Keller on Common-Law Qualified and Absolute Immunity

 Scott A. Keller, Baker Botts LLP, has posted Qualified and Absolute Immunity at Common Law, which is forthcoming in the Stanford Law Review:

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But caselaw and scholarship has paid surprisingly little attention to how qualified immunity could be reformed — short of eliminating the doctrine altogether. While there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under 19th century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This article therefore provides the first comprehensive review of the 19th century common law on government officer immunities. In particular, it canvasses the four 19th century tort treatises that the Supreme Court consults in assessing officer immunity at common law: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, 19th century decisions.

These historical sources overwhelmingly refute the modern prevailing view among commentators about one critical aspect of qualified immunity: The 19th century common law did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties — like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the 19th century common law: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden of proof.

These three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that will sufficiently protect the separation of powers without needing the “clearly established law” test — which pervasively denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial. In sum, restoring the 19th century common law on state officer immunities could address many modern problems with qualified immunity.

--Dan Ernst

Roberts on Emergency and Rule of Law in the British Empire

Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has posted From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire, which is forthcoming in Chicago Journal of International Law 20 (2019):

Why are contemporary laws and techniques that state authorities use to crack down on political dissent so similar across countries? This Article argues that at least part of the answer may be found by turning to colonial history. The Article has two Parts. In the first Part, the Article explores the manner in which, over the course of the nineteenth century, the British deployed various different legal and institutional approaches in response to an Irish polity that consistently refused to submit to British authority. In the second Part, the Article examines the manner in which the approaches developed in Ireland were exported to other parts of the empire, in particular to India, South Africa, and Nigeria, over the course of the late nineteenth and early twentieth centuries. Along the way, the Article considers the big picture significance of such developments relative to the nature of the rule of law. While, over time, the deployment of increasingly legalized and formalized approaches may have played a positive role insofar as they served to soften and displace the potential for more direct violence, enabled by declarations of martial law, such developments came at the cost of the incorporation of much of the repressive approach employed in contexts of emergency rule into everyday legality. Far from conflicting with the rule of law, this development represented the form in which the expansion of the rule of law primarily occurred — serving to entrench and legitimize the repressive practices in question.

--Dan Ernst

Sharafi on rule of law and constitutionalism in India

Our blogger Mitra Sharafi, University of Wisconsin, has posted the paper, "Parsi Legal Culture, Constitutionalism, and the Rule of Law" on SSRN. The piece is forthcoming in a volume edited by Nawaz B. Mody. It began life as the conclusion to Sharafi's book, before being removed and expanded into its own separate article. Here's an abstract:

Parsi legal culture has played an important role in the constitutional life of modern India, helping nationalists pivot from extra-legal resistance to the business of running a state. This article suggests that Parsi legal culture reinforced constitutionalism and the rule of law in India. As ideals, the latter two concepts impose restraints on the exercise of power. During the late colonial period, elite Parsis led the early "constitutionalist" phase of the Indian National Congress movement (1885-1919) and insisted on working for change through existing state processes and structures. Early Congress leaders Dadabhai Naoroji, Pherozeshah Mehta, and Dinsha Wacha were products of Parsi legal culture. They were turning outward--for the benefit of all Indians--the law-focused strategy that had worked so well during the preceding half-century for their own community. Their approach was abandoned as the nationalist movement became a mass movement circa 1920 under Gandhi's leadership. The values of Parsi legal culture and the Congress constitutionalists were relegated to the back burner from the 1920s until the late 1940s. However, they were brought back to life upon independence, particularly in the Constituent Assembly that created the Indian Constitution (1947-50) and in the interpretation of the Indian Constitution after 1950. The early Congress model of "constitutional agitation"fed into what B. R. Ambedkar would call India's "constitutional morality." Both required the relinquishment of "the bloody methods of revolution" and of Gandhian civil disobedience alike. Early independent India could re-activate constitutionalism and the rule of law as ideals because these ideas were preserved readymade within a particular politico-legal tradition, albeit one that had fallen out of favor in the decades before independence. This tradition was heavily influenced by Parsi legal culture.

This article also answers the question of whether rule-of-law values were inescapably colonial: they were not. A history of tension within the colonial state highlights the distinction between those who believed there had to be restraints on the exercise of power, and those who wanted to rule without law. Debates among colonial state actors and the harnessing of rule-of-law values by the early constitutionalists reflected the distinction between the projects of colonialism and the rule of law. The British initially used the rule of law to justify colonialism because it was there, neatly packaged and ready to ship, in metropolitan thought and political culture. They underestimated the concept's autonomy and its potential to eat away at the foundations of empire. This insight also addresses the question: how did a population that achieved such affluence and success under British rule reposition itself in decolonisation mode? In fact, there was no necessary contradiction between Parsi legal culture and the rejection of colonial rule. Through its embrace of rule-of-law values and constitutionalism, Parsi legal culture helped build a solid foundation for the newly independent polity.

Further information is available here and here.

--posted by Mitra Sharafi

Lino on Dicey, the Rule of Law and Imperialism

Dylan Lino, University of Western Australia Law School, has posted The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context, which was published in the Modern Law Review 81 (2018): 739-64

The idea of the rule of law, more ubiquitous globally today than ever before, owes a lasting debt to the work of Victorian legal theorist A.V. Dicey. But for all of Dicey’s influence, very little attention has been paid to the imperial entanglements of his thought, including on the rule of law. This article seeks to bring the imperial dimensions of Dicey’s thinking about the rule of law into view. On Dicey’s account, the rule of law represented a distinctive English civilisational achievement, one that furnished a liberal justification for British imperialism. And yet Dicey was forced to acknowledge that imperial rule at times required arbitrariness and formal inequality at odds with the rule of law. At a moment when the rule of law has once more come to license all sorts of transnational interventions by globally powerful political actors, Dicey’s preoccupations and ambivalences are in many ways our own.

—Dan Ernst

Craig on English Administrative Law History

Paul P. Craig, University of Oxford Faculty of Law, has posted English Administrative Law History: Perception and Reality, which is forthcoming in Judicial Review in the Common Law World: Origins and Adaptations, ed. S. Jhaveri and M. Ramsden:

The history of English administrative law remains to be written. It is a task of considerable magnitude, given that it requires understanding of case law, regulatory legislation, government and politics spanning a period of circa 450 years. The task is more especially daunting given the range of different areas that were subject to governmental regulation broadly construed. It is, therefore, unsurprising that the intellectual task has not been fulfilled. This has not, however, translated into a dearth of opinion as to English administrative law history. To the contrary, as will be seen below, there are views in this regard, and some are strongly held. There is, as in any intellectual endeavour, the danger of an inverse relationship between the strength of a person’s conviction and the depth of their knowledge.

This chapter is not a history of English administrative law, since that would, as noted, require a book in itself. It does, however, offer a lens through which to view two different conceptions of that history, which are termed perception and reality. These terms are admittedly tendentious, in the sense that they convey, by their very semantic meaning, my view as to the more accurate picture of administrative law as it developed over time. There is, however, nothing special in the use of language in this regard, since those who adhere to the opposite position deploy language that is equally tendentious.

The discussion in this chapter is part of the larger study concerning the export and reception of administrative law in other common law jurisdictions. The effect of the disjunction between perception and reality on such export is interesting. The causation is contestable, and does not necessarily always pull in the same direction. Thus, perception of administrative law as being relatively modern may have hampered its development elsewhere, and at the same time encouraged other jurisdictions to feel freer in adapting its precepts to local circumstance.

The essence of the argument presented over the following pages is as follows. The commonly held view about English administrative law is that it is of recent origin, some dating it from the mid-twentieth century, some venturing back to the late nineteenth century. This view, when unpacked, is premised on assumptions concerning doctrinal case law and regulation. There is an empirical and a normative foundation underlying both assumptions. This ‘intellectual package’ constitutes the commonly accepted picture of administrative law as it unfolded in England. This, then, is the perception, grounded in four central constructs concerning case law and regulation, viewed from an empirical and normative perspective. It is set out in the first part of the chapter.

The discussion thereafter is concerned with what I term the reality. It mirrors the discourse concerning perception, insofar as it considers case law and regulation from both an empirical and normative perspective. It will be argued that the commonly held view does not cohere empirically with reality concerning case law or regulation, and that the normative assumptions underlying the perceived view do not square with the general approach of the legislature or the courts during the foundational period of administrative law, which runs from the mid-sixteenth century onwards, with earlier origins. This disjunction between perception and reality could have had an impact on the ultimate exportability of English administrative law. The chapter concludes with a sketch of the implications for comparative study of other jurisdictions. These implications are the subject of discussion in the remaining chapters of the volume.

--Dan Ernst

Nedzel on the Rule of Law in the United States

Nadia E. Nedzel, Southern University Law Center, has posted The United States, Checks and Balances, and a Commercial Republic: An Experiment:

This chapter explains how the concept of the rule of law grew and changed in the founding of the United States. The United States was founded by people who thought they were adopting their common law heritage. United by a hustling spirit and a deep distrust of big government (especially England’s), the Founders were deeply influenced by the Scottish Enlightenment and its focus on individual liberty (as can be seen in Madison’s Federalist Papers), and they were determined to create a commercial republic (Hamilton). With the passage of the Constitution, they were fascinated by the French Revolution, and some (Jefferson) felt a strong accord with its theoretical concepts. Others (Adams) believed that the Philosophes were unrealistic, far too involved in theory, and had not seen the down-side of legislation-centered democracy.

While originally English in the focus on limited government and individual liberty, the American conception of the rule of law first became more self-conscious, more self-critical, and next developed a deeper (or at least more self-conscious) set of checks and balances than its parent country. That concept – the American understanding of the relationship between man and government – has gradually become more conflicted and intertwined with Rechtsstaat during and after the Great Depression and the creation of a national income tax, social security, and other ‘safety-net’ governmental programs to help those in need, as will be discussed in Chapter 5.

--Dan Ernst.  H/t: Legal Theory Blog

Pfander on the Military and Dicey's Rule of Law

James E. Pfander, Northwestern University School of Law, has posted Dicey's Nightmare: An Essay on the Rule of Law, which is forthcoming in the California Law Review:

The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Essay builds on Dicey by offering a comparative assessment of military encroachments on the rights of the nation’s citizens during times of war. Rather than comparing British common-law norms to European constitutionalism, as Dicey did, this Essay compares nineteenth-century common law as applied in the courts of the United States to the constitutionally-inflected rules that those courts apply today.

This Essay focuses its comparison on three common-law remedies: habeas to secure release from military detention; trespass to obtain an award of damages for wrongful or abusive military confinement; and tort and contract-based compensation for the military’s destruction or taking of property. The modern Supreme Court has recalibrated each of these common-law regimes and now evaluates the legality of the military’s actions almost exclusively in constitutional terms. As Dicey might have predicted, the shift away from hard-edged common-law rules to open-ended constitutional balancing corresponds to a marked loss of relative remedial effectiveness. This Essay examines some of the factors that have shaped the remedial decline, as reflected in Hamdi v. Rumsfeld and Ziglar v. Abbasi. It then offers suggestions as to how the Court might keep the infrastructure of rights enforcement in better repair.

A Handbook on the Rule of Law

Out from Edward Elgar is Handbook on the Rule of Law, edited by Christopher May, Lancaster University and the late Adam Winchester, formerly Lancaster University.

The discussion of the norm of the rule of law has broken out of the confines of jurisprudence and is of growing interest to many non-legal researchers. A range of issues are explored in this volume that will help non-specialists with an interest in the rule of law develop a nuanced understanding of its character and political implications. It is explicitly aimed at those who know the rule of law is important and while having little legal background, would like to know more about the norm.

The quite interesting TOC, which includes a historical section, is here.

Rubin's "Ottoman Rule of Law and the Modern Political Trial"

Avi Rubin, senior lecturer at Ben-Gurion University of the Negev, has published Ottoman Rule of Law and the Modern Political Trial: The Yildiz Case (Syracuse University Press):

In 1876, a recently dethroned sultan, Abdülaziz, was found dead in his chambers, the veins in his arm slashed. Five years later, a group of Ottoman senior officials stood a criminal trial and were found guilty for complicity in his murder. Among the defendants was the world-famous statesman former Grand Vizier and reformer Ahmed Midhat Pasa, a political foe of the autocratic sultan Abdülhamit II, who succeeded Abdülaziz and ruled the empire for thirty-three years.

The alleged murder of the former sultan and the trial that ensued were political dramas that captivated audiences both domestically and internationally. The high-profile personalities involved, the international politics at stake, and the intense newspaper coverage all rendered the trial an historic event, but the question of whether the sultan was murdered or committed suicide remains a mystery that continues to be relevant in Turkey today. Drawing upon a wide range of narrative and archival sources, Rubin explores the famous yet understudied trial and its representations in contemporary public discourse and subsequent historiography. Through the reconstruction and analysis of various aspects of the trial, Rubin identifies the emergence of a new culture of legalism that sustained the first modern political trial in the history of the Middle East.

Hill on the Ideological Origins of the Rule of Law

Peter J. Hill, Wheaton College, has posted The Ideological Origins of the Rule of Law, which he presented at The Life and Legacy of Douglass North: Celebrating the 25th Anniversary of North’s Nobel Prize in Economics:

The background conditions for the emergence of the rule of law are important but underdeveloped. This paper traces more fully the relationship between the concept of human equality and the development of the rule of law. It presents evidence that the Jewish and Christian concept of all human beings as God’s image bearers is an important contributor to the rule of law in Western civilization. The formulation of universal human equality was not, however, a sufficient condition for the emergence of the rule of law. It took centuries of articulation in different institutions and social settings. It only reached full fruition when it was joined with an understanding of appropriate political systems as expressed by political theorists such as Locke, Montesquieu, and Madison.

H/t: Legal Theory Blog

The American Administrate State at Holy Cross/Word from A. V. Dicey

Later today and tomorrow I get to attend a terrifically interesting conference at Holy Cross organized by Donald Brand on the past, present, and future of the administrative state.  The keynote address by R. Shep Melnick, is "The Administrative State in Action: Lessons from Title IX."  Among the participants are several scholars who’ve addressed historical topics or taken a historical approach to the subject, including Aditya Bamzai, Daniel Carpenter, Paul Moreno, Ronald J. Pestritto, Joseph Postell, and Elizabeth Sanders.

My brief is to present the argument of Tocqueville’s Nightmare, much of which develops how American lawyers and judges revised the first of three aspects of the Rule of Law stated by Albert Venn Dicey in his Introduction to the Study of the Law of the Constitution (1885): “that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”  In case something happens while I’m away, here’s the second:

Albert Venn Dicey (wiki)

We mean in the second place, when we speak of the “rule of law” as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. . . .  With us every official, from the prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. 

Tushnet on CLS and the Rule of Law

Mark Tushnet, Harvard Law School, has posted Critical Legal Studies and the Rule of Law, which is forthcoming in the Cambridge Companion to the Rule of Law, edited by Marti Loughlin and Jens Meierhenrich:

This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.

Cheesman on the Rule of Law & Burma

In 2016, Nick Cheesman, Australian National University published "Rule-of-law Lineages in Colonial and Early Post-colonial Burma" in Modern Asian Studies 50:2, 564-601. Here is the abstract:

These days the rule of law is often invoked in Burma. Although its contemporary
salience is partly a consequence of recent global trends, the rule of law also has
lineages in the country’s colonial and early post-colonial periods. To examine
these lineages, this article distinguishes between its procedural and substantive
conceptions. Whereas the latter conception recognizes the subjects of law as
freely associating equals, the former is compatible with a range of political
practices, including those that are undemocratic. The records of decisions in
criminal cases before Burma’s superior courts during the period of British
domination suggest that some semblance of procedural rule of law did exist, and
that it was compatible with the rule of colonial difference. Out of this procedural
rule of law a nascent, substantive type emerged during the early years of
democratic life in the post-colony, before the onset of military dictatorship. The
article concludes that more effort to structure interpretations of the rule of law in
history might better enable discussion about the concept’s continued relevance.

Condos on violence & legality in colonial India

Mark Condos, Queen Mary, University of London, published "License to Kill: The Murderous Outrages Act and the rule of law in colonial India, 1867-1925" last year in Modern Asian Studies 50:2. Here is an abstract:

In 1867, the Government of India passed one of the most brutal-minded and
draconian laws ever created in colonial India. Known as the ‘Murderous Outrages Act’, this law gave colonial officials along the North-West Frontier wide powers to transgress India’s legal codes in order to summarily execute and dispose of individuals identified as ‘fanatics’. Arguments for the creation and preservation of this law invariably centred around claims about the purportedly ‘exceptional’ character of frontier governance, particularly the idea that this was a region that existed in a perpetual state of war and crisis. Far from being peripheral in its impact, this article explores how this law both drew upon and enabled a wider legal culture that pervaded India in the wake of 1857. It argues that this law was a signal example of British attempts to mask the brute power of executive authority through legalistic terms, and was also evocative of a distinctly ‘warlike’ logic of colonial legality.

CFP: Arguing for the Rule of Law

[We have the following announcement.]  Call for Papers: Arguing for the Rule of Law: Using the Hebrew Bible and Caricatures of Foreigners in British and Spanish America.  Friday, October 26, 2018.  Newberry Library, Chicago.  Deadline for Applications: November 8, 2017.

This is a call for papers in anticipation of a one-day conference to be organized by Jorge Cañizares-Esguerra (University of Texas) and Richard Ross (University of Illinois) through the Symposium on Comparative Early Modern Legal History.  The conference, to be held at the Newberry Library in Chicago on Friday, October 26, 2018, is entitled, “Arguing for the Rule of Law: Using the Hebrew Bible and Caricatures of Foreigners in British and Spanish America.”  It will address the following topic: How did settlers, imperial officials, indigenous peoples, and Africans in the New World seek to demonstrate, or disprove, that a polity respected the rule of law?  (The phrase “rule of law” is modern; but the core of the idea is not).  Colonial rule invited accusations of arbitrary government and systematic lawlessness.  This conference will focus on two common techniques used to assess whether a polity respected the supremacy of law.  First, controversialists asked whether governance accorded with God’s expectations of justice as laid out in Scripture, particularly the Hebrew Bible.  Second, caricatures of other societies could be held up to make one’s own appear lawful and just, or the reverse.  British American settlers applauded the civility of their law by reference to the presumed barbarism of the Irish and Amerindians.  They saw liberty in their exploitive legal order by opposing it to the supposed absolutism of the Spanish and French empires.  Spanish settlers justified their rule and derecho by contrasting them to the law of indigenous polities and of their New World rivals.  The conference will bring together historians, law professors, and social scientists to think about the complex debates about the rule of law in the English and Iberian Atlantic. 

Interested presenters should submit an abstract of between 200 and 500 words and a c.v. by November 8, 2017.  Please send submissions and inquiries to Richard Ross [rjross@illinois.edu]; 217-244-7890.  No previously published work will be accepted. Applicants will be notified by email shortly after the submission deadline.  Accepted participants will be required to submit a full paper of no more than 10,000 words by the end of September 2018. Papers will be pre-circulated and read by all participants.  The conference will pay for travel and hotel expense.

Cheah on Singapore's BIA Desertion Trials

W. L. Cheah, National University of Singapore Faculty of Law, has posted The Curious Case of Singapore’s BIA Desertion Trials: War Crimes, Projects of Empire, and the Rule of Law, which is forthcoming in the European Journal of International Law:

This article studies a set of war crimes trials that dealt with the contentious issue of deserting British Indian Army soldiers and were conducted by the British colonial authorities in post-Second World War Singapore (BIA desertion trials). Though the British intended for these trials to facilitate the return of British colonial rule, these trials resulted in to unexpected acquittals and non-confirmation of sentences. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in war crimes trials. By applying British military law as a ‘back-up’ source of law when prosecuting “violations of the laws and usages of war”, these trials contravened the rule of law by retrospectively subjecting the Japanese defense to unfamiliar legal standards. However, by binding themselves to a pre-existing and relatively clear source of law, the British were constrained by the rule of law even as this empowered the Japanese defense. This article’s findings also speak to broader debates on the challenges of developing a universally legitimate international criminal law, by provocatively suggesting that, from a rule of law perspective, what is most important in a body of law is its clarity, accessibility, and comprehensiveness rather than its source or its purported ‘universality.”

A Symposium on the History of the Rule of Law

Word has reached us of the online publication a series of papers on the history of the Rule of Law in the Hague Journal on the Rule of Law. (They will subsequently appear in hardcopy as a special issue of the Hague Journal on the Rule of Law co-edited by Neil Walker and Paul Burgess.)  Professor Burgess tell us:

The papers are, in the most part, the result of a workshop on the history of the Rule of Law hosted by the Legal Theory Research Group as part of the Legal Theory Festival at the University of Edinburgh last May.  All of the papers can be found here.

Three of the papers (Canevaro, McKnight and Møller) relate directly to the workshop, one (Sempill) was contributed specifically for the special issue of the journal, and the other (Burgess) provides both a justificatory argument for the relevance of the other four papers and an introduction to the special issue generally. 

The paper titles and their authors (with links to the pdfs of the papers) that make up the upcoming special issue are: 

Neglecting the History of the Rule of Law: (Unintended) Conceptual Eugenics - Paul Burgess (Edinburgh) 

The Rule of Law as the Measure of Political Legitimacy in the Greek City States - Mirko Canevaro (Edinburgh) 

Offences Against the Res Publica: The Role of Public Interest Arguments in Cicero’s Forensic Speeches - Elizabeth McKnight (UCL) 

Medieval Origins of the Rule of Law: The Gregorian Reforms as Critical Juncture? - Jørgen Møller (Aarhus)

The Lions and the Greatest Part: the Rule of Law and the Constitution of Employer Power - Julian A. Sempill (Melbourne)

Smith on the Politburo's Rule of Law Doctrine

Ewan Smith, Hertford College, University of Oxford, has posted The Rule of Law Doctrine of the Politburo:

This article charts the development of CCP doctrine on the rule of law in the formative period between the Sixteenth Party Congress in November 2002 and the Fourth Plenum of the Eighteenth Central Committee in 2014. The Plenum sought to define the role that law has to play in the constitutional order of the People’s Republic of China. It issued a Decision that revised the official account of the rule of law, so as to reconcile it with the constitutional principle of Party Leadership. This account is unlikely to be revised for the foreseeable future. The article uses the reported content of Politburo Study Sessions to shed light on the leadership’s deliberations during this period. This source has been underused in the literature on rule of law in China, which has focused more closely on the decisions of other constitutional organs, especially courts. The article explains what is to be gained by focusing on these reports, and how we can interpret them as a source of CCP doctrine. It then sets out certain key conclusions from each study session, showing how the develop over time, and how they connect together. It then compares the language used in the study sessions with the language in the Fourth Plenum Decision. It shows how the Politburo’s conception of the rule of law evolved, and concludes that the major building blocks of 4th Plenum were already immanent in the first half of Hu Jintao’s administration.

Functionalism and Synthetic History

Functionalism has any number of academic meanings. In anthropology, it references some of the early ethnographic work I mentioned in my last post–carried out with the aspiration to entirely map the inter-relationships of a bounded social space. But today I am using the term much more narrowly to describe the manner in which the inquiry which led to my first book unfolded.

My turn from ethnography to history was driven by an attempt to answer a very specific question about the field commonly called law and development–a short hand in the United States for varied attempts to mold foreign legal systems through the export of American law. In particular, the field has been characterized by many as passing through cycles of optimism and failure, with roaming geographical foci over the last several decades. The ever-present, but in my mind unanswered question, in post-mortems of these efforts is why they persisted when their putative justification, normatively desirable transformation of said foreign legal systems, never materialized when subjected to critical scrutiny.

For my work in China, my initial fieldwork did not provide any satisfactory answers to this question, and seemed to only recapitulate earlier work about the micro and macro-deficits in the technocratic administration of these programs. I did encounter several reflective practitioners whose complex relationship to their work made me puzzle over the larger cultural and political ideologies in which they felt trapped.

Out of simple frustration, I started trying to trace precedents for law and development work in China. Suddenly, I started to make all number of surprising discoveries. Most striking was that there were historical precedents to American efforts to impact Chinese law long before 1978, and well before the consensus starting point for law and development’s origins in the 1950s.

This is when I first unearthed Roscoe Pound’s time as an adviser to the Guomindang government in the late 1940s, Frank Goodnow’s infamous involvement with Chinese constitutional processes in the 1910s, and Warren Seavey’s tenure teaching at a missionary law school in Tianjin in the 1900s. I found influential Harvard President Charles Eliot writing about property rights after a mission to China for the Carnegie Endowment for International Peace, and issues of the Harvard Law Review contemplating American law as a colonial science in the 1890s. I even found commentaries on Chinese law included in the very first turn of the century volumes of the still popular Green Bag publication.

But beyond these higher-profile actors, I found prior to 1949 all number of smaller engagements that portrayed a seemingly forgotten period of intense interest in Chinese law by the American legal profession, and then only a subset of a broad popular fascination. Alfred Aldridge's The Dragon and the Eagle and John Tchen’s New York Before Chinatown were two early discoveries that made me realize how shallow my preconceptions were about the depth and complexity of Sino-American history.

Every decade I pushed into led to ever-surprising findings until I arrived in the Revolutionary era to find a complete reversal of the law and development ethos in dialogues about Chinese law among the Founders. Many Founders were hungry to learn as much as they could about China to inform debates about America’s future legal institutions – from Thomas Jefferson’s deep interest in the Chinese service exam to Benjamin Franklin’s personal obsession with Confucian political philosophy.

Wood's "Fall of the Priests and the Rise of the Lawyers"

New from Hart is The Fall of the Priests and the Rise of the Lawyers, by Philip R. Wood:

This fast-paced, inspiring and original work proposes that, if religions fade, then secular law provides a much more comprehensive moral regime to govern our lives. Backed by potent and haunting images, it argues that the rule of law is the one universal framework that everyone believes in and that the law is now the most important ideology we have for our survival.

The author explores the decline of religions and the huge growth of law and makes predictions for the future of law and lawyers. The book maintains that even though societies may decide they can do without religions, they cannot do without law.

The book helpfully summarises both the teachings of all the main religions and the central tenets of the law – governing everything from human relationships to money, banks and corporations. It shows that, without these legal constructs, some of them arcane, our societies would grind to a halt. These innovative summaries make complex ideas seem simple and provide the keys to understanding both the law and religion globally. The book will appeal to both lawyers and the general reader. . . .

Vividly written by one of the most important lawyers of our generation, this magisterial and exciting work offers a powerful vision of the role of law in centuries to come and its impact on how we stay alive.