JOSE MARIA MARAVALL AND ADAM PRZEWORSKI Introduction (Our conta question is why governments door do not set aoording to laws ‘The tational answer to ths question has been that the law has fn autonomous causal efeacy. People obey tho law because it isthe Jaw: actlons flow prior norms. This view Is now being contested by fngument that law cannot be tested san exogenous consent on fcions. In some sivations, the actions the Individuals went to and do undertake are stable and prodctabe even they donot plement aay antecedent la, The normative conception ofthe rue oflaw segment ofthe imagi- nation ofjursts. his implausible asa dascription. Moreover tis incom pits as an explanation. Why do people obey Ines? Why do they obey a particular law? Would thoy obey any norm just because ts lw? By a normative conception, we mean ony the following. Fist set tral constitutes law if and onl it satisfies some formal conditions, Second, tho rules that salt these formal eanditionsaze obeyed ence, law rules wien actions fallow anterior norms, The question whether the law rules is thus one of ebigatin, obediance, or complence sts of te formal requirements for st of ral to qui as law converge, According oa standard formulation (Fuller 1964 eh 2) laws fare norms that are (2) general, 2) publicly promulgate, (9) not etroae se, () clear and understandable, (5 logically consistent, (6) feasible, and (7) sable overtime. Moreover, these norm mut bave a hierarchi tal structure (Raz 1979: 210-29), so that particular norms confor fo general ones Law rules "thos people who have the authority to make, admtnis ter and apply the rules in an ofellexpacty..do actually adiaiter the law consistently and la accordance with is tenor” (Plans 1980: 270). This implies that they also abstain from undertaking actions notJos Mac Maravll and Adam Prtworst ‘empowered hy rules. As Solum (1994: 122) observes, when lw ules, no exralogal commends aro treated as obligatory. " Inthe strongly normative conception. the law isthe source its own rormativiy The relation between laws end actions ls sean as one of| ‘blgation,ifaorms quai aslaws, aon its te duty of publicists. follow them anditisthe diy ofeveryone to obey ordersof publics jtied by thee norms, Bat even If the motivation to act acceding the law is aot moral, a conesption is normative as ong as actions {lisinglshed by their consstony with preessting norms "Regerless of the motivation fr compliance, th most valuable affect ofthe rule of law is that enables individual entonomy. Rul of lw rises It possible for peopl to predict the consequences of her actlons fad. hence, to plan ther ves, Tote Rez, Ta curtailing abltraty power, fndin securinga well-ordered society, subect accountable, principled ‘government isthe vale ofthe rue of law” (1994: 861). Tn ou view, this conception confuses a dscrpsion for an expanaion ‘Situations in which clone caa he desertbd in rms ofthe mormative ‘conception may transpire even when these actions do not implement fry anterior norms, Regularity tod not be an olfect of rales: itis the egularty of actions that makes them appear as i they impbmented prior norms, Moreover, actions of government that are predictable, sa- ble over time, and inited generate the condition for individual auton ‘omy atributed tothe rue of aw by the normative conception, whether ‘or not these asians flow antsrlor norms. {Po develop a postive conception of tho rule of law, one ust start with police forces, their gals, their organization, and their eons “To advance ther gels, aeons use the instruments they can muster “These instruments may be economic, nitay, oF ideological. But they Also include specfaly state powers. The instruments availabe o Sto Berlisoont as an owaer of rhass media are distines from these at his ‘isposal asthe president of AC Milan, And both are diferent from the instruments avaiable to en Italian prime minister "ea pio of asta, eat th somevia pede prerogatives, These prerogatives aro instruments, rather than presetp- ‘ions (Grees 1999: 366-7). As such they are a source of spectcall n- ‘ittlonl power Citizens can vote; tho legislature cen pass lavs; enurts fan las orders to put people In ail in almost all countries the exec ‘tive can propose the budget. private frm can buy voir, leglstors for judges, butt cannot sue ins. Noiter ean the cours, State instasions are popalted, which means that some people have speatalyisitusonal powsrs. The site as « whole may ae hi Introduction ower with regard o private actors ~for example, when the legislature ‘Imposes taxes, the bureaucracy collects them, and the court sanction those who evade them. Butthe particular sate fttns may confront ‘one another, as whon tho lgllature vos against the executive or when courts sentence a minister nal Moreover, because these inttonal powers are valuaio to private actors, they may’ ry to lie therm in tonflcts inthe private sphere or In their relation toa particular state ‘gency. Thus private interests mey soskoinunce the legsature;e- ‘ens may seek ocours in courts io counteract an arbiteary decision of ‘the bureaucracy. ‘Whenever everyone is doing what Is bost for him or her, ven what everyone else des, actions are prodiciabo end, unless sme exogenous event occurs, stable. Hence Is not stably that astingulshes the rule of law but te distribution of power: When power is menopelizod, the law Isat most an instrument ofthe rule of someone, Only i eonfcing polltical actors seak to resove their confiets by recourse to lem, does Taw rue, ‘An autocracy a situation in which one pleal force monopolizes| power and rules unbounded, may entall what both Barros and Hotes, flowing Montesquieu, refer o a5 "ule hy law" Here, law ithe instru ‘ment ofthe sovereign, who, by definition ofsoverigaty is not ound by it. Moreover, because his stat of affairs s based on a monopaly afore, nothing compels he sovereign to rule by la. Extalegl commands ere 15 force as those dresed a as As Holmes pus it, ru of end rule by law ooeupy a single con- tinuum and do not present mutually exclusive options.” Whas distin Juishes them [snot tho nature ofthe lew, whether i operates ae & tool oF as a framework, but the power syssm to which they respond, In Holmes’s words, “the powecfl will ede power only to rival power ful forces" Rule of aw emerges when, following Machiavells advice, selé-intereste rulers willingly restrain themselves and make their be havior predictable in order to obtain a sustained, voluntary cooperation of well-onganlzed groups commending valuebo resources, In exchange {or such cooperation, rulers wil protec the intrest ofthese groups by legal means, Rule of aw can preval only when the relation of poe forces is uch that those wi are most powerfalfnd that the ew i on their sda ox to put i conversely when ln isthe pefereed too of the powerful, ‘To cite Holmes again, "To say that “lw isa too of the powerful {sotto embrace or promote cynicism.” If such well-organized groupe ‘cannot ust laws to ther advantage, they will promote thelr inerotsJosé Marfa Maravall and Adam Prasworski by extralegel means, Itbey an, an institutional equilibrium ensues ta ‘which all relevant forces find i wef to ehannel their public acons through pelea insistions and conflicts are process onthe eran nfinstiations Those who have the wots use the lgslture, those who have laws their side use cours, those who have access use he bux eaucracy. The difference between rly aw gnd ral of aw es ben in ‘he dstebtion of power, the dispersion of materia resoures, te mul: ‘pleation of organied interests in societies that spproximate te rule ‘of ay, no group becomes so strong as o dominate the others, andl, rather than rofet the interests of single group, suse by themany Tn any inslttionel equllbriam, action ae predictable, undestand- tbl. table over Se, and limted, Hone, indviduss ean anticiate the tnsequences oftheir own Behavior; everyone can euionomousy plan fons Ife. As Troper argues, the “constraints on individual actions are ‘dierent from legal oblgations and taking tem Into accounts ferent {tom obedience: Neverthelses, one cold ela that the result i sim! lar to that expected of the Rechsster,...eizens are poticaly fee. ‘because they can prodit she consequences of ther actions. TT eitizens are tobe abla to predic actons of publi oi’, they must know what to expect of them, What enables etizens to Precast tions of governments is not whether These actions are descrbed by laws. For example, to anticipate whether the legisntare wil ral» taxes, private economle agents need to know ths only th executive cn ne fo tax legislation, whlch means that the profeet mst enjoy support of ‘he ruling party or eoalkion, thatthe bill must be approved by a parla ‘mentary commit, and that it must be pased by a majority of those ‘otng in tho lgslture as awhole, Note that some steps in this ecample tre not destribed by las: the approval of the execusve comsiteeof| the ruling party ls not Indeed in some counties taxes can be ralsed ‘only ifthe inate Is approved by a Confederation of Industry. To form protons, economie agents treat the writen and unwritten ules in the same may ~specfealy, they consider the need for approval by the ruling part oe by interest groups a8 equally necessary a5 the approval by the legisla. Tobe able to say "This will ever happen because the leggininterest oppose i es good a base for predicting what the fovernment wil do 48a constional provision against takings, ‘But if regularities eres endogenously, so that laws are codieations ofthe actions the political actos choose to pursue given wba ethers ‘to, why do we write some ofthese descriptions dove as “laws? ist in some stations there are multple ways in which the ola te ofasocety canbe srurured, Wecan, for example, oloctone 10, oF Introduction ‘more legishtors in a district, and exch ofthese electoral systems may induce regular and predictable, but not necessarily the seme, aeons ‘on the part of voters and of poles paris, Yt fo make these actions consistent, we need to pick one among the severl possible ules, Otier ‘wise, partie wl ofer two candidates In dsteict and voters wil vote to elect three. As Kornhausor (1999: 21) puts i, "The lagal structure denies which of many equlria the players wil infact adopt. The enactment ofl results in the instistion of «new equibtum.* ‘Secon Ins ndieatto ctzens whon to act agains goveraments. By coordinating expectations, thoy facilitate collective actions that impose sanctions on governments. Weingast abuts a particular importance ‘othe constitution: if government acts in ways that aro not predictable from the constitution, clizens havea reason to treet these kes of gor ‘ernment as parcalary undesirable and to single ox those deviations {br punishment. Hence, laws serv a focal plats flitting coordina tion among ctizons. Finally, we write ams only with rogard to those actions to which ‘we intend to apply the coerelve power ofthe sat. Tis is why many regularities are nat dressed as legal norms: consulting the Sto Paulo Confederation of Industry on tax legislation i nt. Even in some so ieties people customarily wear black at funerals while in others they ‘Wear white, sock eusioms are aot coded as lws. Even if everyone atinds @ chureh, church attendaneo is rarely « matter of legislation, Buti you do not pay taxes, you got a In sur, laws inform people what expoct of others, Even iitwere to devine from the announced course of weton, the sate announces whet ‘tplansto do, inluding what tintands to punish. Such announcements rove safety fr individuals, At dh same time, they felitate coord neon of sanctions aguint @ government that deviates fom ts own ‘announcements. n tis sens, publely promuigted rules provide an ‘qulrium manuel. And beesuse ciizans value predictably, andthe security itaffords, they may care thatthe government would not violate laws even If thoy do not care about the actions that consti toe ons, For example, people may enndone the ft that pltcal partes AAnance thelr activites by imposing an informal tx on plc onteects, ‘yet condemn these ations because they volte the In what sense are equilbri Insttutonal? One way to tink ebout ‘this question i to follow Calvert (19956, asking whether the same equilbrium, the samo set of intersctions, could and would emerge in & situation without or witha particular insttion, Calvert compares to situations. In one, randomly selected pars ofindividuls repeatedly playJosé Maria Maruvall and Adam Praeworsht a game in whieh ven “tts” generating oucomes thar icvetyundosrble iio stot, eeryhing the sae xt at {herein etna eld he ce wh stared bute Sum of ech Interac and when sr, for everson abit She pat record te pra ih wr os happens tobe nate. Nowevejon “copes andobcveldesabe outcome ensue. Thun et ince cooperation th nto of he “areaoe™ B= {ryote te insti fhe decor wes aos ang the ‘aon beter caret lon sn ite consequnen nding “yon canprae Coperaion woul notocerwtoubeltan ‘Fe drecur boca cnperton not an oul ofthe press tng Suton To ela enna becuse is ost perce of atta owe Py ptalons erat atone ness thy shape incentve a expec es Aree firsts ina pa he "eS rs a psf rei nthe f Sesh (969, 1995 osed i is volume by Sane Casnes as wl ab Tope, heise propery of ernie” ree. Pye poreaon doesnot conse papery tls th pars wha ans e possesion si spf a nes oa Ao i property adoped by sare on ine Singlenmanber dtc ota vee. Een El wate bea sch ue, Feanot Leno ak tere shot it cnatan property totshecause regards oy istentone, ote undo fy con Inter ofthe ato steamer dt my Scone nnnighe tars wine cst nll vot Tppopla epee ofland wiht ald” conte ote wi oot ‘op tas propery state rls do nt pred tons om big kr. The ex ceutvo ay lnc a conmand ead cals Bus the execie does Sot subma il the glare and hae propery approve the ommend wl ote eegsined y courte ala A pote! arg ‘fon wer roan hun fe oppooort may ine wny iat ize, But {wi ot hve won te encom ithe costute fl bx what couse wing shanag jor fw, surpation oe by aminoiywil os be eign oan lotrel We ‘Than a acon ee unersoed pends on consti Pus, vores other purl aconeate Undertaken at of enter, But consti le shape ees tho ena rule Sete sas an of eget, an the excess Iieodaction ‘commands to be roongnized as law, 3 has an incentive to obtain & legislative malorty Incentives Include rewards and punishments. By creating new pow: 8, insitudons make it attractive to use these powers. In Calvert ex. ‘mpl the “director” has the power of gering people who defected in ‘thea, thus condemning them to privately administered punishments. Inequlbrium, everyone wantstonform the director about the outeome of an interaction and everyone nds i usefl toes the director about {he past reord ofthe eurent partner. A general heading a dictator ship may went to become an elected president, even ihe facos the risk of being defeated in lecsons. In tur, the formation of the Ministerio blicon Brazil wil make public ofials thnk more than twice before ‘they engage in corruption. Finally insttuttons induce equlibra by imposing coherence on Ju teations of actions. A decison by an inition is see by ater «9 ‘conforming to the institutional framework only if 1 eaa be predicted ence, insthitona actors must provide reasons that would be seen by others as consistent with their isttsonal prerogatives, These reasons fare not unique. Bu they must b recognized by other s vali Within {he legal conten, this imps that they must be couched in particlar language. A higher court would not want to say “We did bereuse tis Friday” because the lower courts would not follow tis ruling Judges canspeakiojudgesonlyinthe imguage flaw, even if they may have ll lsretlon in what they are saying. (Besides his chapor in ils volume, 20 Troper 1995,) “Thus far we have done nothing but distinguish the posible stetes of furs, Our emphasis threughou eth situations that appeer to eon form to the normative model ofthe rule of lw may and do arise even ‘wen politcal actors, some of whom have specifically insitttione pre- "vgatves, do not implement any anterior rules. Morcover, to repeat for {he nal sie, such situation ganerate al the virtuous effects atttbuted to he rue ofiaw in the normative conception The question now is, Ur ‘er what condlons should we expect such situations to transpire? (Cen any instational equlibrium emerge and survive under enycon- ions? This question was central In the Marxist debates about the “relative autonomy of instances.” The instrumental version of Marx ‘sm maintained that poltcal institutions, insiding the law, can only be reflection of underiying economle power Only some poltical nd legal institations are compatible with the capitalist orgeizaton of pre- ‘ution, One mechanism by which this correspondence is generated {that those endowed with sconomie power wie i 9 gain plicalJong Marfs Maravall and Adam Presworski power and use lows to porptuaie thelr econome power. Ast result ‘emoeracy i just the best shell for what Is n fect always a ctator Ship ofthe bourgeoisie (Lenin 198214), This version was cntesed by althassr (19658) and Poulanteas (1964, 1967) Bven fin the last instance," whatever that means, the legal syste could no: unde ‘ine the economic system of capitalism, each ofthe “instances” has lagi of is own, Specialy, the law cannot bo used a6 an insu tment of particul interests of epitalists beeauso te legal system must be genera end Snternalyeoberent to constitu law As Barros shows, ven rl bylaw must respect the speetciy of law as an instument otrule, ‘Another way to pose his question ito ask o what extent instttions | can constrain the power of organized groups. What matters from our point of view is that unless poles, Induding legal, insthutons are {least somewhat independent fom miltary or economic poner. the fect of institutions eannot be distinguished from tht of what Snchez- ‘Cuence refers to as brute power” The rule flaw is concevabi only i ‘nstituons tame or transform beuts power ‘oles ergues that poieal actors act within te Insttional rame- work only tothe extent tht insitions constitute effective means for pursuing organized interests. In our rms, tho equim i insite tional only all he powerful interests channel thelr eonflcts through fhe instintions. Henes, the chanees of polital forces when ‘hey use Instttions must not diverge too far from the power of organized in- ‘eress, Th lgaleystom mst recognize ths power; otherwie it will hot be used. Thus, those groups tht have the capaciy to defend their est protected bythe law. tnd snore people will organize to val themselves of this insrument. AAs organized interests multiply, «soeioty wil come closer tothe rule of| Jaw, power vel not ke monoplized, and the law wil not used by the fr agelnst the many “Power polis incubates the rule of aw.” ac- ‘cotdig to Holmes; his optimist conclusion i that al Interests become ‘organized, power is dispersed, and th law is an Instrument used by ‘everyone ‘Democracy cannot exis unless at lest one rl followed ~ namely, that which regulates who should occupy offie given the resuls of eee tons, Preworski argues that tls rule is obeyed when polis actors Ihave no mach etstake i sk boing defeated when they seekioastabish A catorship. And beesuse the stakos ae large in counties that are ‘lent, eludes that in wealthy countries tls ules impemented even fcr tances neg fn rt power” whereas in Chino he exeapon ee n ia nstatna egies of goreramea fs under tsk thn ant np Soe pic one ih ate eect then Hote tacos rine. bears pet at We re hota Ing tte scons impiemer tne eero nr ont t thy aes rg a ty ane dosed by norms How thn die sang So i re npn tax os energy ot cna ves pla ese tans eo? "hm goer sneer tht th stuns actors antpat hat & deviate rm te expe bara wold la hp Sent fom thereon Te ln dsneon bre between sacs tht are eens tra he goverment. Extra nts tres adnate by these he governess hla the acannon tne sens ae opt oe Felder Sesns te ial csounebily mare sm hey evar or ph neu vrata os Sacro rowers Sts ein 999, eral Senco te thos nd hy oe pve een pone ‘Tacs hora mechaten (Donel 19941939, "hing heh heer nt ober, Gara cls tat hoor methane tent cy nc no ety ‘lk nhs tbe mory cs ctl fn ene met es sot manage exerci sleet ann anette bribe people tre cg ery dressy or bol near prt fom acing presliauy yast, Sedna evo prow onl olin, Ante pace rt srry tenes eee ® fener nrc cost betes ajar ‘and the rule of law. aera ‘coring Wega cn ca prevent mor eensgesons tnt onan of 2 fogetr whens gveanet tastes tes te The Sinton pan tpt en i cpl Dan ot Son ates not tree ovement lady tsbey Raber ters eve eng prasad es wat cites wil onadr ts aor resin and tas evn? to az Arton i rape wi tent inet mst bo rtd Spec te who try be adretged by 2 pre ange Sn a ops tags ss no aru pt en oughJosé Maria Marevall and Adam Praeworski ‘Wieingest characterizes this readiness to act against transgressions by ‘the stato asa "uy" is induced by the possiblity that inthe future the gorerninent may change the beneficaris and tho viet. ‘Burns aeons ofeltizen be coordinated forthe government fear external sanctions? Ifthe goverament knows who Is organize, It cen llude with some organiod interests agast other Interest. In tan, if challenges to tansgressions by the state arise spontaneowsy from the cs society, the government cannot anticipate wheo transgressions ‘wil meet with opposition. cording to Smulovite, such decertralized, Uncoordinated enforcement is more effective than coordinates aon. ‘Whether therajoryrestrnnsisel or ancpetesreactonsfrom the civil sec actlons of goveromentreliited in these views een when the sate Ise unitary act Into classical eral view, however, only a fivided government can be &lnited one. Divided and limited powers fan be stable and avoid the unconstrained wil of rulers: 2s Hampton (1394) an Kava (1986) argue against Hobbos, this isthe foundation of the rule oflaa sovereign whose powers aro cieumseribed. Noreover, ‘amore separation of powers snot snough, because seperation of pow: ‘rs leaves unlimited latte tothe legislature, decisions of wtich must be implemented by al other branchos of government. Whats needed is ‘sjstom of checks and balanes that makes it impossible for any perc ‘ar authority to underke actions unilaterally, without th cooperation ‘or consent of some other authorities (Manin 1994), “The Madisonian theorem asserts thet a government vide inthis ‘mannee vill bea imted, moderate one, Whoreas the theory ofthe sep tation of powers defends fonetonal boundaries between the different publle authorities, defined with precision In order to preven! interter- ‘noes from one branch of government in the functions assigned to an- tthe, the theory of checks and balanoes sustains thet each branch of| {government should exerdise some inluence on the others (Ve 1967) Only then would limited government bea slf-enforeing equilibrium. To ‘quote Manin (1994, 57) "Each department, being auhorizot to exer flse a part ofthe function primarily assigned to another, ool inflict parti oss of power io another ifthe ltr didnot remain in ts proper ef... each world be dscouraged from eneToaching upon the Juri fiction of another by the fear of retalnion.... tho ini) dsrbution ff power would hold no relvant actor would want wo dovat from i.” ‘As one agency counters another agency actons ofthe governnent as & ‘whole become predictable and moderate. stitutions! design what Troper als the “mechanical con:option”~ bviously maters. The paricuar agencies must have the means and 0 Introduction ‘the tnoentves to check one another. tn particule, If he government 4s & whole sto bo limited, there must be no "unchecked checkers." ‘agencies that can check others without being subject to checks by ther, If the courts can dette to other branches of the government, and these branches cannot cantrel the cours, te power ofthe fudiciary is ‘unchecked. Moderation emerges inthis conception arly i every action ofan branch requires cooperation ofsome other branch tobe effective, But whats the soure of per of government agencies? Why woul the legislature eccopt decisions ofthe courts? Why would the exoei- tive implement insructions ofthe lgisiature? The experince ofthe ‘only dictatorship discussed in this volume is parieularly eye-opening IW shows that a government may be limited even if the divided powers ‘hat check one another are not iniatonal. Its sufcent that they ‘have rel power fn Chile, th four branches ofthe armed frees, which {together formed the Junta do Gobierno, hed a long treon of auton: ‘omy and strong corporis intress. None ofthe four military branches ‘wanted another io dominate the government. Hence, from the beg ning ofthe detatorslp, Junta deesions had w be taken by unanimity, so thet each branch checked the othors. The resul was that even though {he Junta asa whole had the capacity to act twill internal differences led ito conform tothe constitutional document it orginated and even to decisions ofthe Constitutional Tibunal it erette, Henoe, Barros ar. sts, any division of powers sufclent o generat limited goverument aslong as these powersare separate and real. Notethataven though the Constiutionat Tribunal was appeinted by the mila, oon assumed tutonomy and at various occasions ruled agninst the Junta, The oppo- sition to the mitary regime thus found in the tribunal em institution to ‘onstain the Junta, Conversely, ts suftten to Jook a communist constitutions to see ‘tha formal division of nstutonal powers Is no sufcent oil the government Walle some ofthese constitutions would satisfy any libel, ‘communist rales used the single party to contol llth initatlonel powers, Divided powers were just a facade, Institions are effective ‘nly f there is some distinct external power behind them, Th lian sudiciary, doseribed by Gunner, eeame an effective check only wien ‘twas backed by big business andthe media Burnett and Mantovant 1998: 261-8 n tur, the Venezuelan Congress and the Supreme Court ‘ound themselves powerless against the president when Hugo Chavez ‘ould muster overwhelming popula, as well as mlltary,syppor. ence, «system of cheeks and balances Inads the government as ‘8 whole to ac in ways that are predcable end moderate whe (0)José Maria Maravall and Adam Franworskt these instlons have means and ineatives to cheek one ancter and (@) when thelr institutional prerogatives are backed by support from conganized inerots "We have been speaking generically of insiutional” equbra be: ‘case wo see the domination by tho lagslature and the domlzation by the eourts es modalies of sitions that satisfy al the reqtrements sitributed exchisvely tothe rule of law in the normative eancepion. ‘Neudlss ta sy, this not the vee of most logal scholars, win se the rule of aw as qualitatively diferent fom te rule of major. Forexam- pe, according to faz (1994: 260), “Legislatures because of tr preoo- ‘upation with current problems, and thes fek need to secure re-election bnye public all vo auscopible tothe inluenens ofthe short erm, are ‘only fo lable to lols swings and pene measures" and “The rie of| Taw unctions in modern democracies to ensure fine balan between the power of s demoerei legislate athe free of traditn-based tlctine” (1994; 26), Dworkin (1986: 376) goos even furker: “Any ‘competent inerpretetion of the Gonstituuon ase whole smustherefore recognize. tht some constitatonal rights are designed exec opre- ‘ont majorities from fllwing thelr wn conviction about what justice Teauires.” For such views, as Guarer obsoves, “Submitting the per= formance of publefanctions to the serutiny of indopondent jages be ‘ones an effective and essential check onthe exercise of polial power, bes the supremacy of hela and guarantees cizns’ gts.” "Tis oppostion of democracy and tho ru of aw istyplaly posed in ‘onoeptual, almost logical terms, esa conflict between abstract princi les of popular sovereignty and oflusln. Wo donot see itas sich. What fre the grounds to juxtapose Intemporat lgsaiors to oracks of "the luo "wadion,” or even “utes Are wo asked to Delle that judges have no interests ober thi to implement “the law." thatthe: decision power is nondscretionary, thet independence guarantees impartiality bf decisions? Because the legitimacy of nonelected authorities rests on ‘hoir impart the courts have en insttutonal elPinterestin appear tng to bo imparts, or st last sonpartisia, But thee are no grounds tothink ~ indeed, as both Guarnieri and Meravll evidence, thre are easons to doubt - the independent judges always actin a rondscre ‘onary, impartial manner. The rule of judges need not be the rao ofa. ‘nd, to cit Guarneri, Ifthe interpretation ofthe laws becomes the ex- ‘lusive domain of sel-appoinad bureaucrats, the risk for democracy s widen.” ‘Examining «histrialy distant situation tora out 0 be purtiularly nightening: Fontana strates the diference between tho ul flaw ‘and the rule of judges with the experience of Prance in the second halt of tho stnteenth centry. The judllary was generally seen as the most Jmporant of powors, independent and unchecked: this position wasre- fnforeed by ¢ chaotic and contredlezory lags system. But justin was ‘ot impart it was “sacrificed to gree, stupidly, socal privilege nd ‘map legal forms" Fontana watts that “In his Hssats Montaigne a¢- ‘cused repeatedly the Robe ofeorruption and desribed justice isl as ‘commodity sod for & prize wo those who could afford it" sly ‘ould not heieve that the independence ofthe udielary woud be bene Acialto th county 28a whole if magistrates turned into a moneyed enst ‘bent on the protection ofits own privileges, a instiation which abused its autonomy to serve te interests ofan advantaged minority” Diller- entastemps to reform the sysem of este filled due t “te incapecty ofthe magistracy to promot its own reform” Legal order could only De rebult at the end ofthe century through poles, withthe Nantes agreements. "The relation between democracy, understood in this context as the rule of majority nd the rula of law is always en everywhere 2 eon cezote relation betwean two populated Institutions: the legislatures and {he cours, "Where lng instttons sueasefuly cleim broad authority to regulet and structure social interaction” Fergjoin and Pasquino obsorve, “democratic rule seems somowhat restrict. And the eon- verse seems true as wall: whore parliament claims sovereign authority to make whatever law it chooses, judicial instutions are relegated to 4 subservient stats ~udges become, at best, agents ofthe legislature and interpreters of ts commands" Legislatures, courts, tbe execute, and the regulatory and the investigative authortes may oF may not be Sn conflict. The Igislture may fd shat action is deemed bya court, contrary tothe contusion and may desist rom pursuing it free. Bt ‘tmay push through a constutonsl amendment or simply change the rales by which the courts are repulsed. The cows wil heve it nthe frsteas; tho leglalture in the second. Thisiswhathorelation batweon, democracy and the rule of aw is about. No more than tht: a world of populated institutions in which actors may have enacting Interests ‘and diferent powers behind them. And as Tushnet (1999: 56) pus i “The Supreme Court at its best is clay alot better then Congress at sts worst But Congresses best s bear than tha Court at te worst ‘Constutonal cours and governments may come into confit over ‘eologiea sues, But even when they are not vided by ideology, both Politclns and judges desire to expand thalrintutlnel authority Each ofthese confcts, as ersjohn and Pasquino see them, is “polite! in‘he sense that tis rooted in desires to maintain or increase authorty lands not necessarly connected to norms of lgabty themselves.” And jhages have e natural advantage vied-vispolticians since, ghon the Hierarchical orgaslastion ofthe jer. oy can soe ther elective sti problems easier than competing pollens, "he general oonsensus is that during roent times the victors in these conics have been the courts. Thi rend Is boing generally deselbed se “jaicalizaton” of poties, Yt is necessary to distinguish the fnhanced julilel authority over lelslstion ~ "constiutionaliation” ~ {fom jutilal actions agains politician, “eriminalization.” ere and Pasquine describe the trend toward the dsplasement ofthe pola! by te juriie), of elecve and accountable organs by ronsecountable court, They argue that courts acquire extenave au- thorty over legislation whenever the politcal system is fragmented. in fedsive, or gridlocked. lathe Kelson model, specialized tribunals oui ret lepsiatve prerogatives, beceuse constitutional acjudica- tions positive egsintive uncton- Buroven inthe United States, where 4udges are imited to applying laws wo particular eoptroversies and can~ ‘ot Fepel statues they render decisions ofthe lgslature invalid when ‘hey decide not to apply them on eonsstusional grounds. ‘arava argues that criminellastion of polities is response to col- Jusion among poles, When polticias collude, succesfully hiding thelr actons from the public, eletoral as woll 36 parlamentary ec- tountablty mechanisms fal This Is whon groups inthe el soci ty, whether business, unions, or media, with Interests of thr ov, seek to activate judicial action. For example, a revolt agenst what tras in effect an iogal tax imposed by diferent poical paris wo Anance their activities led business groups in Italy, France, and sev rl other countries osbek judicial intervention, fo the end, the courts prevailed, But the lines af paler donot necessarily juxtapose legisatires and ‘sours, Courts can he sed by poltiians as instruments in partisan Struggles, Even if he courts are independent they need not be impar- tial, When the partisan opposition so0s no chance o win eedions, ‘may seek to undermine the government by provoking judicial actions ‘against incumbent polelans. To consolidate its partisan advantage, ‘the incumbent government may uso endl judges to hares the op ponents. Courts are instruments inthis confit. The rule of ay means simply compance with judicial decisions. And, as Maravall observes, losirs may comply not beats they recognize tho decision as agal ot Just but arly boone they do not want to theeaten the stations Invroduction ‘Te contet btn rl aay nd la ast ender bate eos who tn ven tnd uv tise Whee legit oreo pra a parelrstenosios sata ee ‘a hlf vt on pov cutene a aoe whee nal acre procter fs sng watever esouret hya ‘ute tls iste enter sone wrth Ba bettie we Bloe it ew cae pe ‘trom polities “ Sense References ect ecee ere Bet rn ce tte na ne nr, Se ete te rt. Canisage: Cambridge Unis Pre fom. Se ent mane commen Goce yn ha apices ‘Soca bio, An Aor: Valet of Mchigas Pasa area ete eee Sahai aaiencanete eens Ee ce I cents Stet tae a OAT nae se eee tear mau ies aot mar safest Rata nk a nes se necator ad Sot renin re eal a iSO eaten tear ot sae (cuenta ie name nt Son So ea 1999 Horio Acounebiy and Now Pope” Ania See {ay Diamone, and Mare Manor) he Sel Roatan State Powe ad tye Reece on ga ra Fate ie mcs se Bae Gu ok aces Tomes 1967 °K arom 6 re maa 3a Dok Ares de Pepe Prior Ada 8 we Adus, Sno Sa, ad Bernard Mi oe) 199, emo ‘cal an Reprnetaaoy. Cudge Cans Unt PresJosé Maria Meravall and Adamn Praeworski a, sph 1979, The Autry of Lanna: Cleon Press “bu Beste Publ Doman Ona Caresden Fes storie 1965 Sprch Ace Cambie: Cbg Univer Pres "00, The Gna f Soca Reby. Nom Yok: re Fs. lam, atente. 1994 "Eye he Rl Shapiro), Te Ae law, Nomos O07 Ne York New Yost Unser Press ‘roa: 1095. La Ho Suerte da ug coneaonel a Faa "Ane ( mtrpretoo Dro Brass Bry, spot Mic 1398 ting the Canton Aray fom te Courts, Posen Pinos Unersty . ve MC IB6T Content and te Separation of Pos. Oxted Part OneSTEPHEN HOLMES. Chapter One Lineages of the Rule of Law ‘This chapter elaborates highly stylized and simpllfed account of ‘he emergence of two features ofthe rule of law as commonly under stood: predictability and equality, Loyal historians would stress the role ‘ot economic, demogreple, technologie, scentf, religous, and cul ‘ure factors in bringlng about and stabilizing institutional innovations ‘asserting novelas legal ceriinty and equality before the law. Wea Aeserbing the ole of important sot ators in promoting o inhibiting such developments, thoy would weave ito ther story a tariely of fac: tors, including ideology rational passions, provision within ier ‘ted insthutons, and the unexpected consequences of habitual heavier Ina changed sting. My objecave, in what follows, ss bth mere modest nd more theoreti "lm to clarify tho reasons why poweeUl polities actors might fi ‘ously resistor warmly embrace th rule ofa We cannot explain why the rue oftaw dovs or dows not marge in a specie historia cont by invoking noting but the strategic celouatons of powerful plial ‘sctors. But he sl-nteresed rasoas why posterfal members ofa 0 ‘ey might encourage or dstourage such a development ere undoubtedly relevant and deserve a focused tvatment, as, firs, why goveraments, with the means of repression in their ‘hands, might be induced to make their own behavior predictable, For Ielp in answering this question, | turn to Machlavell, Hs Thess, es sell, 1s that governments are driven to make their wn behavior Dredletable forthe sake of cooperation. Govaraments tend to behave asif they were “bound” by law, rather than sing lav unpredictably 28 8 stick to discipin subject populations, lst beeause they feat tebe lon than because they nave specific gals (uch a fending off attempts by foreln invaders to stze thetr terior) that require a high degree of voluntary cooperation from specif socal groupe possessing specific‘Stepher Holmes: skills (eoldirs) and assets (the tx base). Along similar Hines he ac- Feptance by politcal rers of ober basi eetures of constitital gow fmnment,svch as freacom of speech and peviamentary Immirty. can be explained as a by-produc of thelr attampt to obtain the informa. tion, esental to effctive governance, that i locked ins the heads tof knowledgeable citizens and dat cannot be disiodged by eepresive Ieasure, They may also, presumsbl, recognize tele own tendency, ‘when shielded fom eric, a overlook dangers and make lrepareble or the sake of parsimony, | assume that “te poles rue" in- termalyeoherent, enpablo of acting upon rational calculations, anda ead in fall contro of the mesns of pression, All of these tls are historleal achievements, However, and would hve to bo explened in ‘fuler acount On this simplified assumption, { examine the claim {hat “the politcal rule” fst submis to regularized constrains when the peresves th benefits of so doing. At fis, tiselsim sounds almost ‘ria. But itis not trivial because fs generates the testable hypothesis ‘thatthe rule of sw will emorge or aot emerge, be strengthened cr weak- ‘ned, be extended or contracted, asthe goals and priorities of politcal Fulors end the parameters oftheir ealeuations change. (Systems that restrin rulers conatitutonaly can bocome selF-sustalning, this analy ‘also implies, {they manage, on an ongoing basis, to alloca power to individuals with a stong ieontve to Keep the system in lace.) ‘Any attempt to explain the emergence of constitional restraints ‘alses the question of why most goveramenis in the past and present remain largely unbounded by law. One possible answer is thn polt- ical rulers are hopelessly myopic, emotional, and incapable of scng fon their own long-term interest Alexis de Tocqueville defended exactly this poston “I remote advantages coud prevall over the passons and feeds of the moment, tere Would have been no fyrannice] soreregas brexclsive iannies”” Machlavell, my gude in what follows inks fou! the matter somewhat dierent. He suggests that poll rulers Cheve to unconstitutional methods when they antipate tha: the re- turns to making ther hehaclor predictable are lower tan the returns to ‘makingit unpredictable. Repressiveand acquisitive eles ae ultely 0 fevor a shift foward the rule of ew if they suspect that it will unhorse them. Bullies and plundererswho could never Roush ifthe rosof the fame were crystal clear and reliably enfored ~ cannot be expected to ‘romete or embrace & system tat will radically devalue the ride sklls » reqaith Coutts 69.2103 “inoages ofthe Rae of Law ‘of acquison and domination thy have perfected inthe state of mature, (have drawn this conelusion afer studying the Russian ease) Keeping things Mud ean bo an especially appealing strategy for acer. tin ype of ruler. Thats prosumably en important resson why the rule fle is historically rare Injecting uncertain Into socal situations \wel-knowm mechanism of contol: if subject popultion never knows ‘whats going to happen ots unlly to prevent a serious challenge to the government. Moreover, «government may continously choose to destabilize propery rights if it fears thet stabi pattern of owner- ship would provide a platform from which to launeh attacks upon et. ‘fst, whether politcal rulers choose to govern by pretty oF ‘unpredicabllty depends on a number of specif factors that change ‘over tie: thelr goss, thelr personal habits and ski, the obstacles ‘and enemies they fan, their privileged social partners, the resoureas iret ville to them without mobilizing cooperation rom the c= ens at large, and the sls, wealth, and organtzatlonal eapcty oftheir subject populations. ‘This Machlavellan analysis, while suggestive, remains sncomplete Decauso it foeusos only on legal eartsinty asthe oflspring of regulriced ‘conscaints on state power. We ordinarily associate the culo of law not only with prdictabity bu eso witha roughly equal treatment of social soups. Libera theory expresses thi deal of equality before the aw in its fantasy of a society made up of individuals rether than orgenied Inverts, Distetusive outeames, however re determined not by ead ‘counts but by power asymmetries among organized interests in n0 9 ‘leis power dispersed equally among dsassoiated individuals, As ‘esa tae, however Iboralor democratic teat all etizens equally before the aw. One reason for thls ubiquitous deviation from ideal ju to has already boen suggested: a police authority that submis 10 ‘constitutional restraints to obain voluntary socal cooperetion has na Incentive treat all groups equally, eeause It needs tho cooperation of ome groups more than the cooperation of other. In parcaar, needs the cooperation of wal-organizod groups with asses that canbe sly ‘mabilzed for war and other state purposes. ‘The rights of big landowners wore socured log before the rights of| ‘orphans for th banal reeson that governments are selectively respon ‘veto groups wih political overage, that, to those whore cooperetion| they think they need. Historical, well-organized interests able to de- fond themselves and achieve thelr goals by exralegal means are also ‘the first to gain tho efsctive right or eapaciy to defend themlves and ‘schleve their goals by egal means governments favoritism to groupe‘Stephen Mokmes, espevelly useful totselPresuls naw enforcement thet operates onto ‘racks, Law ean become highly predictable for privileged social strata ‘while remaining maddeniagly etre forth less well-off, What looks ‘onpaperlike an mparl system bebaves in practic ikea“ sat.” ‘The question then aise of how privilege privet lw”) ever evolves {nto something more ineusive, Formulated dlferenty, why ard wien floes spocial-inteestlnglaton ~ as well a iss in prosecution, adju- ation, and so forth ~ give way toe lgal stem thet, roughly speaking Serves all cizens equally? For the answer to this seeone question, [ tum to Rousseau, THis answer, in effect, ethat inequality before holaw never gives way ‘oequlity before the law No egal sstem teas allcizens equal. Even the mnost advanced Reckisetaat retains to some exten a Dopelstat. ‘Thats to sy, we define the rl flaw in sucha way as to exclude the Aisproportlonate inuence of organized interests onthe making, inte pling, nd epplyng of aw, we havo dontifioda system that hs never bristd and ean never exist, But this does aot mean that we shoud junk the concept or dismiss i 8 usles for descriptive purposes. The rule flaw ean stl be disingulshed fom rl hy la, and not only because ‘seme government, for thelr oD Purposes, choose to make their be- havior more or ls proditable and other governments, for thir own purposes, do cot if we Identify the rule of with that point of Heel justin where all tizens are tested equally says Rousseau, then We tnave to admit thatthe rule of law ean never be achieved. Bat it can ‘be appronimated. The circle of tose able to protet thle intaess ably by legal means can be doggedly expanded, Liberal justi i a proximated, Rousseau argues, i predtely thse societies where many oughly equal groups making up a large proportion of tho pepulation fl guin some leverage over the government end ts privlegeé socal partners. ‘Whoa abroad and divers plurality of groups possesses some degree ot poll overage, ondinary citizens wl be able to ada lg instr tents to the extrelegal means that they usully employ to prove their Interests, Such plraic sociy sa lose as wo can gto the ule of las aknough tremans highly imperfees. A government tatatiemptsto ‘become responsive to such a cacophony of complints and asyiratons, far one ting sks callapsing ino incobrenco. But the most conspicu ‘us dlsorder of such a system, aording to Rousseau, is asymmetrical plurliem, Weiten lew may decige oterwise, but members of pol cally inuentil groups revive, in reals, much better legal potection than members of politealyinsigeant groups ‘Lineage ofthe Re of Law Group powor can peer be fy equalized. Bt the mary of et ‘zen na hghy pire one neers blogs to gosh ith Some poli leverage, thos item wil ono precbl bes, be {Dletouselnw to pursue th ga and safeguard tn xo o some Cxter. Tey wil bbl forint, ho he pole pve the rm pate petra lb ale ty te wae landors,mployes against employers, wives aglnt bende Athi against cedars cnnuner apn producers, ot omens ‘tina suspects gals he pea Moreover compote ens be. ‘er membersfthe oll nd econo lteinay contr dest “tpi pover ox erry zee wo ae hereby analy tbls dtd tr ntaret dope ha eae dest ours nse emeptalzadon ote st as syed os ‘Machivel’, lps ar arlatons ong Wer oie ad win tho same ber soetyovertin. parle ibe expan what we ‘meen when we ayes nominl bral goreramen nism Ingo ae through ay iret toa te ra of This as ‘hon the conta betreen song end weak poms ar lpi, at “Sven sow welvoratin scl networs monopole pole! a. isan tur uw noe nent nessa well hemes Buvdeeresng ofl low czee vio blogs poor ogee tha play wees stain Onexpinaen why his igh oat isthe goverment sven tu shiting ee problns nd esr, ‘sometime rong notated ty vores 4 Lema th sre nay eh nuh stanon ores, to ae eso, ier of law, ons whose "iis have bon dl or destayd hae fo chege the nents tg plea rl and tr nly pelged sta! pertoers. Bt caect con role my aly worms te hrgiing power ‘of sein porypostoned ttzen and trey prevent ets omy Scag ch glean at wel es partpry Highs end co om sci fom th ch aad power Moret the nenos facing pital and erm las doo dpendexcatly on Srpaniatonl capac of tb exe Oe doce fc ace ‘hecatralystaped pois ofthe doinant ress. ne oe Snes, tt ast indepen atl pot edt el te Inurmatoa! ante th nernationel contents uu hate, 24 oer and preg plabiy dpend on py ena pecs fron tw ih andthe perl bea etong mote to eve te cies at re, inidng he pos wi some dee pot ‘lepton ipl ea, ad ecooome nse. so a‘Stephan Holmes: Lineages of Self Restraint ‘egin atthe belong, wlth he simple question: why do peple with power accept limits to thelr power? An even more pointed formulation {s why do people with uns obey people without guns? An coonomle tise: why would the veh evr voluntary part with «portion of thelr ‘wealth? Tn Toga theory the parallel question runs: why do politelans Sometimes had power oudges? Why do poltllans allow judges, who ‘ontrol nether pursenor sword, to overturn and obstruct thei ecstons Sand sometines even to send ofleaholdes to Jal? Such quesions ere too broad, not o tention to vague, to be answored with any degree ‘of finality or eomprehensiveness. But they can serve as clumsy levers {to pry loose some important insights shout th origin, development, fend setbacks of the rle of aw. ‘Seltrostrelat is usualy explained in one of two ways, People are ‘thought to estreln themselves either when thoy eo inthe grip of moral ‘orms or when they antepate the advantagos of selfrestraint Norma- tive answers focus on th inherently binding power of norms such as Taimnes) or ona somewhat inllable sense of “logtimacy” Some legal theorists suggest that poilians are cowed and slencad by te sheer professionalism of ages, by thelr porsuasive resson giving. hy their Splendid impartiality, or perhaps by thelr special intimacy wih uncrit- Isiaable higher principles. Beeause polities does not satsy th» publi’s Ihunger fr justice, the angutnent sometimes goes, pollans ere subtly ‘pressured by their eonstivens to cede some of their powers judges. “The idea that norms have an independent cause! force may be rue ov fle, but ft does aot help pinpoint conditions under whic the rule Gf law i ikely to emerge. For the sume reason, i contributes lle to Understanding why established rle-oflsw ystems sometimes expand {generously and sometimes contract tghtsedly th logal protections ‘hy offer to dssdvantaged groups. Whatever the merit of the norma- tive approach to law's binding character, itis also tru that idvduals ‘lon adapt their behavior to novel and complex rules because they an- ticipate gaining some advantage thereby True, “man is a sodable an ‘nal." People like to spend ime in each oter's company 2nd indulging natural gregeiousness, enjoy making and Leaping promises to each ther Nonetheless, people also keep thelr promises to each eter, even ‘hough this may involve cost selfrestaint, because thoy wast o mal tain their repsations as promise Keapes, an asset thts likely to prove tsful in the ature, Statesmen and eonstution makers can reason in 1 similar way. designing conmitutin, they can place the power to Py “enges of he Rae of Law ‘break treaties “beyond the lawful reach of legsative acts“? A govern- sont oparaing under eich a constintion may manage to renunes 8 sll short-term benef, such asthe chance o escape from «bad treaty rated imprudent in the past, forthe sake ofa greater lng zm hen ft, namely, the chance to win the oonfdence after states ith hon ‘aay manually useful testes may e signed in the fate, ‘The capacity o power to make promis tht one cannot eeslybresk 4s exactly thet ~ a capacty and e power. It may lok like a restriction ‘or restraint from tho viewpolnt of one's Iser sel, but that i an ine ‘eomplote perspective. promises were nota means for socal ators to ‘assert themnsolvs and pursue thelr interests, oF if ndividual and go ‘ermens acted as ifthey had no continuous ident over ine, promises ‘would have no ari, no binding power As things stand, individuals sometimes repay onerous louns, and governments sometimes ablie by ailing treaties, And they do eo, hen they do, at least partly because publi observable compliance with promises is palpably in thei long {erm interest. Though notthe whol story, stmlaly banal alelations of ‘expodiency presumably hlp explain why poltilans defer to Judges and ‘ven why people with guns abeypoople without guns. The larger impli cations ofthis theme are suggested by tne ellowing observation, From Volaire to Max Weber, continental intlectuals urged ther on ato ‘rattregimesto imitate British polticl institutions an the grounds that limited government, on the British mode, would inrease the altary power and economic wlth of their countees.Sefrestraln sa tol tnd tean be explicitly advertised and consciously embraced becase it furthers desired ends. To dive this prudential rather than moral, les fn hore, those assigned in the past o oducao the eildrn of political rulers repeatedly stress the miserable fate of wicked "syrants™ who, Fefusing > acoept limits, Were destroyed by overreaching end hubs, Lincages of Judicial Independence ‘The decision of politicians to code some of their power to judges fe _mysterLous only if we assure that power wielders are exclusively con emed to maximize power Ite start witha diferent promis, sa, that polcians want to maximize denlality as well as power, he mystery Degins to ted. For human, as opposed to divin, beings, omnipotence e unsppes- Ing a5 well a unatainable. For one thing, it would occupy’ 0 many‘Stephen Holmes evenings, (ded, It would eccupy an infinite numberof evanings, ‘whichis more than we have at our disposal.) Shedding responses, ‘dovmsizing goals to raateheapaclios is prudent step for fe most Herculean of bosses, commanders, rulers, panjandrums,chis6. Dowa- sizing one's aims wo ft one's oscurees is therefore elasicaldeintion ‘f"freedom "Ceding power over some domain is necessary inorder to ‘get ful contol of others. Monopalizing power is especially unattractive In situations swarming wit unslvable probioms. The mighty wl ypl- tally ditch responbiy for intractable lemmas on which they hesitate to squander scare time and effort to no aval. To improve the ratio of| acces at thei dsposl to labiltios on their shoulders, they pare down their duties, burdens, and charges ~ the problems for which thoy are” personally answerable ‘Similarly pedestrian consierations are relevant tothe more goneral question of the origins ofthe separation between executve and judicial ‘ower, My legal istriens interpret the gradual developmen: inde pendent coutt in England ae an evolving ison of labor whareby the “ings court slowiy cast aside aggravating and tne-consuming nurdens. [No-one ls suprised tht tnday's White House and Congress pay no at ‘wntion 1a cd eustdy caso (s long as Cban-American relations are not involved), nor does anyone ask shy politicians would “coée power ‘tn juges” in such a context Politicians cde this power beeaus> they do hot want i, and they do not watt because they have better things to to, The independence ofthe Judiciary has to be res, and not apparent ‘orely, Monteoquew adds. Ihe ruler pulls stings behind the curtains, people wil notice where ultimate decision-making power lies and the ‘Sts ofthe rales pane wil again svar with harassing crowés hop- Ingo influence upeoming decision ofthe cour. Formulated dffererls, ‘powerful people longo rode he elute in thelr in-boes. Any sousble Dolical ale vil went ta delegate the donkey work. He wil "ot off ny ‘ise thet soe, ha wil support the Independence of the jediiary. ‘That advantages of specialization payed some roe the emergence ‘and stabillation ofthe rule flaw is highly lily. More intresting tthe Insight thas the powerful are especialy enger to shod speci powers, namely those that are Hable to exe lasting hatred snd resent. To ‘xerlse power sto create winners an lsers. Winers may or may oot {bel apprelative; but Insrs almost certainly fel aggrieved. It's danger- ‘ous to Weld power because the power? re eyecatclng trgets for the vngeence of those whom thay have really or supposedly harmed. “To diminish the danger of reprisal power Wilders ypealy sak dnia, Dilty hy yong, nal aswel es appearance, some key elements of Lineages af the Rule of Law ‘decision making power To choose a rival example, when an etorre- Jects an article fri journal, he barnes his snonymous edi! hoard land clams tht is "hands are tied,” For similar feasons, the jodfary itseifay claim tbe the least dangerous brench fo avoid ousing resis ‘ance, attracting the atenton of erties, and awakening sleeping dogs In general, protests of impotence resound most loudly ust where you would expect inthe corridors of power. “Tom Seheling could explain wit. But so could Alexander Hamiton, ‘who defends the jury system on tho grounds thet ying he judge's hands Improves his position: "The tompiations to prostitution which the ude right have to surmount must cortanly be much fewer, while the eo ‘operation of «jury is necessary, than they might he i they bad them selves the exclusive determination of all causes”? Judges (and thoit families) would be exposed by thlr own unshackled povre 0 fighton- Ing treats as wel a alluring bribes, To bunt this danger the judge's verdict ean be made to hinge upon the independent decision of twelve randomly seleczod clizens, These jurors are much less vulnerabe to bribes and threats than siting judges because the former are suddenly licked out ofthe snensmous body of people and Just as abrupsy dis- persed back into the muktude: “Thera is always more time and better ‘pportunly to tamper with «standing body of magistrates than with «jury summoned forthe occasion." By binging the judge's choices on ‘the decsion of the jury th judge's powers, yes, somewhat diminished, ‘but in exchange he acleves a degree of socurty greater than what the ‘most vigilant bodyguards could provide. And a fadge' credibly and ‘hereforepuble acquiescence in his decisions ar lao enhanced by an serangement that makes bribery manifestly more dificult Aktough perennially contoversal, Mechfavell remains a subtle and provocative gulde tothe enigma of poleal support for the eutonomy ‘of law: He tres the origins ofthe separation of executive and judicial Dower to what he claims tobe an important but neglected fact of human Darcholog. Its best forth prineoto shed adit power, and oot only {ough this factor remains supremely relevant - because punished par ties wll despise thelr punisher and thst fais wil pot eel revenge ‘guinst his. The esoeric rut ostensibly explaining why pltlans we ‘me juice independence is that justice doesnot stimalate loyally oF ‘obits pottial support. Machiavelli's words, "when man receives ‘those honors and useful things thet he believes be merts, he will otStophen Hotes, acaowedg any obligation thse who oar him People eid Joarichtacheydesereltanddo nti ter benefactor ny ered te wet tenet wa. Thue power Ds sustnt e- the comtuenes (he rsontnen of he punished wou prods tng recmpente, any poste eonseaunacs (no loaf these {tar eed fn). ence he see rics wil fre powers Sha are snd such a punishment and tain ptr et eg Ser guts es the power pardon: “Prince mst make oh rs sespostle for imposing burda we banding ow gracus ge {enelves" Loyalty and pte! spport are ext by es that ce donred and even unhepetso oot by nets hat repints fily tmotundereore enpet en ble tb teed. Toe fr sbelng Fer ase consunac, wil crete = gens automo ul ob wine actos te pote! branes recive nelter aed or ames cours wlepecitina in pnihing maaactors an espns: Inge wl be iw pice, el eta fo hse te dscetonary overt iso pardon snd ener oo stabi ones, which Provubiys rtuetn.and secre poles spport rom. lucky Rrnotcicien Lineages of Rib ‘According to Adam Prusworei (Chaps 5 fo thi wom te pi nary ecko sb behavior ob perils far ofrevl Uses they ‘remade t quake in st boos, ove who cane! the means of ‘esson wl over bebe with dent moderation. Mochleali mad the sare pln wen be explained ta he pine rake os toe thy and entrevagance ef pances it Chasan moclty bute fet tf esasinaton The fundamental ison of he Prive, nis that {revionl rl wil aly bereft is people, keep them cortent, and Felon such away thatthe aren tong movado sit his thro oman sor). ase rcostrace (in ho Disoures, suggests fet onottuiona festa oa power desaped when the prviged fo ick’ atte prorat of deal then Has. ey thece concer tons we col a that a portant bck on the xtavagance and Insacane of tc a thy relation tat even {he poret can ge tt hans on nine asain a ae ‘clon anon ben exten vrson of easy Behave hen “ineages af the Ral of ta tharm the interests of the rich and powerfa Te privileged hey think ‘head (hich they do not necessarily do), naturally wish to avoid a dan- igetous backlash by “the best with many heuds”” But fear ofs backlash |San acknowledgment of power. To say thatthe weak and poor can ex ‘eect concessions trom the rich sad powerfl by threatening atkon oF revolt is to confoss thatthe rieh and powerful are ‘not the only ones ‘who wield power. The weak comply with the lw because they must, Whereas th powerful comply with th Ie only when it serves tit ‘purposes, Tis i rue, but strong-weak Is a continuous not edicheto- ‘ous vaeable A organized imerests are weak ta some extant. None dha God-ke power This is exacly Machiavli's point. The power will ‘cade power only to rival powerful ores, including the uncooperative orinsurrecdonary “street Siar reasoning lay behind Montesquiews famous iain, alcimportantto the Americen Framers, hat reedom ean bo sustained only where "powor arrests power" The credible threat of olen retaliation, asin assassination or revolt, {sot the sole source of power. Amore important souroe of power ithe tredibe thret to withdraw urgently needed cooperation, The theet to ‘withdraw cooperation, in fact, provides a more enduring matlvtin for ‘hereqularization of governmental power than the treat ones phys seal harm noted by Macblavolll end stressed by Preeworsls, The prince ‘who conesdes benefits to diflse an ongoing revolt may withdraw these ‘concessions as soon asthe rebels have hoon disarmed; he will Keep lis word only so long as it is useful. The prince whe eancedes bene fis to maintain the loyalty of his troops, by contrast, wil be unable to withdraw his generous concesions so long as he has enemies ebron. Moreover, no one will b duped bythe poullstgestares ofa ruler wino ‘ffs a sop to citizens just when they are threatening to rove. By con- teat a ruler who provides bones o past, presen, and future solders ‘ill be easly understood 1 be acting for & clear purpose that he gen: ‘nly shaces with his community. namely defense againet conquest by Ioraigners. Fear of volentrebollon, moreover gives the ruler astrong motvaion| 1 maintain his subject population ink state of paralysis, resignation, locity. To guard eguinst insurrection, he may choo to deploy divide. land-rulestratgies and to govera by fveng his subject to ven uncer ‘ning The rst order ofbsinoss of ule who fers bodily arm for his own subjects isto keop thom apprehensive, disorganized, geovel- Ing, quarreling, unedocaed, and incspable of resistance He woul not‘Stephen tlmes cessriy approhenany great benefit in rang am he feed 0 tsuocite, cooperate, and communicate emong temsles. Four of lene om below therefore, dos no expan why aru who conto ‘hemeens ofreresion wold vlan scoptteguarzing rest onhisow power Qute th contrary AcoringtoNaclavelly principal eon why peopl wit power voluntary are to rener ter own bev preicbl is at even Timo: poneripeopleneed ooperstin toatl ter nds aa ‘nth great onions tenses and rites his czns, be (breaking Mistols, Tose thar people pay tek debi esse ty want remaln ttl fr ftre fans eo sy tht Tey sumat ebuantson their turret rood of hice fer the sie of eooperaion now aed inthe fue Thecamelogicaplo opie can atin is obe- thes under some condos ony ihe dsbutes rights and sources diwnwards ina vay bet cielated to coneate the contdere ate ie Pru under what condone hs Welt ecu? The ih and pow cof arson shed inthe priges by enllocve acon problens {iting the poor andthe wk, Uncordnatd actions ft; and joint fein is effet to orgeiz, Indes he prfloged can sucxstaly Shore to exacerbate the elctivesedon problems ofthe Asadvan- tape, ox proven their leviaton, by various strategies of dvd and fall. But even when the poor andthe weak have negli capac. ty forcolltie ston, the ch and he powecl may be ‘empl 1S sorendr some die of weit, ep the or. Fven ‘when owersiasrbuons have chanee of screding or stance, They can gives big eadache 1 rug groups, who may throne do- {20 ht ssn brad ond close a feet way To preempt tay ban order “i xan of poll loverago~mesning a capcty wera ben- efi) oncesions wiht ty expec far eonrlnted ation con {aeous lense, Aku th ky fw generally hae the best docs ‘Dat money can bu. tiny exon protest tases etsy om fonagios disease tht feat fe poor nihborions. Ase res tay may wig invest In publ eats programs elmed atreduing {helnellonn thse oo nese aginst hie ey coos itil ncn tevles. Frama eson, Pincha Bish coll armies peat money nocaing cl populavons. They di is Sotto a genous pst o eompesson and chery but stetgcaly * entra Paper 10 } | j | ‘Lneages of tho Rule of Law to proteet Europe oop. ich eds ar a ‘but prudential, ” ena Sicha sla acai i oboly gross sinpengon of hi tcl complex proces Bit acleveif resetatn of base logican avert bp fas on erie neglected nots at tnt ly sginn lI lg ehngeRetcd o andamenta achive eiihe owing. Faced wih tg nemo tee {dhe power haven ct to arm vn eens bac ‘hn adtersty ste, very plist ads prtsen end Darton a” Becae reg tercoares cbt) a. tare any moment, «pre ae wil ey sly ap dente ‘tops, who hee «persone! skein protecting fhe homeland. Once nin ast have am, howeve he hed tho power an so ne ae ay yh oper tals mo ‘esta theses fom sing the worn and tng on et potential erate, Tey as bave sa new ngeeln tense Aemocratation, hat to gram etea-strs sone ifuene eer pola cision making aswel x sees tll forums where tat ‘vans can be bean and emediog “Hon wives ali. cy hey ae comple ob foot Palisa ruler in parse, bnuw moral on on hey fe fred. Tho “crs that foros clr oe goa, ower 1s the powpect elon thant eed, gen elo ot suc noperatn. The ecipa source oft pol lverage ofthe eorandths wen: lowing hs nap ste citence ef lst fo tign predators ed lend grabbers Uttmat, ha power and eegen ft sce pall and sono eltedoond on ta soy es {oss hold upon apse ofrel exe sted na pers nero! fovrnmet. tan ars Save laverage tht, Bets oy «3 cl trent ef og rit ese) tho Of ania Th ta reel than th treat of hers ter wok own ay wad hoe nA tata les ots ight canntbe eal dated ye prspetot Frnshentancan to nets eis esasnon wh od {ven nsurecton Tha high naa tral esetal an ve Shing te cuaet bated yr ofbare ens tne over ‘Ret arms oles who dot el ay pred salinthe Stem, ‘he ors ey snp ol ter weapons toe enemy and sere Stabe‘Stopher Holmes: [Aruler who needs to raise ¢ctaen army eaaot keep his subjets apprehensive, isorgenized, demoralized, mutalydistrustul passive, ‘hd incapabl of collective resistance. So what is he to do! To se- ture the voluntary cooperation of ordinary tizonsin war, according 10 ‘Mochiavel.a shrew ruler wil provide the poor and the week wih flr logal procedures, democratiepatepation, and propery rights. This 8 hot uoplan aspiration, but historially observable pater, Political Fults, In special circumstance, heve made ther own behavior pre- fltae for what they pereived to be thle ova benef. That foreign ‘heat changes the incenivasco the ees suggested by meny Historical fxamples, such a: ln time of war the landholding class acepted a fakiysteop fax on is property, even though it was the most nena) pollical group inthe eourtey” (Swreyer 1970: 108). That war between [nas armies hoosts the overage oflessafiuet aad ess pressigous it {ens alo suggested bythe obserttion tet during World Wer I and Geopite « ban on strikes, American unlons organized and grew much faster than they had through pnt sit-ins and mass picketicg n the late 1930s, Final, the cena role of veterans benefits inthe original temergonce of both property rights and tho welfare ste sus that ‘ranfer programs, op, re rooted i this urform ofthe socal ntact, ‘namely the exchange of combat servic for legal protecion and op- portuesfor"vole”Ifthls Machiavellian explanation holds up then edistributve polis represents stratgic gamble by policalandeeo- pomnic eles trying tonal down today the popular cooperation they wil zed tomoreow wher foreign armies are on the march, ‘According to Mackiavell,cizens wil exert themselves ony i thoy havea reasonable chance ofegpturing some benefis frm suchexertn. *Hiches multipiy and abound,” he argues, when property rights become toutes "For everybody Is eager to aoguse such things and to obtain propery. provided thet he be convinced tht he wil enjoy twien thas Fen acquired." By contrast, ennomie growin wil be thwrted by tn unpreticiable ruler who selaes assets without reason or notice and ‘without providing any mechanisms for legal redress, Ciizans become ltuached to 2 rleotaw rapime not only because It alows them to tcoumulete asso but alo, more general becauso It makes i possible for them to predict the consequenens oftheir actions, to pursue remedy ‘whes weonged, snd generally t plan thelr es, “Thoruleoflaw wil e established and maintained when poitcal and ‘ooomie elites understand the vial eonteibuion tt makes to national ‘Lineages ofthe Rule of Law security. That is the crux of Machiavelli's analysis, The security of ac: ‘quisons and transactions, when combined with piel eiizenshp, contributes enormously to a republic's mlltary strength TAI towns and all countries that are Jn all espects fro, prot by this Ureodom) enormously: For, wherever increasing popetons are found, tis deo the feodom with which marriages outectd a {oils being moro desired hy men, And this oomes about were every ‘man sea to have children, since ho belies that he can rea tern and fel sur thats patimany wil not be akan aay ad nce be [eps that not only wl hy e bora fr instead ef int slavery, but ‘haf thoy have virtue, they wiheve hance of basing rales ™ Justa a dvading population I amity Unity. oa srging op- Maton, forged and raze comet can bow milly se ules invode freer i irre cn oi vere tera oy tn ard to ners he spp of ete akeelrs tomorrow. Caen ‘al predic ore cites, tae sllr) they ar convinced that ther hreiry property ahs ae soir and tht i en willerter stem of poll promotion oon lens nondlg sana, Macleval al tots foes power is tue end and open migration poly Because “costae” wel omedfrlger bo laodoced unknown prouc tad new ars Fe soon “ticked with inabste™ Tle cholefor an open temmony aod an open demegraphy, highly dipeang fo ats fd secopbabe, aw had sgt aly Gnsoyues Spt, ‘heh cov fei oft ade aang, cou bray nat 20.000 sar, wl Rome eo ssp 280,00 in the fl Sone peopl wero undo y Homestay lots on ‘arted woth nse dro Sparta but th pron was ae Sci of tango popes tt oe sing ma Unpedebl ret shold be sd, ha nan glenn ade tages: Above al alee whos behavior is eat an unpedetale ‘Will keep his enemies off balance, On the other hand, under certatn con- Akon, unproitablem ean bo selling. Tht i achieves Pole Ahyperler rine who rae wih nfo constanty inhib and ‘ho pals when aezen pees nin the set, who cannot un 1s beckon hs ows Bodyguas,wil oon be phykalyexhussd bE‘Stephen Hotes ‘rapacious ruler who caanot restrain himself from making off wit the ‘women ad plundering the property of his subjects wil be surrounded by conspiring enemies. An having offered noting to ordinary citizens, he wl find it very dificult to ral an ofetve and loyal army. tyrant Keeps his subjects poo, uneducatod, and helpless so thatthe cannot cause him any touhle or thwart his wil, But by crushing potential Sourdes of poles resistance, ho also myoplcally deprives himself of potetll sources of poles suppor. fctzens are granted some mea~ Sure of fred, by contrast, they wll sist forelgn conquorors with ive ferocity. I ordinary people are instead consigned to passvity and Subordination (i eivee sero) hay wil yell platly v9 foregn con- ‘querors who, upon eval, wil gladly take the rulers ie By exendng to previowsy disenfranchised groups the power tclect polleal representatives, a ruling elite can purchase the coperation ‘Cordiney citzens, That is how Machiavell explains Rome's remark: ‘ble success n expansion and annexation: th city expelled its ughty princes end grented property eights and political influence tthe ple- Dekans. Citizens wl ght for «community in which they posses papa bn stae, Jumping aross the centuries, we discover similar anguent ‘ade in similar words by Max Weber In ano of the few passags where he drops is usual insistence on the gulf between morally anc pois. Wiber (1994) thundered agains the attempt by German landowners to withhold full voting rights from demobilized German solders who ought in te Great War to defond, among oter things, the property of therich, To those being asked tra their ve to protect the hemoland, ‘and therefore alo the private rights ofits richest inhabitants the gov ‘ernment cannot moral or sfely deny basic betes. And inet when poor citizens fight for their country, they oftln demand and reeive the ght to vote "Ths rises the quosion of why poor clans are not everywhere and always granted democratic Mbertes, legal acces, and economle ‘Suppers. Machiavelli didnot belive that history was frosorale. His theory of defensive demceratization bes no predltive value, therefore. "The mechanism It deseriber depends on a number of variables that fppear of do not appear for unknown reasons. By fa the most im portant of these variables ie the motvston of “the ruler” who may be Secking glory or not, may bo interested in fuure genoratirs or not ‘ay be looking fora to pesesfl retirement ot not, and so forth Machiavell's theory does not, a would be absurd, predict untersal tendency towerd liberal demoevacy- It says instead, tbat under certain soiled conditions (ns when eulrs fel threstonod by a neighboring inoages ofthe Ral of Law county's ary) tberalization and democratization ar likly to oecur ‘wheres under contrary condition (such asthe ree of pushbutton war fare wit a diminished role for eiteen armas) de-democratization and ‘retrenchment of ei ibertes are muuch more likey ‘The Lawful Management of Conflict Hunan bogs, according io Machavel, wh atl enjoying each ethers company. oe alo autiraly yop soit nes tl plteta wsalytnpte st tor dst she“ prea hey wil nevtaby work cree popes fia iacoberenes stl dip tatovro nd mia prc Goer owt as woud ned sto expec ty nay ages ate esl onthe god eg th dei fen een butte lb use ‘eneraa case thy hove dierent eset'thoigh” Tse Cate a6 Maciel xin, pop hs tng eta such otter he wrong vay aot vil ta ats om ae) Ghaiog usualy aso wth we aod by or asl be ‘bess coteing es of wha satan wht oun. Seltetng pats fir re mrs Bi feos thy reset or eng cba olla en eft gee tre exnnbed bythe ents a conlcngraraen af tee aso wi cs one Anger cn Benne epoca sls in ecates where cls ion run deep, for teeny of pone 1s regulary elamed yt nnance of en, Wh, sci chavez edo capable of resisting the tpn hue tte abla hl socal nore Rts sould ant tobe red ot Inte. If tay wore atonal tee thy would aol alot thoy wore aon tay ld an ead repress meets hie tre more ely nde ted ona ea Beng ls tan erty ot Consent rao! ey ten ssc tthe puoie plates of si, fe prt bce yaa tore tartan ae Th ato lows ons rte gh Durie no tbl aggnoved minds, By cones appebnis otter alton tet might rca te red om onli ‘hack Kinds oly radu or Macha, ow the fw scl contents n whic hse sl detatng pss can sometines be rough under enol ae Be. tus thy to, need und genera th poo an weak has fo ‘aon ine of war top ae tat oa peace ya Sheich an pera Sry te and power nnd ney‘Stephen Holmes ‘in wartime and will therfore, if raled by season, cur thle habitual {ngolenos toward the por and tbe weak. Iftelonal, bot ies wil mod tate thle nasty impulses fr heir common go08, bat ofcourse they do fot elivaysor even usualy behave ratonally-Th poltcal and economic tite sno more likely toe ruled by reasoo tan tho mulstude. The po- ‘Sonos interaction of nsolence and en, whieh according to Mechlavelli Is the key tthe selfdestructve class poles of te ancient ely, poses fn ecute challenge to nsttttonal design. Whatinstttlons anmigate the sefweakening lise confi thst manlestly exposes the whole city In foreign conquest? Mactlavel’s answer isthe rule of law ‘To defond agains external trea, prescient politcal rulers will er- ft, tain, and finance miltary establishment. To defond agains in {ecnal eos (whlch are militarily Weakening), hey will erate, rin. fn finarieo a lla estabishment. Ths at leas is how Meciavel ‘xpleins the origin ofthe eriminal justice spstom n both ancient Rome {tod the alin republics, Constittion makers introduced fartrials be: ‘uso they undersood them t bean indispansabe too of goeernance, that isto ay, powerful mechanism for dampening the exotionally ‘charged class antagonisins that expose a republic o foreign conquest. Mutual distrust and animosity among ekzons can never 2e eradt catod. But they can be domestcstod by tho skdifl design cf jue) Institutions. Rather than allostng such so-defeating pessions wo fester ‘outside the system, constution makers channel them inside standing {overnmental bodies. Machiavell s thinking speifeally of pubic t= als witere ordinary evens, fling injured, can openly lodge aceusa- tions agaist members ofthe elke Who heve purportedly injured them "Wihen these humors do-not have an outlet by which they may be ‘ented ordinrly they bave recourse to extraordinary modes hat hing ‘Tivo republi to ruin’ By inviting the poltealydestablizing de- ‘Siro avenge perceived wrongs to ven iselfinside te system forum for publi aecsstions reduees the poisonous influence of ezonymous denuncions and the demand for backstest ambushes. I ean eulerize class resentment end the desc for vengeance bore th spieal out of contro "Theich and possrfl wll be sorely tempted to claim immunity from such proseeuions. But this would be e fas] mistake, desailiing for {he polty and personaly endangering its poieal and econemic elite ‘The leh and powerful must renounce immunity in the shert run to tstabish an effesve method for managing eass tensions isthe long ina of the Reo aw run. That they con do so, Roman history strongly suggests. A poltialy snd ooonomicaly dominant group has a power incentive to expose ‘self in this way Fr o give the desire ofthe many for revenge against ‘he few «puble platforms also wo impose upon suck class resentments consequential discipline, Ulke the disseminator of venomous rumors Dobind the backs of te siandered ortho organizor of private ambush, the public accuser has to appear personally, face his enemy. and prove his ease tothe satifaton of third partes He must give the accused & ‘hunco to rebut unfavorable tastimony and dispute fabricated evidence ‘Tho rule of law, inthis sens, emerges a8 & Wo-odged sword, a= & Joins ool ofboth the many end she fo, and therefore #8 & mens for ‘Gvancing the ys general good. A society thet manages, ia this way 10 ‘anne! internal hatreds insde publi insttions will be more eabesive tn the tao of external fos. To achieve the social cohesion necessry for war, Machavel asserts the oie must renounce is immunity and expose itself toga challenges, This i how power poles ifthe ete 4s sufelently prudent, can ineubate the ral of law. ‘The Systole and Diastoe of Justice Pare democracy Is the Ideal end point on a spectrum wher alo {archca elements vanish, This opin condition, or regulative eal, never fly relizad in practice, Unik ideal democracy, partial andro ‘vetsble democratization exstsand canbe studied, times a widening ofthe cree of consuation, an enlarging ofthe numberof participants ‘Who wield infuence over the making, interpreting, and applying of laws. hon government by froewheoling debetn fist arises, is neturlly« race reserved to afew privloged Insiders. Subsequently end gred- ‘aly it becomes more inclusive. Thosa with special acess natal szaft laws tha favor thomsolvas. As time goes by, voice opportunites,” land the chanot to inluoneo the shape of law, are either extractod by ‘or voluntarily granted to previously disenfranchisod groups. Asthe par ‘iipatory circle widens, laws begin to rollct broader scial concerns. ‘But why have certain politcal systems ates bocome moderately or ‘ven radicaly mote inlusve? According to Machiavell, democrats ton occurs when the in need the caopertion ofthe outs and there {ore tet thorn come (party) in, The eel ean also be run backwards Devdemocratization occurs when, for whatever reason, the ide of ‘consultation eonstiets, Ifthe seh end the powerful suddenly come to bolo that they no longer require the cooperation ofthe weak and ‘he poor (because, sey high-tech weeponry reduces the ult of mess ; ae‘Stephen Homes armies) they may conaive to disenfranchise ordinary citizens ara east to reduce ther influence over logsaton and especialy over th dst- Duton of wealth Human beings aro not motivated by material incentives aloo, They are also motivated, for example, by faress. As anyone who has tun an ofie knows, unfar treatment of co-workers destroys morale and thorefore undermines efficiency. Hence, a boss who alms at maximiz- ing productivity has a good reason to toat his workers fan, Because the same logic applies to politcal organizations, Including ses, we ‘may question Machiavel's claim tat Justicn never generates polical loyal, But, whatever he says about justice, Machavell never doubis that justice courts subversion and resistance. And he ast argue, ult expt, that perceived equity in the tax code is postely oor ‘elated with effietent tx collection. * The observation that people will ‘stand patiently in tine go long as they detect no presumptiodsiatecom- fers unfarlyvauling shead suggests the value of equal teatnent for the smooth tunetioning of socal organizations. Bus none of this implies ‘that fairness wil eutomatialy be forthcoming. Machiaveli's analysis suggests only tht polteal ete wil teat fay those grougs whose ‘cooperation i thinks it need, “Selstve Inparteliy” sounds like an ‘oxymoron; but this sth prinelple upon which, flowing his analysis, al political organizations are based. presumably including ‘retrial Democracy waxes and wanes, The determining factor is the per ceived naed ofthe political elt for cooperation Srom larger or smaller numbers of ordinary ctizns. Macbiavell would went the emphasis hore to fall on “peresived." A political olite may think it nosis coop tration from ordinary citizens othen ft doesnot, akhough this fs not ‘very ily [t's mach more common for the ech and powerful tobe do- Jd into believing that they will never need the voluntary cooperation ‘ofthe poor and tho weak. Such myopia canbe fal, as progressives love to poit out Butt ean also happen that the rch andthe power realy 4o not nee a great deal of active cooperation from ordinary cizeas and know i ‘The assumption that inustioe is elias politely destabilizing ts coqulvalent to the plous belie that evildoers are autematilly pon ‘shed. Ast turns ou, the maintonanes of injustice may actualy e lest estabilng politely than a wel-ineaaing atempto alleviate the mis eres ofthe Worst off, who may ratchet up thee demands unreasonably “Uneages of he Ras of Law ‘thelr conditions abruptly improve, Unjust distributions of power and Drvlage do not necssary trigger healthy process of readjstinent fora simple reason. While a polical sstom tay seem unfasYo most people, mos people do not necessary coun, And those wi decldedly bo count, the country’s elite often havea iuratve sake ia maintaining fureat injustices. Poverty and injustice ean he stablized, i losers are ‘kept disorganized und sedated into passivisy,represive organs are well, nourished, spoils aro distabutedintamuraly, and potential eaters of ‘opposition to the current dispensation are erushed or co-opted es they arse, Thorefra, liberal democracy is fa fom being the preordined destiny of mankind. Under certain circumstances, nevertheless, it ean ‘emerge and become fairly stable. In teyng to axpain why and when, Machiavll stresses the importance of foreign treats, Butother fears ‘may conedvably produc simi eects, ‘The Sweetness of Self-Infleted Wounds Parent comers soe ema aterm Stiperetaneny hace cor ci pees an ae te Seton selaeranaticaset at intinmetoaehieanmanegtnt ES con eahamaneneanenen sori re et ger Scour eueiaie mares = ‘To elicit the voluntary compliance from citizens that he plainly wt em ems nc Seals eee on ee ee mre ee oar oan cocci mmei feceergemerine ‘sco iou enn a meta eevee veoh comer inter ce ene ee st Teutlceedearsary rte eh ats L.‘Stephen Holmes bservebly obeys its on rules, the i to Say, oelalsthenselves pay taxes, goo jell for crimes, and so forth, and also cleave broadly to the ‘onstiion. Final stakes diference ithe public believes that alos tte balng enforced fairly, so the privileged groups with special access ‘re not allowed to exempt themselves egregiously from lawsthat should apply tal In Rousseau's famous definition: "(O}bedence toa law ons prosribes to oneselfs freedom." Machiavell makes the same peta, ornuating {as en observation about the perversity of human psycho} Impor tant actors wil end i accept decision if they had a hand in making | Tonereasothe Hklihood that he eonsuls wuld acopt the authoriy ofthe dictator, the Roman “eansttuion” gave tho eonsusthe right to ‘choot he dilator The atlonae behind tis assignment oft appoat rmentpower to important Individuals, according Machlavell, was thet wounds and every other that amin does to himself spontaneotsly and hy choice hurt much less chan thor that are done to yuu by some fe ele” Hamakon makes the same point in a more fuller way: "Men often oppose «thing moraly because they bave had oo agency i. planning. By extrapolating on this pungent reasoning. we discover 5 possible reason why, under certain condions, rulers withthe moans ‘frepresson in their hands might voluntarily embrace an extension of the suage. Poltical als themselves ar unlkely to ask, Why do poitical rulers submit themselves oconstitional estralots? Howover, hey cou ask ‘another question, namely, Why do ctzens sometimes fray agre to ‘comply withthe law? If ett comply voluntarily with aw when i te intheir perceived selPintoret to do so, then the prudent rule, who ‘wants to bsbend his resources, wil ty to make obedionceto law seem tobe, iPnot oben the self inteest of etzons. But, es Torquovl 0} lows Machiavell fn arguing, this fs note complete accountof the most ‘common rationale for een compliance wits law. Peope also comply ‘rth the lve fer paychologeally more subse reasons, most notably be- ‘cause they are given a voice i the law-making procoss.! Just as 0 fone will attack the instituon of private propery If he owns property himself, so the les fortanate members of society canbe inucnd to re= spect authority hy boing glven# small poco of authority. Fuos agreed «Mi Sacro ae "Goce Boy Amen 99-2401, 258,220 uneags ofthe Rue of Law upon through consultations between repultors and regulated tend to ‘work eter han rules imposed by uniateral dist Such rulesare beter adapted to "reality on the ground” and are moze likly to ele cooper. ‘on from groundings a the stage of implementation, Even when laws thwart pevate interests, a degree of compliance can sometimes be obtained simply by « generous expansion of the sufoge, by granting all groups a "vooe” inthe legislative assembly This is the democrat mative for compliance stressed by Tocqueville. Parenial pride can to some extent replace selfnterest ass motivation {or adapting one's behavior to previously unknown, comple, and bur Aonsome rogulstions. In Amerie, Tocqueville cane to discover that ‘tizens wore emotionally attached to their goverment because they took part in it and that they obeyed their las because they parte pated in creating them. More soberly, he adds tat people who par ‘ieipato, even Inde, n making laws (nd im applying laws directly as juros) ore more kely o know what the laws actly say" Ac tive poltcal participation also makes it more tikely that etizens wll ‘understand the base rationale behind new laws, Such an understand> Ing sigoiiantly increases the kelhood of complinee. Final. per ‘lpants Inthe law-making process may comply, oven if their iner- sts are momentarily ignored, bacaus they knov Wt they wil ave & ‘chance to change the law inthe future. They submit wo the lv tay Deeause they belive they could change it tomorrow It is easier to tolerate a nulsenceifone expnet tat ith enough effort it could be removed. Analogously, ordinary people defer to the authority of public fica beause they know they cold os thm fom fern the net osion ‘Sequencing Rights ‘The rich and the poworil offen noed the cooperation of the poor ‘and the wes, ut not always to the same degre. A rule’ setegle choice of means depends on, among othr thing, his changing betes, ‘commitments, and goals. To the extn that a poiel ruler has e cea {rasp of his siuaton, he will support extending private and politic! Fights to ordinary citizens when he expects to need ther cooperation not