DEMOCRACY AND THE RULE OF LAW

Vol. 13 No. 11 (November 2003)

DEMOCRACY AND THE RULE OF LAW by José María Maravall and Adam Przeworski (Editors). Cambridge: Cambridge University Press, 2003. 321 pp. Cloth $65. ISBN: 0521833955. Paper $24.00. ISBN: 0521529859.

Reviewed by Christopher Waters, School of Law, University of Reading. Email: c.p.m.waters@rdg.ac.uk

The main question posed by DEMOCRACY AND THE RULE OF LAW is “why governments do or do not act according to laws” (p.1). The answer given by José María Maravall and Adam Przeworski is that governments act according to laws when they must.

The normative power of law—if indeed there is such a thing other than in the minds of lawyers—holds no sway in and of itself. Though rulers sometimes obey and even promote the elements of the rule of law as they are commonly defined (laws are known, not retroactive, and so on), they only do so when it is in their interests – when the benefits of disobeying the law are outweighed by the costs. This rational choice rubric is used by most of the contributors. Each author explores different strategies of rulers and ruled, governments and courts, and considers how these strategies combined may ultimately manifest themselves in an institutional equilibrium resembling the rule of law ideal. At the same time, most of the contributors dismiss democratic or legal culture as useful concepts, or at least as explanatory tools. Although there is much to argue with in this book, it contains undeniably fresh and clear thinking and poses a real challenge to those who rely on culture to explain the presence of democracy and the rule of law.

The book’s twelve chapters are divided into three parts, although the reason for division into three parts is not self-evident and is not explained in the introduction. Part One is perhaps where contributors are most willing to tackle the fundamental question posed head on, often arguing from first principles. Part Two seems more concerned with particular institutional arrangements and Part Three, with the tensions between democracy and the rule of law. Or perhaps the division into three parts is simply an editorial tool to have readable “chunks.” Regardless, each part contains some gems.

Stephen Holmes’ chapter in the first part is especially noteworthy. Focussing on the question of strategic decision-making by leaders, Holmes asks: “why do people with guns obey people without guns?” Or, less brazenly, “why do people with power accept limits to their power?” (p.24). To answer that question he relies on Machiavelli to show why rulers may make their actions predictable. At base, they do this when they require the co-operation of subject groups to provide soldiers and taxes. The need for the cooperation of citizen-soldiers is especially urgent in the face of external threat: “a ruler who needs to raise a citizen army cannot keep his subjects apprehensive, disorganized, demoralized, mutually distrustful, passive, and incapable of collective resistance….a shrewd ruler will provide the poor and the weak with fair legal procedures, democratic participation and property rights” (p.32). These fair legal procedures and other democratic attributes also serve to provide the public with mechanisms to deal with grievance and denunciation in a way other than “back-street ambush.” Holmes also considers why rulers might accept equality before the law and how these principles apply in post-communist Russia—although the application to Russia is disappointingly thin given his long engagement with that country’s politics and law. Other chapters in Part I address how “brute and institutional powers interact” through constitutive rules (I. Sánchez-Cuenca), how most theories of the rule of law are “description of a situation to be wished for, not of the means to reach that situation” (M. Troper), how the problem of co-ordination between citizens must be overcome before the state can be policed (B.R. Weingast), and how only rational choice – not cultural views – can explain why “democracy lasts forever” in affluent countries but not in poor ones (A. Przeworski).

In Part Two Robert Barros takes a fascinating look at the rule of law in a dictatorship. Unlike the other chapters in the book, Barros presents a thorough case study – Pinochet’s Chile – to inform and test theory. He argues that not only is rule BY law possible in a dictatorship (leaders govern through laws and subordinate officials, and agencies apply law in a consistent and fair way), but so too is a version of the rule OF law where the autocrats themselves are subject to laws. Under the military dictatorship of Chile in the 1970s and 1980s, the four branches of the military/security forces constituted the theoretically unlimited sovereign. In fact these four branches were potential rivals, and in order to regulate each other and to perpetuate the dictatorship, they agreed early on to rules limiting power. These early rules “set off a conflictive process that results in a promulgation of a constitution to further regulate the terms of their association. This Constitution, in turn, sets into operation institutions that subsequently limit the original rule makers, with the peculiar outcome that the military’s immediate political power is eventually dissolved according to procedures contained in its own rules” (pp.197-198). Extrapolating from the Chilean case, Barros concludes that only a government (autocratic or democratic) composed of a plurality of actors will promulgate procedural rules in order to determine what constitutes a collective decision of the sovereign. These rules may take on a life of their own (though in an institutional, not normative sense) and ultimately constrain rulers, including dictators. The other chapters in Part Two deal with the possibility of having the rule of law in a system which is more majoritarian than the usual liberal model of constitutionalism (R. Gargarella), and how the costs to rulers of non-compliance need not be coordinated but rather can come from decentralized and mutually suspect groups in society (C. Smulovitz).

Law reformers in transition countries commonly ask for a democratic, rule of law based state. According to Maravall in Part Three, however, the supposed harmony between democracy and law is nothing more than a “normative stereotype” (p.264). The real question is what strategies politicians adopt to have the tension between democracy and law work in their favour. Maravall covers three: 1) where politicians use democracy to overcome limits imposed by the rule of law and judges; 2) where politicians use the rule of law and the independence of judges to undermine democracy; and, 3) where politicians, while not seeking to subvert democracy as a regime, use the independence of judges to beat political opponents. Politicians will adopt these strategies involving the politicisation of the independence of the judiciary, “when the payoffs of this strategy appear to be higher than those of the alternative – respecting the mutual autonomy of judges and politicians” (p.269). The game theory Maravall employs to show the cost-benefit analysis is illustrated through examples ranging from Hugo Chávez’s use of his parliamentary majority to purge judges following the 1999 Venezuelan election, to the inter-war judicial repression of the left by the German judiciary, and to the silencing of political opponents in Spain in the late 1990s through the launching of judicial investigations.

Other chapters in Part Three consider the institutional requirements for an independent but not unchecked judiciary (C. Guarnieri), the gradual displacement of democratic rule by courts since 1945 in Western Europe (J. Ferejohn & P. Pasquino), and, in the last chapter of the book, a discussion of the perils of law reform in the face of entrenched interests (B. Fontana). Curiously, this last chapter, which explores the law reform theme through Montaigne’s writings, also introduces the theme of justice. The concept makes an appearance for the first time in the book and is in obvious contrast to the power politics approach taken hitherto. Fontana concludes with the thought that “if Montaigne did not believe that in practice natural justice and the particular justice of nations could ever coincide, he could not bring himself to edit out of the text of the Essais the sustained tension between the two” (p.314). It appears at the end of the day, that neither could Maravall and Przeworski.

As noted earlier, those who take a cultural view of democracy or the rule of law will have to grapple with this book’s arguments. The “self-interested actor explains all” scheme is persuasively put, though not without flaws. For example, Przeworski’s argument that affluence explains democracy is intriguing but does not explain the rule of law (and after all, we have learned that the rule of law can exist in dictatorships) or the quality of democracy. The former Soviet Union has provided numerous examples where the form of democracy co-exists with authoritarianism and corrupt, dependent courts. Another difficulty with the book is the straw-man caricature of legal scholarship. Michel Troper, for example, writes that the “problem of obedience may look strange to a legal scholar. Lawyers deal not with obedience but with obligation” (p.94). References such as these – and they are numerous - completely ignore the fact that much legal scholarship, especially but not exclusively socio-legal scholarship, is concerned precisely with this question. Nevertheless, disciplinary hubris aside, this book is clearly a must read for anyone interested in the question of what causes democracy and/or the rule of law.

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