick Douglass gives an account where he worked as a caulker in Maryland. The white caulkers hated him because he was a slave and drove down their wages. One day they ganged up on Douglass and assaulted him. His owner wanted to press charges, but slaves could not give witness even in the case of their own victimization. Laws frequently distinguish between slaves, nobility, race, religion, gender, and sexual orientation. Sometimes the recognition is necessary to protect minorities, but far too often these distinctions cement hierarchies through the law.
Nonetheless, the natural inclination of the law is to foster equality. Whenever some groups have license to abstain or ignore the law, it is a sign of its weakness rather than strength. Other institutions have imposed their hierarchies into the law. The rule of law depends on its institutional hegemony. Consequently, it only exists when it can eradicate hierarchies under the law. Hierarchical relationships can continue to exist. Parents may have authority over their children. Employers can have authority over employees. But these hierarchies cease to have relevance when questions of law exist. Everyone will have equal standing. Any other arrangement means the law lacks supremacy over other institutions.
Identities Under the Law
The law formalizes social identities so whenever the rule of law exists, people have confidence in their equality even when they embrace a subordinate position as a student, an employee, or even volunteer. It limits the extent of their acquiescence to authority. Indeed, political leaders face constraints on their power from the law even when they have the power to create new laws and repeal old ones. But when the rule of law does not exist, it formalizes hierarchy and expands the context of social subordination. It is not enough to consistently apply the law. The rule of law refers to its institutional hegemony which necessitates an eradication of hierarchies in the broader social context.
The American South has struggled to give rise to the rule of law throughout its history due to legacies of slavery and racism. The institution of slavery makes the rule of law impossible. It is inconceivable to imagine slaves as social equals under the law. Of course, slavery is the most severe form of social hierarchy imaginable. So, the Antebellum South never abandoned the law, but made it subordinate to the institution of slavery. Naturally, slavery brought about contradictions in the law. The earlier example I mentioned about Frederick Douglass showed how the laws designed to ensure slavery made the application of other laws impossible to enforce. After the abolition of slavery, Jim Crow legislation made the law subordinate to the institution of racism. The embrace of racism in the American South as an overarching context to justify social hierarchies again complicated the enforcement of many laws.
The Inevitable Consequence of the Rule of Law
Democracy is the inevitable consequence of the rule of law. Authoritarian political systems depend upon hierarchies to create a politics based on exclusion. Democracies may have hierarchical political institutions as well, but they exist under an egalitarian context of law. Moreover, democracies demand leadership rather than authority from its elected officials. Leaders find ways to include others into the political process. The political equality of a democracy depends upon the equality the rule of law provides. Authoritarian political systems can never fully embrace legal equality, because their system depends upon political inequalities. Over time the liberalization of the law requires the democratization of politics, while democracy remains incomplete without the rule of law. I should emphasize this is the relationship between liberalism and democracy.
The Rule of Law and China
On the other hand, it is no surprise authoritarian regimes like China struggle to give rise to the rule of law. Francis Fukuyama has described China’s legal system as rule by law. My framework interprets the dominant institution in China as the Communist Party (CCP). The capacity of the state in China remains surprisingly weak. Indeed, the CCP keeps it weak through its control of the coercive apparatus such as the People’s Liberation Army. Xi Jinping has far more authority in his role as CCP Chairman than as President of China. Looking over its history, it’s remarkable to discover Deng Xiaoping never served as China’s President. Mao Zedong served as President for just four years. The position has little power. Technically, the Premier runs the state rather than the President. Of course, real political power is found in the CCP.
As we circle back to the role of law in China, we find the hegemonic authority of the party gives the judiciary little authority over its members. Indeed, the CCP prefers to discipline its members internally rather than through the judicial process. As a result, the law in China depends on the willingness of the CCP to follow it. Even Xi Jinping’s campaigns against corruption within the CCP involve the party’s internal mechanisms rather than the empowerment of the legal system. Let me be clear. The law is weak in China, because the communist party remains so strong. The emergence of the rule of law in China will depend on political reform as much as reform of its legal system. Moreover, It’s difficult to imagine any substantial progress without some progress toward democratization, which is unlikely under the administration of Xi Jinping.
Of course, some nations have strengthened the role of the law under authoritarianism. Singapore is an example where the law has credibility, despite an authoritarian political system. Nonetheless, the rule of law is incomplete in Singapore. Political authorities use the law to cement their control. True equality does not exist when those in power establish laws meant to marginalize the opposition. Of course, Singapore is far more democratic than China. It does use elections to legitimize political authority and this allows for opportunities for political inclusion. Still, the absence of greater civil liberties means the law does not treat the opposition as equal to political authorities.
Still, the rule of law does not exist anywhere in its purest form. Like democracy, the rule of law is more of an ideal than a reality. Exceptions always exist where the egalitarian ideal of the law falls short. For example, Black Lives Matter Protests have brought attention to the uneven application of the law in the United States. These misapplications of the law reflect more than a failure of the criminal justice system, but the incompleteness of democratization and the rule of law in America. Nonetheless, the protests also reflect a desire for reform and progress. The irony of the protests is they reflect a demand for the law. The protestors truly want a consistent application of the law rather than its abolition or abandonment.
False Appeals to the Law
The great irony of authoritarianism, on the other hand, is its false appeal to the law. The order that authoritarians wish to impose so often involves the abandonment of law. Rodrigo Duterte in the Philippines and Jair Bolsonaro in Brazil have both legitimized extrajudicial killings in their own countries. Rather than enforce the law, they choose to overlook crimes and misdeeds in the name of order. Totalitarianism takes this form of lawlessness to an extreme. But the explanation of this phenomenon requires a more thorough examination of another institution widely known as the state.
A Few Sources
Björn Dressel and Cristina Regina Bonoan (2019), “Southeast Asia’s Troubling Elections: Duterte Versus the Rule of Law,” Journal of Democracy
Elizabeth Economy (2018), The Third Revolution: Xi Jinping and the New Chinese State
Thomas Hobbes (1651), Leviathan: Or the Matter, Forme and Power of a Commonwealth, Ecclesiasticall and Civil
John Locke (1689), Second Treatise on Civil Government
Barry Weingast (1997), “The Political Foundations of Democracy and the Rule of Law,” The American Political Science Review