See the introduction to and explanation for this series of posts.

Gillian K. Hadfield and Barry R. Weingast, Microfoundations of the Rule of Law

I should note at the beginning that I’ve recently read a lot of work by Paul Gowder on the rule of law, and a draft paper on the topic by Steven Wall; it’s possible that ideas from them crept into this post.

This article does a great job of drawing together ideas and themes from across political and legal theory, institutional comparative politics, law & economics, and related fields. It takes as a point of departure some points that are increasingly remarked upon in work on the rule of law: the concept is everywhere in social science and theory these days, but it’s a mess, and it’s not clear whether people are talking about the same thing or whether they’re talking about anything coherent at all, and the mess matters because the concept is particularly important in various kinds of development policy. Powerful actors are throwing resources at solutions they don’t really understand to a problem they can’t really properly describe.

Hadfield and Weingast suggest that building an account of legal order with solid microfoundations will help. Now, I’m not especially easy to convince that the search for microfoundations is a useful enterprise. See under “I am not a methodological individualist,” passim. A lot of the social sciences are most productively conducted at the mezzo- and macro-levels, and the urge to redescribe them in micro terms is about as productive as telling the biologist who studies rabbits that she needs to redescribe what she’s doing in terms of atoms. But Weingast and his collaborators (I don’t know Hadfield in particular beyond this article) get the benefit of the doubt from me, and this article repays it.

One very important contribution of this piece is that it starts to bring the literature on nonstate legal orders (e.g. Ostrom, Ellickson, Dixit) into engagement with legal philosophy. Positivist legal philosophy tends to be– I do not think it has to be, but it tends to be– excessively statist in its concept of law, failing to distinguish legal systems and authority from states and state authority. (See here my colleague Victor Muniz-Fraticelli’s The Structure of Pluralism.) Hadfield and Weingast help to explain law as a general type of which state law is a subset– and they do so in ways that starts to bridge the gap between that idea and mainstream legal philosophy.

That said, I think this is a better article on the microfoundations of legal orders than it is an article on the microfoundations of the rule of law; and it is not always clear to me that the authors recognize a difference there. They’re right to see (with Fuller and others) that the very idea of legality connects with the desiderata associated with the rule of law; and they’re right to treat the idea of the rule of law as closer to the idea of legal order as such than to the “all good things” model that crops up in the development literature. The rule of law is not constitutionalism, or democracy, or human dignity, or economic growth, or, or, etc., though it those might be causes or effects, facilitating factors or facilitated consequences, of the rule of law. And I think they’re very importantly right in emphasizing that state-capacity-building work by international organizations and development-policy institutions can be disruptive of legal order rather than a contribution to it– this is a crucial insight from the understanding that legal order can be extra-state.

But I also think that the rule of law is a norm that has some distinctive meaning in social worlds in which there’s state power and authority. The general norms of legality (which they identify as publicity; clarity, noncontradiction, uniqueness: authoritative stewardship; stability; prospectivity and congruence; generality; impersonal, neutral, and independent reasoning; and public reasoning and open process) need to be accompanied by a norm about exclusivity: only power that is exercised in these ways will be legitimate. The legal order cannot sit alongside an extra-legal order of state power, in particular an order of violence and executive power that violates those norms. The centerpiece of that rule is the prohibition on extrajudicial imprisonment or punishment. There can be a dense and vibrant legal order that nonetheless does not count as the rule of law, when the fairly-operating courts run parallel to non-legal but officially sanctioned tools of domination and terror. When the Star Chamber coexists with the normally-functioning common-law courts, we have legal ordering but also something else alongside it that means “the rule of law” doesn’t describe the system. (Applications to an American legal order that coexists with Guantanamo are left as an exercise for the reader.)

Nor, I think, do they give enough weight to corruption (of the judiciary, the police, or officials of the administrative apparatus) as a central threat to the norms of legality they do identify. A functioning social order more or less necessarily includes functioning legal orders. I would want to hold the phrase “rule of law” in reserve for a higher threshold than that (but still a much lower threshold than “all good things). And, along with the operation by law of executive and police power, I would want to emphasize non-corruption in official institutions as part of that threshold. A social-economic order that rested on thriving, fair, and successful non-state legal orders in the background– the Dixit/ Ellickson/ Ostrom kinds of cases writ large– would still fail to earn the title “rule of law” if the state apparatus itself was rotten with corruption and nepotism. I think they would say that the absence of corruption and nepotism is entailed by some of their positive legalistic desiderata, but, again, I would say that the rule of law has to be not just about the presence of orders that abide by legalistic norms but also about the absence of important kinds of political power that don’t respect those norms.

Still, as an account of legal orders– which is an idea that has a lot to do with the rule of law, even though they’re not identical concepts– this is a very useful synthesis and productive suggestion of paths forward. (And I’ll be following up on a lot of references from its bibliography.)

While I’ve got the question of microfoundations on my mind, next up will be Scott de March and Scott E. Page, “Agent-Based Models.” I’m both excited and intimidated to read it. I’ve wanted to start reading Page’s work ion that field for quite a while, and I suspect that an ARPS article is the place to start– but I also suspect that even an ARPS article is going to be over my head a lot of the time.