The Catholic church"s declaration of independence from political authority came in the late eleventh century, led by a monk named Hildebrand who later became Pope Gregory VII from 1073 to 1085.4 Hildebrand"s group within the papal party, which included Peter Damiani, Cardinal Humbert, and Pope Paschal II, argued that popes should exercise legal supremacy over all Christians, including all political authorities, and that the pope had the right to depose the emperor. He a.s.serted that the church, and not lay authorities, was the only inst.i.tution that could appoint bishops. This came against the background of the machinations of the Holy Roman Emperor Henry III, who upon his arrival in Rome for his coronation had three rival popes deposed in favor of a candidate of his own choosing. Hildebrand"s group within the papal party, which included Peter Damiani, Cardinal Humbert, and Pope Paschal II, argued that popes should exercise legal supremacy over all Christians, including all political authorities, and that the pope had the right to depose the emperor. He a.s.serted that the church, and not lay authorities, was the only inst.i.tution that could appoint bishops. This came against the background of the machinations of the Holy Roman Emperor Henry III, who upon his arrival in Rome for his coronation had three rival popes deposed in favor of a candidate of his own choosing.5 But in Hildebrand"s view, the church could not become independent of political authority unless it reformed itself, and the most important reform was to restrict the ability of priests and bishops to marry and have children. He attacked the common practices of simony and nicolaism, by which church offices were bought and sold, and could be turned into heritable property.6 Hildebrand"s party unleashed a pamphlet war urging Christians not to take sacraments from married priests or priests living in concubinage, and attacked the practice of taking money in return for ecclesiastical appointments. Hildebrand"s party unleashed a pamphlet war urging Christians not to take sacraments from married priests or priests living in concubinage, and attacked the practice of taking money in return for ecclesiastical appointments.7 As Gregory VII, he made celibacy of the priesthood official church doctrine and forced already married priests to choose between their duties to the church and their duties to their families. This challenged the entrenched practices of the priesthood and led to an enormous and often violent struggle within the church itself. Pope Gregory"s goal was to end corruption and rent seeking within the church by attacking the very source of patrimonialism, the ability of bishops and priests to have children. He was driven by the same logic that led the Chinese and Byzantines to rely on eunuchs, or the Ottomans to capture military slaves and tear them from their families: if given the choice between loyalty to the state and to one"s family, most people are driven biologically to the latter. The most direct way to reduce corruption was therefore to forbid officials to have families in the first place. As Gregory VII, he made celibacy of the priesthood official church doctrine and forced already married priests to choose between their duties to the church and their duties to their families. This challenged the entrenched practices of the priesthood and led to an enormous and often violent struggle within the church itself. Pope Gregory"s goal was to end corruption and rent seeking within the church by attacking the very source of patrimonialism, the ability of bishops and priests to have children. He was driven by the same logic that led the Chinese and Byzantines to rely on eunuchs, or the Ottomans to capture military slaves and tear them from their families: if given the choice between loyalty to the state and to one"s family, most people are driven biologically to the latter. The most direct way to reduce corruption was therefore to forbid officials to have families in the first place.
This reform was naturally opposed by the existing bishops, and Pope Gregory understood that he could not win this battle unless he and not the emperor had the right to appoint them. In a papal manifesto in 1075, he withdrew from the king the right of deposing bishops and of lay invest.i.ture. Holy Roman Emperor Henry IV responded by attempting to oust Gregory from the Apostolic See with the words "Descend, descend, thou ever accursed," to which Gregory responded in turn by excommunicating the emperor.8 Many of the German princes, as well as a number of bishops, supported the pope and forced Henry in 1077 to come to Gregory"s residence at Canossa. He waited for three days to present himself barefoot in the snow to receive the pope"s absolution. Many of the German princes, as well as a number of bishops, supported the pope and forced Henry in 1077 to come to Gregory"s residence at Canossa. He waited for three days to present himself barefoot in the snow to receive the pope"s absolution.
Certain historical events are catalyzed by individuals and cannot be explained without reference to their particular moral qualities. The invest.i.ture conflict was one such moment. Gregory had a t.i.tanic and inflexible will, and was once addressed by one of his a.s.sociates in the papal party as "my holy Satan." Like Martin Luther four centuries later, he had a grand vision for a reformed church and its role in society. He could not be intimidated and was willing to see the conflict with the emperor escalate into outright war.
But this historic conflict cannot be explained simply as a matter of individual will. A critical background condition facilitating the emergence of the Catholic church as an autonomous political actor was the general political weakness throughout Europe. The Eastern church in Byzantium, and its Russian Orthodox successor, had no choice but to remain under the tutelage of the empires in whose seat they were headquartered. The Western church, by contrast, was situated in the politically fragmented Italian peninsula. The closest states were the equally fragmented German ones to the north, whose unity under the Holy Roman Empire was no more than nominal. France was scarcely more unified in the eleventh century and incapable, at this juncture, of intervening decisively in papal politics. So while the church did not possess military forces of its own in this period, it could easily play off the rivalries of the surrounding polities.
Although Henry accepted the authority of the pope at Canossa, he did not concede the pope"s right to appoint bishops and continued to reject Gregory"s demands. Henry went on to occupy Rome, deposing Gregory and making his own candidate, Clement III, an antipope. Gregory called on the Norman kings of southern Italy for help; they availed him, but at the cost of sacking Rome and turning its population against them. Gregory was forced to retreat with his Norman allies to the south, where he died in Salerno in 1085, a defeated man. The conflict over the right of invest.i.ture continued for more than another generation, with Gregory"s successors excommunicating Henry IV again, as well as his son Henry V, and the emperor deposing popes and setting up imperial candidates as antipopes. The matter was finally settled in 1122 by the Concordat of Worms, in which the emperor largely gave up the right of invest.i.ture, while the church recognized the emperor"s authority in a range of temporal matters.
The invest.i.ture controversy was hugely important to subsequent European development in several respects. In the first place, it allowed the Catholic church to evolve into a modern, hierarchical, bureaucratic, and law-governed inst.i.tution that, as the legal historian Harold Berman has argued, became the model for later secular state builders. One of Samuel Huntington"s criteria for inst.i.tutional development is autonomy, and no organization can be autonomous if it does not have control over the appointment of its own officials. This is why the controversy over invest.i.ture was so central. After the Concordat of Worms, the pope through the church hierarchy became, for the time being, its undisputed chief executive officer, who with the advice of the College of Cardinals could hire and fire bishops as he pleased.
The church cleaned up its own act. The celibacy of the priesthood removed the temptations of the patrimonial awarding of lucrative benefices to kinsmen and descendants, and set a new moral tone with regard to the sale of church offices. The church could also collect its own taxes in the form of the t.i.the, and with the disentangling of the priesthood from local clan politics it was better able to dispose of its own fiscal resources. The church took on many of the characteristics of a true state, marshaling at times its own military forces and claiming direct jurisdiction over a defined (if small) territory.
The church"s involvement in temporal affairs did not end, of course, with the invest.i.ture conflict. Secular rulers continued to try to manipulate the papacy and establish their own candidates, like the Avignon popes of the fourteenth century. Over time new abuses arose that would eventually pave the way for the Protestant Reformation. But the Catholic church had become far more highly inst.i.tutionalized in terms of its adaptability, complexity, autonomy, and coherence than the religious establishments of any of the other world religions.
The second important consequence of the invest.i.ture conflict was to clearly separate the domains of the spiritual and temporal, and thus to pave the way for the modern secular state. This separation, as noted earlier, was only latently present in Christianity. The Concordat of Worms conclusively ended the caesaropapist period in the history of the Western church, in a manner that never occurred in either the Eastern church or the Muslim lands.
The Gregorian reform sought to reduce the authority of political rulers by claiming universal authority over all matters spiritual and temporal, including the right to depose kings and emperors. The Christian pope was claiming, in effect, the same authority that Brahmins in India exercised from the beginning. In practice, however, the church at the end of a long political and military struggle was forced to compromise. By carving out a clearly defined spiritual domain over which the church was to exercise unquestioned control, it conceded the right of temporal rulers to exercise power in their own separate sphere. This division of labor established the grounds for the subsequent rise of the secular state.9 Finally, the invest.i.ture conflict had great consequences for the development of both law and the rule of law in Europe. The first came about through the church"s efforts to legitimate itself by formulating a systematic canon law, the second through the creation of a separate, well-inst.i.tutionalized domain of spiritual authority.
THE REAPPEARANCE OF ROMAN LAW.
In their conflict with the emperor, Gregory and his successors did not have armies of their own to deploy and sought instead to bolster their power through appeals to legitimacy. The papal party initiated a search for sources of law to bolster its case for the universal jurisdiction of the church. One of the consequences of this search was the rediscovery of the Justinian Code, the Corpus Iuris Civilis Corpus Iuris Civilis, in a library in northern Italy at the end of the eleventh century.10 To this day, the Justinian Code remains the basis for the civil law tradition that is practiced throughout continental Europe and in other countries colonized by or influenced by countries there, from Argentina to j.a.pan. Many basic legal concepts, like the distinction between civil and criminal law, and between public and private law, have their origins in it. To this day, the Justinian Code remains the basis for the civil law tradition that is practiced throughout continental Europe and in other countries colonized by or influenced by countries there, from Argentina to j.a.pan. Many basic legal concepts, like the distinction between civil and criminal law, and between public and private law, have their origins in it.
The Justinian Code was a highly sophisticated compilation of Roman law produced in Constantinople under the emperor Justinian at the beginning of the sixth century.11 The newly recovered text consisted of four parts: the Digest, the Inst.i.tutes, the Code, and the Novella, of which the Digest was by far the most important, covering issues like personal status, torts, unjust enrichment, contracts, and remedies. The Digest was a compilation of what Justinian"s jurists believed were the most valuable legacies of the whole earlier body of Roman law (now lost) and became the subject of study for the new generation of European jurists who emerged in the twelfth century. The newly recovered text consisted of four parts: the Digest, the Inst.i.tutes, the Code, and the Novella, of which the Digest was by far the most important, covering issues like personal status, torts, unjust enrichment, contracts, and remedies. The Digest was a compilation of what Justinian"s jurists believed were the most valuable legacies of the whole earlier body of Roman law (now lost) and became the subject of study for the new generation of European jurists who emerged in the twelfth century.12 The revival of Roman law was possible because legal studies had been established on a new inst.i.tutional basis, in the emerging modern university. At the end of the eleventh century, the University of Bologna became a center where thousands of students flocked from all over Europe to hear professors like Irnerius lecture on the Digest.13 The new legal curriculum exposed Europeans to a sophisticated legal system that they could readily use as a model for law in their own societies. Knowledge of the Code was thus carried to the remotest corners of the continent, and law faculties were established in other cities such as Paris, Oxford, Heidelberg, Cracow, and Copenhagen. The new legal curriculum exposed Europeans to a sophisticated legal system that they could readily use as a model for law in their own societies. Knowledge of the Code was thus carried to the remotest corners of the continent, and law faculties were established in other cities such as Paris, Oxford, Heidelberg, Cracow, and Copenhagen.14 The recovery of Roman law had the effect, like English Common Law, of suddenly displacing the ma.s.s of particularistic Germanic customary law that prevailed through much of Europe and replacing it with a more consistent transnational body of rules. The recovery of Roman law had the effect, like English Common Law, of suddenly displacing the ma.s.s of particularistic Germanic customary law that prevailed through much of Europe and replacing it with a more consistent transnational body of rules.15 The first generation of expositors of the Justinian Code was known as the glossators, who saw their job primarily as one of reconstructing and reproducing Roman law. But subsequent generations of scholars, such as Thomas Aquinas, looked even farther back, to the ancient Greeks in their search for the intellectual foundations of law. Cla.s.sical philosophers such as Aristotle argued that custom and received opinion needed to be subjected to human reason and measured against more universal standards of truth. Aquinas applied this principle to his own study of Aristotle, and the philosophical tradition he founded encouraged later generations of commentators on the law not to mechanically reproduce an existing body of law but instead to reason about the sources of law and how it was to be applied to novel situations.16 The cla.s.sical tradition that was revived in European universities was not simply one of appeal to the authority of certain static texts but also of rational inquiry into the meaning of those texts. The cla.s.sical tradition that was revived in European universities was not simply one of appeal to the authority of certain static texts but also of rational inquiry into the meaning of those texts.
The new university produced a separate cla.s.s of lawyers trained to interpret cla.s.sical texts and master a special domain of knowledge. Both ecclesiastical and lay authorities came to understand that they needed to defer to the lawyers" specialized knowledge in making decisions, particularly in the commercial sphere, where contract and property rights were of paramount importance. The lawyers in turn developed their own inst.i.tutional interests in protecting their domain from incursions by nonspecialists and self-interested political parties.
Prior to the Gregorian reform, church law consisted of a diverse range of decrees of church councils and synods, writings of church fathers, papal decrees, and decrees of kings and emperors speaking on behalf of the church. It was mixed up with remnants of Roman law and with customary Germanic law.17 With the establishment of a unified hierarchy within the church, it was for the first time possible for the church to legislate authoritatively and bring unity to this body of law through the activities of an increasingly professionalized group of ecclesiastical legal specialists. The monk Gratian, trained in the legal curriculum, a.n.a.lyzed thousands of canons issued over the past centuries; he reconciled and synthesized them into a single body of canon law. This was published in 1140 in a ma.s.sive legal treatise of some fourteen hundred pages, the With the establishment of a unified hierarchy within the church, it was for the first time possible for the church to legislate authoritatively and bring unity to this body of law through the activities of an increasingly professionalized group of ecclesiastical legal specialists. The monk Gratian, trained in the legal curriculum, a.n.a.lyzed thousands of canons issued over the past centuries; he reconciled and synthesized them into a single body of canon law. This was published in 1140 in a ma.s.sive legal treatise of some fourteen hundred pages, the Concordance of Discordant Canons Concordance of Discordant Canons, or the Decretum Decretum. Gratian established a hierarchy among divine, natural, positive, and customary law, and established rational procedures by which contradictions among them could be resolved. In the century following Gratian, canon law expanded enormously to cover a wide range of other topics including criminal, family, property, contract, and testamentary law.18 The Catholic church acquired statelike attributes through its concept of a single canon law. But it also became more statelike by developing a bureaucracy by which it could administer its affairs. Legal scholars have argued that the first model of the modern bureaucratic "office" as defined by Weber was created within the new, twelfth-century church hierarchy.19 Among the hallmarks of the modern office are a separation between the office and the officeholder; the office is not private property; the officeholder is a salaried official subject to the discipline of the hierarchy within which he is embedded; offices are defined functionally; and officeholding is based on technical competence. All of these were, as we have seen, characteristic of Chinese bureaucracy from the time of the state of Qin, though many offices were repatrimonialized during later dynasties. They were also increasingly characteristic of the church bureaucracy after its liberation from lay invest.i.ture and the imposition of celibacy on the priesthood. The church, for example, began to distinguish between Among the hallmarks of the modern office are a separation between the office and the officeholder; the office is not private property; the officeholder is a salaried official subject to the discipline of the hierarchy within which he is embedded; offices are defined functionally; and officeholding is based on technical competence. All of these were, as we have seen, characteristic of Chinese bureaucracy from the time of the state of Qin, though many offices were repatrimonialized during later dynasties. They were also increasingly characteristic of the church bureaucracy after its liberation from lay invest.i.ture and the imposition of celibacy on the priesthood. The church, for example, began to distinguish between officium officium and and beneficium beneficium-office and benefice-in the early twelfth century. No longer would officeholders necessarily receive feudal benefices; they could now simply be salaried employees of the church, who could be hired and fired based on their performance in their office. These bureaucrats began to staff new offices like the Papal Chancery that soon became the model for the chanceries of secular rulers.20 LAW AND THE RISE OF THE MODERN STATE.
The political order in Europe at the time of the Gregorian reform saw the beginnings of a reversal of the extreme decentralization of power that had taken place after the breakup of the Carolingian Empire in the ninth century. Power had leached out to a series of regional leaders and then was further divided when local lords started building impregnable castles at the end of the tenth century. The manor-a largely self-sufficient productive and military unit centered around the lord"s castle and lands-became the source of governance throughout Europe. On top of this system there began to appear a number of royal houses like that of the Capetians around the ile de France or the various Norman barons who conquered England and southern Italy, whose domains were larger than those of their rivals and who formed the core of a new territorial state system.
The Gregorian reform not only provided territorial states with a model of bureaucracy and law but also encouraged them to develop their own inst.i.tutions. Secular rulers were responsible for securing peace and order in their realms, and providing the rules that facilitated the emerging levels of commerce. This led to the formulation of not just one but several distinct domains of law, related to feudalism, the manor, the city, and long-distance trade. Harold Berman argues that this plurality of legal forms promoted the development of liberty in Europe by motivating compet.i.tion and innovation between jurisdictions. Particularly important was the rise of independent cities, whose free populations and dependence on external trade stimulated new demands for commercial law.21 The church"s move toward inst.i.tutional independence stimulated the corporate organization of the other sectors of feudal society as well. In the eleventh century, the bishops Gerard de Cambrai and Aldaberon de Laon formulated a doctrine that society should be organized into three hierarchical orders: the aristocracy, the ecclesiastics, and the commons-those who fought, those who prayed, and those who worked to support those who fought and prayed. This functional rather than territorial organization provided an ideological basis for the formation of each of these groups into representative estates, which rulers called together periodically to grant taxes and deliberate on issues of importance to the realm as a whole. As will be seen in later chapters, it was the ability of these estates to stand up to centralizing monarchs that determined whether particular European countries developed either accountable or absolutist governments.22 One of the peculiar features of European state building was its heavy early dependence on law as both the motive and the process by which state inst.i.tutions grew. Specialists have grown accustomed to thinking that war and violence were the great drivers of European political development. This certainly became true in the early modern period, when the rise of absolutism was built around the fiscal requirements of military mobilization. But in the medieval period, states gained legitimacy and authority by their ability to dispense justice, and their early inst.i.tutions crystallized around the administration of justice.
Nowhere was this more true than in England. In the early twenty-first century, we are used to thinking of England and its offshoot the United States as the home of Anglo-Saxon laissez-faire economic liberalism, and France as the birthplace of dirigiste centralized government. Up through the fourteenth century, however, exactly the opposite was true. Of all European polities, the English state was by far the most centralized and powerful. This state grew out of the king"s court and its ability to offer justice across the whole realm. Already by the year 1200 it boasted permanent inst.i.tutions staffed by professional or semiprofessional officials; it issued a rule saying that no case concerning the possession of land could be initiated without a writ from the king"s court; and it was able to tax the entire realm.23 Evidence of the central state"s power lay in the Domesday Book, compiled shortly after the Norman Conquest, in which residents of every single shire in the realm were surveyed. Evidence of the central state"s power lay in the Domesday Book, compiled shortly after the Norman Conquest, in which residents of every single shire in the realm were surveyed.24 There was also already an incipient sense of English national ident.i.ty. When the barons confronted King John at Runnymede in 1215 and imposed on him the Magna Carta, they did so not as individual warlords seeking to exempt themselves from general rules. They expected a unified national government to better protect their rights through the king"s courts, and in this respect saw themselves as representatives of a larger community.25 France, by contrast, was a much less unified realm at the time. There were major linguistic and cultural differences among its various regions, and the king could not raise taxes beyond his own small domain around the ile de France. France, by contrast, was a much less unified realm at the time. There were major linguistic and cultural differences among its various regions, and the king could not raise taxes beyond his own small domain around the ile de France.
HOW THE MEDIEVAL CHURCH SET PRECEDENTS FOR CONTEMPORARY RULE OF LAW.
The emergence of the Catholic church as a modern bureaucracy and its promulgation of a coherent canon law in the twelfth century still leaves us very far from contemporary rule of law. In developed countries with a strong rule of law, the law that gives legitimacy to political rule is usually a written const.i.tution. This higher law is not derived from religious authority, and many const.i.tutions in fact mandate political neutrality with regard to the substantive moral issues to which religion speaks. The legitimacy of modern const.i.tutions comes rather out of some kind of democratic ratification procedure. That higher law may be seen as rooted in timeless or universal principles, as Abraham Lincoln argued the U.S. Const.i.tution was,26 and most modern const.i.tutions leave somewhat ambiguous the ultimate source of their legitimacy. and most modern const.i.tutions leave somewhat ambiguous the ultimate source of their legitimacy.27 But as a practical matter, the interpretation of those principles is always subject to political contestation. In the end, the power of democratically legitimated executives and legislatures is checked by a const.i.tutional law that is also democratically legitimated, albeit with more stringent requirements for social consensus through some form of supermajority voting. (In a more recent development, governments can also be checked by supranational legal bodies like the European Court of Human Rights or the International Criminal Court, whose basis of legitimacy is much murkier than those of national-level courts. But as a practical matter, the interpretation of those principles is always subject to political contestation. In the end, the power of democratically legitimated executives and legislatures is checked by a const.i.tutional law that is also democratically legitimated, albeit with more stringent requirements for social consensus through some form of supermajority voting. (In a more recent development, governments can also be checked by supranational legal bodies like the European Court of Human Rights or the International Criminal Court, whose basis of legitimacy is much murkier than those of national-level courts.28) In some liberal democracies including Israel and India, religious courts still exercise jurisdiction over certain issues like family law. But these are seen as exceptions to a general rule that excludes religious authority from partic.i.p.ation in the legal system.
So why does it make sense to say that law based on religion created the foundations for modern rule of law?
The existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law. The a.s.sertion of Frederic Maitland that no English king ever believed that he was above the law could not be said of any Chinese emperor, who recognized no law other than those he himself made. In this respect Christian princes were like Indian rajas and Kshatriyas, and Arab and Turkish sultans, who would agree that they were below the law.
In every society with religiously based law, political rulers legislated and tried to encroach on the domain of religious law. In many cases, this encroachment was necessary since there were many areas of life where religious law did not provide adequate rules. But the more dangerous encroachments were ones of principle. The great political struggles of early modern Europe (to be detailed in subsequent chapters) concerned the rise of monarchs who a.s.serted novel doctrines of sovereignty that placed themselves rather than G.o.d at the top of the hierarchy. These kings, like Chinese emperors, a.s.serted that they alone could make law through their positive enactments, and that they were not bound by prior law, custom, or religion. The story of the rise of modern rule of law concerns the success of resistance to these claims and a rea.s.sertion of the primacy of law. This resistance was obviously made much easier when a religious tradition gave law a sanct.i.ty, autonomy, and coherence that it otherwise might not have had.
The discontinuity between medieval and modern rule of law is more apparent than real, moreover, if one understands law as an embodiment of a broad social consensus regarding rules of justice. This is what Hayek meant when he said that law was prior to legislation. In a religious age like the twelfth century, or in the contemporaneous Muslim or Indian worlds, social consensus was expressed religiously because religion played a far greater role in people"s daily lives than it does today. Religious laws were not something dropped on societies from outer s.p.a.ce. Even when they were initially imposed through violence and conquest, they coevolved with their societies and were taken up by them as indigenous moral codes.29 There was no separation between the religious and secular realms, and therefore no way to articulate social consensus other than in religious terms. Today, in an age when religion plays a much more restricted role, it is inevitable that social consensus has to be determined in other ways, such as by voting in democratic elections. But law remains an expression of broadly shared rules of justice regardless of whether it is expressed in religious or in secular terms. There was no separation between the religious and secular realms, and therefore no way to articulate social consensus other than in religious terms. Today, in an age when religion plays a much more restricted role, it is inevitable that social consensus has to be determined in other ways, such as by voting in democratic elections. But law remains an expression of broadly shared rules of justice regardless of whether it is expressed in religious or in secular terms.
The religious law that emerged from the twelfth century on had an important effect on modern rule of law by helping to inst.i.tutionalize and rationalize the law. For rule of law to exist, it is not sufficient to establish a theoretical principle that political rulers are subject to law. Unless that law is embodied in visible inst.i.tutions that exist with some degree of autonomy from the state, it is much less likely to inhibit the state"s discretion. Moreover, if the law is not a coherent and clearly stated body of rules, it cannot be used to limit executive authority. The idea of a const.i.tutional separation of powers has to be based on the reality of a legal system that has strong influence over its own recruitment and promotion, sets its own professional standards, trains its own lawyers and judges, and is granted genuine power to interpret the law without interference from political authority. Even though the English king was responsible for creating a common law based on the final authority of the royal courts, he also delegated a huge amount of authority to judges and permitted the growth of a strong legal profession that was not exclusively dependent on the state for its employment and income. In continental Europe, the Justinian civil law tradition meant that the interpretation of law remained more centralized, but there was a parallel development of an autonomous legal profession-in fact, multiple legal professions for the multiple forms of law that appeared. In either case, Western law was rationalized to a greater degree than either Indian or Sunni Muslim law. Neither of these traditions saw the emergence of someone like Gratian, who would take the whole body of religious edicts and make them internally consistent.
The legal tradition that emerged in Western Europe was distinctly different from the one that existed in the lands under the influence of the Eastern church. It was not Christianity per se, but the specific inst.i.tutional form that Western Christianity took, that determined its impact on later political development. In the Eastern Orthodox church, bishops continued to be appointed by the emperor or by local political rulers, and the church as a whole never declared independence from the state. While the Eastern church never lost the tradition of Roman law the way the Western church did, it also never a.s.serted the same kind of primacy over the Byzantine emperor.
The emergence of a rule of law is the second of three components of political development that together const.i.tute modern politics. As in the transition out of tribal or kinship-based social organization, the dating of this shift in Europe needs to be pushed back to a point well before the beginning of the early modern period-in the case of rule of law, to at least the twelfth century. This underlines one of the central themes of this book, namely, that the different components of modernization were not all part of a single package that somehow arrived with the Reformation, Enlightenment, and Industrial Revolution. While modern commercial law codes were driven by the requirements of independent cities and burgeoning trade, the rule of law in the first instance was the product not of economic forces but of religious ones. Thus two of the basic inst.i.tutions that became crucial to economic modernization-individual freedom of choice with regard to social and property relationships, and political rule limited by transparent and predictable law-were created by a premodern inst.i.tution, the medieval church. Only later would these inst.i.tutions prove useful in the economic sphere.
19.
THE STATE BECOMES A CHURCH.
How the rule of law developed in India and the Middle East but not in China; how authority was effectively split between secular and religious authorities in the Middle East; how premodern Middle Eastern regimes observed property rights; why the Muslim ulama were never able to check state power in the manner of the Christian church; why no rule of law exists in the contemporary Arab world; the modern rules of law compared
In China, religion didn"t reflect social and cultural consensus, but tended rather to be a source of social protest. This was true from Daoism in the Han and Buddhism in the Tang Dynasty, to the Christian-influenced Taipings in the nineteenth century, to Falun Gong today. The Chinese state has never recognized a source of religious authority higher than itself and has easily controlled whatever priesthoods existed.
There was thus no historical grounding for a religiously based rule of law in China. In a tradition anch.o.r.ed by Legalism, the Chinese thought of their law primarily as positive law. The law was whatever the emperor decreed. Major legal codes were published during the Qin, Han, Sui, Tang, and Ming dynasties, many of which were simply lists of punishments for various infractions. The Tang Code, issued in several different versions in the seventh and eighth centuries, contains no reference to a divine source for the law; rather, it makes clear that laws are made by earthly rulers to control persons whose misbehavior would upset the balance of nature and society.1 Things were totally different in India, where the Brahmanic religion that developed contemporaneously with or slightly before the period of Indian state formation subordinated the political/warrior cla.s.s-the Kshatriyas-to the priestly cla.s.s, the Brahmins. Indian religion was built around the fourfold hierarchy of varnas that put priests at the top, and all Indian rulers had to turn to the Brahmins for legitimacy and social sanction. Law was therefore deeply rooted in religion rather than in politics; the earliest law tracts, the Dharmasastras, were not edicts of emperors as in China but doc.u.ments written by religious authorities.2 Subsequent Indian law developed a bit like English Common Law, based not strictly on these legal texts but on case law and linked precedents generated by panditas, or religious experts on law. Subsequent Indian law developed a bit like English Common Law, based not strictly on these legal texts but on case law and linked precedents generated by panditas, or religious experts on law.3 Not only were their rulings often enforced by Brahmins rather than by the political authorities, but they did not permit a separate secular realm of rule making. Law had many of the specific characteristics mentioned by Hayek: it was generally unalterable, or could be changed only by reference to an even more ancient precedent from which the current law was said to be a degeneration. Not only were their rulings often enforced by Brahmins rather than by the political authorities, but they did not permit a separate secular realm of rule making. Law had many of the specific characteristics mentioned by Hayek: it was generally unalterable, or could be changed only by reference to an even more ancient precedent from which the current law was said to be a degeneration.4 As a conservative Hindu was reported to have said in response to the postindependence Indian parliament"s effort to modify the marriage and divorce laws, "The authority of Parliament cannot override the dictates of the Shastras, G.o.d"s Spoken Words, written down for our benefit by all-seeing Rishis. No Hindu can accept any other authority than that of the Shastras." As a conservative Hindu was reported to have said in response to the postindependence Indian parliament"s effort to modify the marriage and divorce laws, "The authority of Parliament cannot override the dictates of the Shastras, G.o.d"s Spoken Words, written down for our benefit by all-seeing Rishis. No Hindu can accept any other authority than that of the Shastras."5 The Brahmin cla.s.s was not organized, however, into a single hierarchy that could give orders to kings and emperors. There was no Hindu pope and no Hindu church. The Brahmin cla.s.s represented more of a network whose members communicated with one another horizontally across the myriad villages and cities where they lived. But the Brahmins were themselves riven by cla.s.s distinctions defined by the jatis into which they were divided. A Brahmin who presided over royal invest.i.tures might not be willing to consort with one who presided over funeral rites. Religious authorities therefore exercised tremendous influence at a local level, where their services were needed for virtually every social event. They were never subordinated to the state or made into state employees. But they also were incapable of collective action through an inst.i.tutional hierarchy. The jati-induced fragmentation of authority affected not just political power but religious power as well.
RULE OF LAW IN THE MIDDLE EAST.
In addition to India and Europe, the other world civilization in which a rule of law came into being was the Islamic Middle East. Many people today inside and outside the region are aware that many regimes, particularly in the Arab world, are cruel dictatorships unconstrained by any sense of higher law or justice.6 Westerners often think that the fusion of church and state is intrinsic to Islam while being foreign to Christian Europe, and that the kind of theocratic regime set up in Iran after the 1979 revolution somehow const.i.tutes a reversion to a traditional form of Muslim rule. None of this is accurate. Westerners often think that the fusion of church and state is intrinsic to Islam while being foreign to Christian Europe, and that the kind of theocratic regime set up in Iran after the 1979 revolution somehow const.i.tutes a reversion to a traditional form of Muslim rule. None of this is accurate.
The emergence of modern Muslim dictatorships is a result of the accidents of the region"s confrontation with the West and subsequent transition to modernity. Political and religious authority were frequently united in Christian Europe. In the Muslim world, they were effectively separated through long historical periods. Law played the same function in Muslim lands that it did in Christian ones: acting as a check-albeit weaker-on the power of political rulers to do as they pleased. Rule of law is basic to Muslim civilization, and in fact defines that civilization in many respects.
Let us begin by cataloging the similarities between the Muslim and Christian worlds with regard to the role of law in society. Law is rooted in religion in both traditions; there is only one G.o.d, who exercises universal jurisdiction and is the source of all truth and justice. Both traditions, along with Judaism, are deeply scriptural, with basic social rules being codified from a very early point. In the case of Islam, those rules are not just the Holy Koran but also the sunna and the hadith, which incorporated stories and sayings from the life of Muhammad that could serve as guidance for behavior. The interpretation of these rules, however, was in many cases uncertain and had to be delegated to a special cla.s.s of priests-clergy of the church, in the case of Christianity, and to the ulama, or scholars, in the case of Islam. In both cases, law comes not from political power, as in China, but from G.o.d, who has dominion over political authorities. While Muhammad may have become a tribal ruler in his lifetime, his authority over his fellow Arabs did not rest merely on his command of force but also on his role as the transmitter of the word of G.o.d.
The first few caliphs united, like Muhammad, religious authority and political power in their own persons, a practice that continued through the Umayyad dynasty. But political and caliphal power began to part ways at the dynasty"s end, when an Umayyad prince fleeing the Abbasids set up a separate western caliphate in Spain. Different provinces of the empire peeled off over time, reducing the authority of the caliph in Baghdad to the area immediately around the capital, and even there he became a puppet of the military commander who held real power.7 The Fatimids in Tunisia and then in Egypt set up their own schismatic caliphate, and the Baghdad caliph"s authority was never recognized in the first place by the Shiites and the Kharijites. While caliphs may have claimed universal spiritual authority, their effective jurisdiction fell far short of it. The Fatimids in Tunisia and then in Egypt set up their own schismatic caliphate, and the Baghdad caliph"s authority was never recognized in the first place by the Shiites and the Kharijites. While caliphs may have claimed universal spiritual authority, their effective jurisdiction fell far short of it.
By the eleventh century, power was effectively split between the caliph and whoever was in control of political power in a particular territory. The real power holder-that is, the secular prince-a.s.sumed the t.i.tle "emir of emirs." Through a legal sleight of hand, the caliph claimed to have delegated authority to him, in return for securing his own authority over more narrowly religious matters.8 The legal scholar Abu al-Hasan al-Mawardi explained that this was legitimate because the caliph continued to exercise temporal authority through his deputy, though the truth was exactly the opposite: the caliph had become a puppet of the emir. The legal scholar Abu al-Hasan al-Mawardi explained that this was legitimate because the caliph continued to exercise temporal authority through his deputy, though the truth was exactly the opposite: the caliph had become a puppet of the emir.9 The world of Islam was effectively caesaropapist rather than theocratic: secular rulers held power and hosted on their territory a caliph and an ulama who administered the sharia. The world of Islam was effectively caesaropapist rather than theocratic: secular rulers held power and hosted on their territory a caliph and an ulama who administered the sharia.10 What never happened in the Sunni Muslim world was the formal extrication of the caliph and the ulama from the polities in which they were embedded into a single, separate inst.i.tution with its own clear hierarchy, jurisdiction, and control over its own personnel. No one, that is, ever established a single Muslim "church" comparable to the Catholic church that emerged after the Gregorian reform. Like the Catholic church before the invest.i.ture conflict, the Muslim clerisy was a distributed network of priests, judges, and scholarly interpreters who read and applied Muslim case law. Within the Sunni tradition, there were four major competing schools of Muslim law that were philosophically heterogeneous and whose rise and fall were dependent on political favor. Because the ulama never inst.i.tutionalized itself around a hierarchy, it was not possible to generate a single legal tradition. Nor was it possible for a Muslim hierarchy to contest political power in the manner of Roman popes.
SEPARATION OF MOSQUE AND STATE.
This did not mean, however, that there was no no functional separation of religious and secular authority. In the fifteenth-century Ottoman Empire, Tursun Bey wrote that the sultan could make positive law on his own initiative, independently of the sharia. This body of secular law became known as the functional separation of religious and secular authority. In the fifteenth-century Ottoman Empire, Tursun Bey wrote that the sultan could make positive law on his own initiative, independently of the sharia. This body of secular law became known as the kanunname kanunname (derived from the term "canon law" used in Europe), and was used in areas where traditional Islamic jurisprudence failed to establish adequate rules, such as public and administrative law. Rules involving taxation and property rights in newly conquered territories, as well as rules regulating the issuance of currency and trade, fell under the kanunname. (derived from the term "canon law" used in Europe), and was used in areas where traditional Islamic jurisprudence failed to establish adequate rules, such as public and administrative law. Rules involving taxation and property rights in newly conquered territories, as well as rules regulating the issuance of currency and trade, fell under the kanunname.11 The traditional sharia, focusing primarily on marriage, family, inheritance, and other personal matters, was applied by a network of The traditional sharia, focusing primarily on marriage, family, inheritance, and other personal matters, was applied by a network of kadis kadis and and mujtahids mujtahids, jurisconsults who were learned in the Muslim cla.s.sics and could apply this diffuse body of law to specific cases, much like the Hindu panditas.12 This then required the establishment of two parallel judicial establishments, one secular and the other religious. The kadis applied the sharia but had to rely on secular authorities to enforce their judgments. This then required the establishment of two parallel judicial establishments, one secular and the other religious. The kadis applied the sharia but had to rely on secular authorities to enforce their judgments.13 In theory, the growing body of secular law used in the Ottoman Empire was subordinate to the body of sharia and reviewable by the religious authorities. But just as the caliph"s theoretical authority over the sultan belied an actual relationship of dependence, so too the religious law was squeezed by the expanding requirements for regulation of a growing commercial society. The independence of the religious authorities was further restricted when the Ottoman court created the position of grand mufti. Previously, the government had appointed kadis from among the community of scholars but left determination of the content of the law up to them. The new mufti and the bureaucracy under him were authorized to issue nonbinding opinions, or fatwas, regarding the content of the sharia. Turkey moved in the opposite direction from Europe, toward increasing political control over religion.14 If the Roman church took on attributes of a state, the Turkish state took on attributes of a church. If the Roman church took on attributes of a state, the Turkish state took on attributes of a church.
To what extent was a rule of law actually observed in the premodern Middle East? As noted in chapter 17 17, there are at least two separate meanings of the rule of law commonly in use today, the first having to do with the day-to-day observance of property rights and contract law that permits commerce and investment to take place, and the second related to the willingness of the ruler and the ruling cla.s.s to observe the limits set by law. The second meaning has implications for the first, because if a society"s elites do not observe the rule of law, they will be tempted to use their power to arbitrarily seize property from people weaker than them. But as also noted, it is possible for rulers to have large theoretical powers to arbitrarily violate property rights and yet respect a day-to-day rule of law in practice.
For the two Middle Eastern regimes we have looked at in depth, the Egyptian Mamluks and the Turkish Ottomans, a rule of law in the first sense existed as a default condition. That is, there were well-established rules regarding property and inheritance that permitted both long-term investment and predictable commercial transactions. Rule of law in the second sense existed as well, since both Mamluk and Ottoman sultans conceded the principle that their powers were limited by a prior law established by G.o.d. In practice, however, they had considerable lat.i.tude to interpret that law in their favor, particularly in periods of fiscal stringency where their search for revenues induced them to violate long-standing legal norms.
While full, modern property rights didn"t exist in either case, it is not clear that their absence was the binding constraint on economic development in the Muslim world.15 Most land in the Ottoman Empire was owned by the state and given out to sipahis only during their term of active military service. The peasants who worked the sipahis" land, however, did have usufructuary rights that they could pa.s.s on to their children. Other reaya, like craftsmen and merchants, had private property rights and could acc.u.mulate large fortunes if they were lucky and skillful. All traditional Middle Eastern rulers were well aware of the dangers of excessively high and burdensome taxes, which they sought to avoid in the name of "justice." In addition, they, like other monarchs, saw their role as protectors of common people from the predatory instincts of wellborn elites. Not even the sultan could simply go around the law. If the sultan"s sipahis came to execute a punishment on his orders, they nonetheless needed to bring the accused into a kadi"s presence and obtain a judgment against him. In cases when an individual died intestate, the property remained in the hands of an executor before it could be claimed by the state. Property of deceased non-Muslim foreigners was similarly recorded by a kadi and held until an heir appeared. Most land in the Ottoman Empire was owned by the state and given out to sipahis only during their term of active military service. The peasants who worked the sipahis" land, however, did have usufructuary rights that they could pa.s.s on to their children. Other reaya, like craftsmen and merchants, had private property rights and could acc.u.mulate large fortunes if they were lucky and skillful. All traditional Middle Eastern rulers were well aware of the dangers of excessively high and burdensome taxes, which they sought to avoid in the name of "justice." In addition, they, like other monarchs, saw their role as protectors of common people from the predatory instincts of wellborn elites. Not even the sultan could simply go around the law. If the sultan"s sipahis came to execute a punishment on his orders, they nonetheless needed to bring the accused into a kadi"s presence and obtain a judgment against him. In cases when an individual died intestate, the property remained in the hands of an executor before it could be claimed by the state. Property of deceased non-Muslim foreigners was similarly recorded by a kadi and held until an heir appeared.16 One clear piece of evidence of how law limited the power of traditional Muslim governments was in the role of charitable waqfs. As we have seen, the elite military slaves who ran the regime were initially forbidden to have descendants or to acc.u.mulate property. Both the Mamluks and Turkish Janissaries got around these rules first by acquiring families, and then by establishing charitable foundations to be run by their children or other designees, and whose income would guarantee their descendants" livelihoods. Arab and Turkish rulers left many of these waqfs intact over many generations, though strict restrictions on modifying the bequest limited their economic usefulness.17 But if the waqf defines the limits of the state"s ability to take private property, its frequent use as a shelter for a.s.sets suggests that other, less religiously protected forms of property were subject to arbitrary taxation. Even if not every state deserves to be called predatory, all states are tempted to become predatory when circ.u.mstances demand it. The fifteenth-century Circa.s.sian Mamluk regime fell into increasingly dire fiscal straits as time went on, leading their sultans to seek desperate stratagems to raise revenues. Ordinary tax rates were raised arbitrarily and fortunes seized, leading wealthy individuals to look for ever more creative ways to hide their wealth rather than investing it. Similarly, the fiscal crisis that the Ottomans faced in the second half of the sixteenth century led to increases in tax rates and threats to traditional property rights. The long-held inst.i.tutional rules regarding Janissary employment and the prohibition against families were relaxed, and state timars were corruptly sold off by insiders to the highest bidder rather than being retained as rewards for military service. The Mamluks even raided the waqfs in their search for funds, just as Christian rulers constantly tried to get their hands on the rich holdings of monasteries and other church properties.
The Pope"s Divisions Joseph Stalin was said to have contemptuously asked, "How many divisions has the pope?" Since, as I have argued, the rule of law is rooted in religion, we can ask a similar question of judges and lawyers: How many divisions do they deploy in a state ruled by law? What powers of enforcement do they have to make rulers obey the laws according to their interpretations?
The answer, of course, is none. The separation of powers between an executive and a judiciary is only metaphorical. The executive has real coercive powers and can call up armies and police to enforce his (or her) will. The power of a judicial branch, or of religious authorities who are the custodians of the law, lies only in the legitimacy that they can confer on rulers and in the popular support they receive as protectors of a broad social consensus. Gregory VII could force Henry to come to Canossa, but he could not actually depose him as emperor. For this, he had to rely on military allies like the German princes who were jealous of Henry, or the Norman kings of southern Italy. The pope"s ability to attract worldly allies was dependent, in turn, on their views of the legitimacy of his cause, as well as of their own calculations of short-term self-interest. The outcome of the invest.i.ture conflict was a complex mixture of both material and moral factors. In the end, a temporal ruler with access to military and economic resources was forced to compromise with a spiritual leader with some economic resources but no coercive power. The pope"s authority was thus real, but it didn"t rest on his divisions.
The power of the Muslim ulama was founded, like the power of the pope, on its ability to confer legitimacy on the sultan. This power was particularly great during succession struggles. In Muslim lands, both Islamic and Turkish tribal custom forbade the establishment of clear rules of dynastic succession like primogeniture. Sultans could designate heirs, but the actual succession process often turned into a free-for-all among the sultan"s sons or, in the case of the Mamluks, the major factional leaders. In this situation, the power of the ulama to grant or withhold its support gave it considerable leverage. But if the intervention in the power struggle became too overt, as in the case of the caliphs during the period of the Circa.s.sian Mamluks, they could undermine their own position.
We should not, however, exaggerate the strength of the rule of law in premodern Muslim societies. The law operated in a "good enough" fashion for the protection of property rights and commerce, but it did not const.i.tute anything like a const.i.tutional guarantee of rights against rulers who were determined to violate them. The fact that the grand mufti and the network of kadis were all selected and employed by the state significantly lessened their autonomy, quite differently from the independent jurists employed by the Catholic church after the twelfth century. The Ottoman state remained caesaropapist to the end, and indeed increased its degree of control over the Muslim scholars as time went on.
HOW THE RULE OF LAW FAILED TO SURVIVE CONTACT WITH THE WEST IN BOTH INDIA AND ISLAM.
There are many similarities between the rule of law in India and in the Middle East before they were either colonized or heavily influenced by the West. In both cases there was a traditional written law protected by religious authorities and a complex body of case law created over the centuries by religious judges-panditas in the Hindu case and kadis in the Muslim- which was pa.s.sed down as precedents. In both cases, the religious law was the ultimate source of justice; political rulers were, theoretically at least, only authorized or deputized to carry it out.
In this respect, both India and the Middle East were far closer to Christian Europe than any of these three regions was to China. Where both India and the Middle East differed from Europe was in the fact that their religious establishments did not extract themselves from the political order. There was never anything like a Brahmin pope, and while there was a Muslim caliph, after the Umayyads he was largely a captive of the dominant political ruler in the Islamic lands. Not being independent of governments, neither religious establishment could set itself up as a hierarchical, modern bureaucracy with autonomous control over cadres and promotions. And without autonomy, it was hard for the religious-legal establishment to act as a powerful check on the state. Since the religious establishment remained interpenetrated with the state, the state itself could not evolve as a separate secular inst.i.tution.
The traditional rule of law did not survive modernization either in India or in the Muslim world, and that failure is particularly tragic in the latter case. In India, the presidency of the East India Company led by Warren Hastings decided in 1772 to apply the Dharmasastra to the Hindus, Islamic law to the Muslims, and some version of English "Justice, Equity, and Good Conscience" to all other cases.18 In their application of "Hindu" law, the British simply misunderstood the role of law in Indian society. They believed that the Dharmasastra was the equivalent of European ecclesiastical law, that is, religious as opposed to secular law that was codified in written texts and uniformly applicable to all Hindus. Canon law in Europe had turned into this, as we have seen, after a long period of development, but Indian law never went through a similar evolution. It was less a textually based law than a living and evolving body of rules overseen by panditas and applied contextually in different parts of India. In their application of "Hindu" law, the British simply misunderstood the role of law in Indian society. They believed that the Dharmasastra was the equivalent of European ecclesiastical law, that is, religious as opposed to secular law that was codified in written texts and uniformly applicable to all Hindus. Canon law in Europe had turned into this, as we have seen, after a long period of development, but Indian law never went through a similar evolution. It was less a textually based law than a living and evolving body of rules overseen by panditas and applied contextually in different parts of India.19 The British rulers were hobbled by, among other things, their limited ability to read Sanskrit. The British made use of panditas as if they were scholarly experts on the Dharmasastra, but distrusted them and tried to circ.u.mvent them as more Sanskrit texts became available in English. The use of panditas was abolished altogether in 1864, replaced by British judges who sought to interpret traditional Hindu law on their own. (A parallel break in the use of sharia by Indian Muslims occurred as well. The British rulers were hobbled by, among other things, their limited ability to read Sanskrit. The British made use of panditas as if they were scholarly experts on the Dharmasastra, but distrusted them and tried to circ.u.mvent them as more Sanskrit texts became available in English. The use of panditas was abolished altogether in 1864, replaced by British judges who sought to interpret traditional Hindu law on their own. (A parallel break in the use of sharia by Indian Muslims occurred as well.20) At that point, traditional Hindu law as a living tradition collapsed. It was revived under the Republic of India, but the continuity of the tradition had by then been broken.
An even more radical break occurred in the tradition of Muslim rule of law. The Ottoman government sought to do what the British had done to Indian law in a reform called the Mecelle that was compiled between 1869 and 1876. The aim was to codify the sharia and to systematize it into a single, coherent set of laws, seeking in effect to achieve what Gratian had done with canon law in 1140. In the process, they undercut the traditional social role of the ulama, since the role of judge in a strictly codified legal system is very different from and less important than that in a more amorphous system. The Ottoman const.i.tution of 1877 reduced the sharia to one form of law among several, depriving it of its former role as the legitimating framework for political rule as a whole. The traditional cla.s.s of scholars was gradually displaced by judges trained in Western law. With the rise of Kemal Ataturk and the Turkish Republic after World War I, the caliphate was abolished and the Islamic basis of the Turkish state replaced by secular nationalism.21 The Arabs, for their part, never accepted the Mecelle as fully legitimate, and they developed an increasingly separate sense of ident.i.ty as the Ottoman and Young Turk movements unfolded. After independence, they found themselves stranded between a truncated system of traditional sharia and a Western legal system brought to them by the colonial powers. The Arabs, for their part, never accepted the Mecelle as fully legitimate, and they developed an increasingly separate sense of ident.i.ty as the Ottoman and Young Turk movements unfolded. After independence, they found themselves stranded between a truncated system of traditional sharia and a Western legal system brought to the