The Origins Of Political Order Part 20

17.J.G.A. Poc.o.c.k, "Burke and the Ancient Const.i.tution-A Problem in the History of Ideas," Historical Journal Historical Journal 3, no. 2 (1960): 12543. 3, no. 2 (1960): 12543.

18.Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes Order Without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 1991). (Cambridge, MA: Harvard University Press, 1991).

19.For a critique of Hayek, see Shklar, "Political Theory and the Rule of Law."

20.For background, see Richard E. Messick, "The Origins and Development of Courts," Judicature Judicature 85, no. 4 (2002): 17581. Some people define law as rules enforceable by third parties, in which case law as such does not exist in a tribal society. I will nonetheless continue to refer to tribal law. 85, no. 4 (2002): 17581. Some people define law as rules enforceable by third parties, in which case law as such does not exist in a tribal society. I will nonetheless continue to refer to tribal law.

21.Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), p. 54. (Cambridge, MA: Harvard University Press, 1983), p. 54.

22.Ibid., p. 56.

23.Quoted in Bloch, Feudal Society Feudal Society, p. 113.

24.Pollock and Maitland, The History of English Law The History of English Law, p. 184.

25.Joseph R. Strayer, On the Medieval Origins of the Modern State On the Medieval Origins of the Modern State (Princeton: Princeton University Press, 1970), pp. 2930; Martin M. Shapiro, (Princeton: Princeton University Press, 1970), pp. 2930; Martin M. Shapiro, Courts: A Comparative and Political a.n.a.lysis Courts: A Comparative and Political a.n.a.lysis (Chicago: University of Chicago Press, 1981), p. 74. (Chicago: University of Chicago Press, 1981), p. 74.

26.Paul Brand, "The Formation of the English Legal System, 11501400," in Antonio Padoa-Schioppa, ed., Legislation and Justice Legislation and Justice (New York: Clarendon Press, 1997), p. 107. (New York: Clarendon Press, 1997), p. 107.

27.Ibid., p. 108.

28.On this point, see Arthur T. von Mehren, The Civil Law System: Cases and Materials for the Comparative Study of Law The Civil Law System: Cases and Materials for the Comparative Study of Law (Boston: Little, Brown, 1957), pp. 711. (Boston: Little, Brown, 1957), pp. 711.

29.Strayer, Medieval Origins of the Modern State Medieval Origins of the Modern State, pp. 2631.

30.Brand, "Formation of the English Legal System," p. 104.

31.Maine, Early Law and Custom Early Law and Custom, pp. 296328. In fact, the French state during the eighteenth century had increasingly supported peasant legal claims against the local seigneurs, eroding even this aristocratic privilege. As Tocqueville suggests, this led to a corresponding rise of peasant expectations that fed the anger they felt at remaining inequalities. See Hilton Root, Peasants and King in Burgundy: Agrarian Foundations of French Absolutism Peasants and King in Burgundy: Agrarian Foundations of French Absolutism (Berkeley: University of California Press, 1987), pp. 2021. (Berkeley: University of California Press, 1987), pp. 2021.

32.See Tom R. Tyler, Why People Obey the Law Why People Obey the Law (New Haven: Yale University Press, 1990). (New Haven: Yale University Press, 1990).

33.Pollock and Maitland, The History of English Law The History of English Law, p. 182.

34.Martin Shapiro argues that English judicial independence has always been exaggerated, and that the English have always had a countervailing belief in the unified sovereignty of the king in Parliament. See Shapiro, Courts Courts, pp. 6567.

18: THE CHURCH BECOMES A STATE.

1.Norman F. Cantor, The Civilization of the Middle Ages The Civilization of the Middle Ages, rev. ed. (New York: Harper, 1993), pp. 8687.

2.Berman, Law and Revolution Law and Revolution, p. 91.

3.Ibid., p. 88.

4.Already in the late ninth century, Frankish ecclesiastics had begun to argue that Christian kings.h.i.+p was based on a delegation of the right to rule as a "vicar of G.o.d." They sought to divest kings.h.i.+p of the religious authority it enjoyed under rulers like Charlemagne and to locate religious legitimacy in the church alone. The involvement of priests and bishops in politics was highly corrupting and provoked a series of reform movements in the tenth and eleventh centuries. The first of these was the Clunaic movement, named after the Abbey of Cluny in southern France, which for the first time united like-minded monasteries across Europe into a single, hierarchical order. The Clunaic movement promoted the idea of the Peace of G.o.d, under which Christians were enjoined from committing acts of violence or warfare against clerics, pilgrims, merchants, Jews, women, or peasants. Wilfred L. Warren, The Governance of Norman and Angevin England, 10861272 The Governance of Norman and Angevin England, 10861272 (Stanford: Stanford University Press, 1987), pp. 1516. (Stanford: Stanford University Press, 1987), pp. 1516.

5.For background, see Cantor, Civilization of the Middle Ages Civilization of the Middle Ages, pp. 24965.

6.This case was laid out not just by the Clunaic movement but also in works such as Humbert of Moyenmoutier's Three Books Against the Simoniacs Three Books Against the Simoniacs, published in 1058 before Gregory's papacy, that denounced the buying and selling of offices. James R. Sweeney, "Review of Harold Berman, Law and Revolution Law and Revolution," Journal of Law and Religion Journal of Law and Religion 2, no. 1 (1984): 201. 2, no. 1 (1984): 201.

7.Berman, Law and Revolution Law and Revolution, pp. 8990.

8.There was a precedent for this in Pope Gelasius's excommunication of the patriarch of Constantinople for being too subservient to the emperor. See Cantor, Civilization of the Middle Ages Civilization of the Middle Ages, p. 86.

9.Strayer, Medieval Origins of the Modern State Medieval Origins of the Modern State, pp. 2122.

10.Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion Faith and Order: The Reconciliation of Law and Religion (Atlanta: Scholars Press, 1993), p. 40. (Atlanta: Scholars Press, 1993), p. 40.

11.The Roman law had been developed since the time of the late Republic by a cla.s.s of men known as jurisconsults, who were professional legal specialists and the precursors of modern judges. While the Code was used in the Byzantine Empire, an authoritative text had been lost in most parts of Western Europe for many centuries. Cantor, Civilization of the Middle Ages Civilization of the Middle Ages, pp. 12526.

12.Mary Ann Glendon, Michael W. Gordon, and Paolo G. Carozza, Comparative Legal Traditions Comparative Legal Traditions (St. Paul, MN: West Publis.h.i.+ng, 1999), p. 19. The achievement of the Code was to slim down and make consistent the ma.s.sive body of earlier Roman law. See Shapiro, (St. Paul, MN: West Publis.h.i.+ng, 1999), p. 19. The achievement of the Code was to slim down and make consistent the ma.s.sive body of earlier Roman law. See Shapiro, Courts Courts, pp. 12830.

13.The university const.i.tuted a new model of teaching where relatively wealthy students supported their professors through fees. Their control over teaching methods and subject matter should be a matter of envy for later generations of students unhappy with their professors. Berman, Law and Revolution Law and Revolution, pp. 12327.

14.Strayer, Medieval Origins of the Modern State Medieval Origins of the Modern State, pp. 2526; Glendon, Gordon, and Carozza, Comparative Legal Traditions Comparative Legal Traditions, p. 25.

15.Shapiro, Courts Courts, p. 131.

16.Glendon, Gordon, and Carozza, Comparative Legal Traditions Comparative Legal Traditions, p. 24.

17.Ibid., pp. 2223.

18.Harold J. Berman, "Religious Foundations of Law in the West: An Historical Perspective," Journal of Law and Religion Journal of Law and Religion 1, no. 1 (1983): 9. 1, no. 1 (1983): 9.

19.Udo Wolter, "The officium officium in Medieval Ecclesiastical Law as a Prototype of Modern Administration," in Padoa-Schioppa, in Medieval Ecclesiastical Law as a Prototype of Modern Administration," in Padoa-Schioppa, Legislation and Justice Legislation and Justice, p. 31.

20.Strayer, Medieval Origins of the Modern State Medieval Origins of the Modern State, p. 34.

21.See Harold J. Berman, "Some False Premises of Max Weber's Sociology of Law," in Berman, Faith and Order Faith and Order, pp. 24450.

22.Thomas Ertman, Birth of the Leviathan: Building States and Regimes in Medieval and Early Modern Europe Birth of the Leviathan: Building States and Regimes in Medieval and Early Modern Europe (New York: Cambridge University Press, 1997), pp. 5354. (New York: Cambridge University Press, 1997), pp. 5354.

23.Strayer, Medieval Origins of the Modern State Medieval Origins of the Modern State, pp. 4243.

24.David Harris Sacks, "The Paradox of Taxation," in Philip T. Hoffman and Kathryn Norberg, eds., Fiscal Crises, Liberty, and Representative Government Fiscal Crises, Liberty, and Representative Government (Stanford: Stanford University Press, 1994), p. 15. (Stanford: Stanford University Press, 1994), p. 15.

25.Strayer, Medieval Origins of the Modern State Medieval Origins of the Modern State, p. 46.

26.Lincoln in his debates with Stephen Douglas argued that the Const.i.tution was based on the principle of equality enunciated in the Declaration of Independence, which limited the ability of even properly const.i.tuted democratic majorities to make some men slaves of others. Douglas by contrast argued that there was no principle higher than democracy that could decide such issues. See Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates (Seattle: University of Was.h.i.+ngton Press, 1959). (Seattle: University of Was.h.i.+ngton Press, 1959).

27.Modern const.i.tutions refer to universal principles like natural or human rights, but they also require democratic ratification and don't fully confront the issue of how the two are to be reconciled in cases when they conflict.

28.See Tom Ginsburg, "Introduction: The Decline and Fall of Parliamentary Sovereignty," in Ginsburg, ed., Judicial Review in New Democracies: Const.i.tutional Courts in Asian Cases Judicial Review in New Democracies: Const.i.tutional Courts in Asian Cases (New York: Cambridge University Press, 2003). (New York: Cambridge University Press, 2003).

29.For example, Christianity was imposed on the indigenous populations of the western hemisphere by conquest and violence. Contemporary Catholicism in countries with large indigenous populations, such as Mexico and Peru, is a syncretic mixture of Christian and pagan practices, like the celebration of the Day of the Dead. It nonetheless still makes sense to think of them as historically Catholic countries.

19: THE STATE BECOMES A CHURCH.

1.John W. Head, "Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America," Duke Journal of Comparative and International Law Duke Journal of Comparative and International Law 13, no. 1 (2003): 138. See also Shapiro, 13, no. 1 (2003): 138. See also Shapiro, Courts Courts, pp. 16981.

2.For background, see J. Duncan M. Derrett, Religion, Law, and the State in India Religion, Law, and the State in India (London: Faber, 1968), chaps. 34. (London: Faber, 1968), chaps. 34.

3.See Richard W. Lariviere, "Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past," Journal of Asian Studies Journal of Asian Studies 48, no. 4 (1989): 75769. 48, no. 4 (1989): 75769.

4.J. Duncan M. Derrett, History of Indian Law (Dharmasastra) History of Indian Law (Dharmasastra) (Leiden: E. J. Brill, 1973). (Leiden: E. J. Brill, 1973).

5.Lariviere, "Justices and Panditas," pp. 76364.

6.Alfred Stepan and Graeme Robertson note that the real deficit in liberal democracy lies more in the Arab world than in the Muslim world more generally. See Alfred C. Stepan and Graeme B. Robertson, "An 'Arab' More Than a 'Muslim' Democracy Gap," Journal of Democracy Journal of Democracy 14, no. 3 (2003): 3044. 14, no. 3 (2003): 3044.

7.Bernard Lewis, "Politics and War," pp. 16566.

8.Ibid., p. 168.

9.Noah Feldman, The Fall and Rise of the Islamic State The Fall and Rise of the Islamic State (Princeton: Princeton University Press, 2008), pp. 3738. (Princeton: Princeton University Press, 2008), pp. 3738.

10.The limits of the caliph's authority were made evident whenever one tried to intervene too far into politics. The Bahri Mamluk sultanate had transferred the Abbasid caliph from Baghdad to Cairo, where he played a relatively minor role in legitimating Mamluk sultans. Toward the end of the sultanate, the caliph al-Mutawakkil III got involved in anti-Circa.s.sian intrigues, for which he was deposed and then later reinstated. His son al-Mustain was used by the emirs for their own purposes, but then he was deposed as caliph, as was another successor, al-Qaim, who partic.i.p.ated in an attempted coup. Jean-Claude Garcin, "The Regime of the Circa.s.sian Mamluks," in Petry, ed.

11.Inalcik, The Ottoman Empire The Ottoman Empire, p. 70.

12.Wael B. Hallaq, The Origins and Evolution of Islamic Law The Origins and Evolution of Islamic Law (New York: Cambridge University Press, 2005), pp. 7580. Max Weber a.s.serted that the kadi sat in the marketplace and rendered decisions on a completely subjective basis, without any reference to formal rules or norms. They were for Weber the archetype of substantive irrationality in his taxonomy of legal systems. In fact, the kadis operated on the basis of case law and precedent in a manner similar to European judges. The problem was that Muslim law had not undergone the kind of synthesis and systematization that happened to both canon and secular law in Europe after the Gregorian reform. The imprecision of the underlying law added significantly to the discretionary powers of the individual judge. See Inalcik, (New York: Cambridge University Press, 2005), pp. 7580. Max Weber a.s.serted that the kadi sat in the marketplace and rendered decisions on a completely subjective basis, without any reference to formal rules or norms. They were for Weber the archetype of substantive irrationality in his taxonomy of legal systems. In fact, the kadis operated on the basis of case law and precedent in a manner similar to European judges. The problem was that Muslim law had not undergone the kind of synthesis and systematization that happened to both canon and secular law in Europe after the Gregorian reform. The imprecision of the underlying law added significantly to the discretionary powers of the individual judge. See Inalcik, The Ottoman Empire The Ottoman Empire, p. 75; and Max Rheinstein, "Introduction," in Max Weber, Max Weber on Law in Economy and Society Max Weber on Law in Economy and Society (Cambridge, MA: Harvard University Press, 1954), p. xlviii. (Cambridge, MA: Harvard University Press, 1954), p. xlviii.

13.Lybyer, The Government of the Ottoman Empire The Government of the Ottoman Empire, pp. 3637.

14.Feldman, The Fall and Rise of the Islamic State The Fall and Rise of the Islamic State, pp. 5052. To this day, the government of the Turkish Republic tightly controls the Muslim religious establishment.

15."Binding constraint" is taken from Dani Rodrik, Ricardo Hausmann, and Andres Velasco, "Growth Diagnostics," in Narcis Serra and Joseph E. Stiglitz, eds., The Was.h.i.+ngton Consensus Reconsidered The Was.h.i.+ngton Consensus Reconsidered (New York: Oxford University Press, 2008). There were many other constraints on the emergence of sustained economic growth in the Muslim world beyond poor property rights. Perhaps the most important was a growing intellectual unwillingness to engage in public debate over the social system itself as it was being overtaken by the West, particularly after the conflict with the Safavids at the end of the seventeenth century. For an overview of theories of how Islam relates to economic backwardness, see Timur Kuran, (New York: Oxford University Press, 2008). There were many other constraints on the emergence of sustained economic growth in the Muslim world beyond poor property rights. Perhaps the most important was a growing intellectual unwillingness to engage in public debate over the social system itself as it was being overtaken by the West, particularly after the conflict with the Safavids at the end of the seventeenth century. For an overview of theories of how Islam relates to economic backwardness, see Timur Kuran, Islam and Mammon: The Economic Predicaments of Islamism Islam and Mammon: The Economic Predicaments of Islamism (Princeton: Princeton University Press, 2004), pp. 12847. (Princeton: Princeton University Press, 2004), pp. 12847.

16.Inalcik, The Ottoman Empire The Ottoman Empire, p. 75.

17.Timur Kuran, "The Provision of Public Goods Under Islamic Law: Origins, Impact and Limitations of the Waqf System," Law and Society Law and Society 35 (2001): 84197. 35 (2001): 84197.

18.Derrett, History of Indian Law History of Indian Law, pp. 23.

19.Head, "Codes, Cultures, Chaos," pp. 75860.

20.Muhammad Qasim Zaman, The Ulama in Contemporary Islam: Custodians of Change The Ulama in Contemporary Islam: Custodians of Change (Princeton: Princeton University Press, 2002), pp. 2131. (Princeton: Princeton University Press, 2002), pp. 2131.

21.Feldman, The Fall and Rise of the Islamic State The Fall and Rise of the Islamic State, pp. 6268.

22.See ibid., pp. 11117.

23.Shaul Bakhash, Reign of the Ayatollahs: Iran and the Islamic Revolution Reign of the Ayatollahs: Iran and the Islamic Revolution (New York: Basic Books, 1984). (New York: Basic Books, 1984).

20: ORIENTAL DESPOTISM.

1.Denis Twitchett, ed., The Cambridge History of China The Cambridge History of China, Vol. 3: Sui and T'ang China, 589906, Part I Sui and T'ang China, 589906, Part I (New York: Cambridge University Press, 1979), pp. 5758, 15051. (New York: Cambridge University Press, 1979), pp. 5758, 15051.

2.Ibid., pp. 8687.

3.For intellectual developments during the Song Dynasty, see James T. C. Liu, China Turning Inward: Intellectual-Political Changes in the Early Twelfth Century China Turning Inward: Intellectual-Political Changes in the Early Twelfth Century (Cambridge, MA: Harvard Council on East Asian Studies, 1988). (Cambridge, MA: Harvard Council on East Asian Studies, 1988).

4.For an overview, see Anatoly M. Khazanov, Nomads and the Outside World Nomads and the Outside World, 2d ed. (Madison: University of Wisconsin Press, 1994).

5.Frederick W. Mote, Imperial China 9001800 Imperial China 9001800 (Cambridge, MA: Harvard University Press, 1999), chaps. 212, 1719. (Cambridge, MA: Harvard University Press, 1999), chaps. 212, 1719.

6.Richard L. Davis, Wind Against the Mountain: The Crisis of Politics and Culture in Thirteenth-Century China Wind Against the Mountain: The Crisis of Politics and Culture in Thirteenth-Century China (Cambridge, MA: Harvard Council on East Asian Studies, 1996), p. 4. (Cambridge, MA: Harvard Council on East Asian Studies, 1996), p. 4.

7.Angus Maddison, Chinese Economic Performance in the Long Run. Chinese Economic Performance in the Long Run. 2nd. ed., revised and updated: 2nd. ed., revised and updated: 9602030 AD 9602030 AD (Paris: OECD Development Centre, 2007), p. 24. Kent Deng puts the figures at forty-three million in 1006 and seventy-seven million in 1330. Deng, "Unveiling China's True Population Statistics." (Paris: OECD Development Centre, 2007), p. 24. Kent Deng puts the figures at forty-three million in 1006 and seventy-seven million in 1330. Deng, "Unveiling China's True Population Statistics."

8.Naito Torajiro, "Gaikatsuteki To-So jidai kan," Rekis.h.i.+ to chiri Rekis.h.i.+ to chiri 9, no. 5 (1922): 112. Joshua A. Fogel, 9, no. 5 (1922): 112. Joshua A. Fogel, Politics and Sinology: The Case of Naito Konan (18661934) Politics and Sinology: The Case of Naito Konan (18661934) (Cambridge, MA: Harvard Council on East Asian Studies, 1984). I am grateful to Professor Demin Tao of Kansai University for background information on Naito. (Cambridge, MA: Harvard Council on East Asian Studies, 1984). I am grateful to Professor Demin Tao of Kansai University for background information on Naito.

9.Hisayuki Miyakawa, "An Outline of the Naito Hypothesis and Its Effects on j.a.panese Studies of China," Far Eastern Quarterly Far Eastern Quarterly 14, no. 4 (1955): 53352. 14, no. 4 (1955): 53352.

10.See, for example, Robert M. Hartwell, "Demographic, Political, and Social Transformations of China, 7501550," Harvard Journal of Asiatic Studies Harvard Journal of Asiatic Studies 42, no. 2 (1982): 365442; and Patricia B. Ebrey and James L. Watson, 42, no. 2 (1982): 365442; and Patricia B. Ebrey and James L. Watson, Kins.h.i.+p Organization in Late Imperial China 10001940 Kins.h.i.+p Organization in Late Imperial China 10001940 (Berkeley: University of California Press, 1986). Naito is a controversial figure in Chinese historiography due to his a.s.sociation with the j.a.panese occupation of China. See Fogel, (Berkeley: University of California Press, 1986). Naito is a controversial figure in Chinese historiography due to his a.s.sociation with the j.a.panese occupation of China. See Fogel, Politics and Sinology Politics and Sinology, pp. xviiiii.

11.The account of the empress Wu presented here is taken from Twitchett, Cambridge History of China Cambridge History of China, Vol. 3, chaps. 5 and 6.

12.Denis C. Twitchett and Frederick W. Mote, eds., The Cambridge History of China, The Cambridge History of China, Vol. 8: Vol. 8: The Ming Dynasty, 13681644, Part 2 The Ming Dynasty, 13681644, Part 2 (New York: Cambridge University Press, 1978), p. 18. (New York: Cambridge University Press, 1978), p. 18.

13.There were, of course, soothsayers, astrologers, and oracle readers who looked for signs of favor or disfavor in the stars or other natural phenomena. The major dynastic struggles always involved favorable or unfavorable omens, such as a prophecy during the Sui that a new dynasty would be founded by someone with the surname Li. The oracles could themselves be manipulated by political contenders, such as the white stone found in a river that was said to portend the rise of the empress Wu (see Twitchett, Cambridge History of China Cambridge History of China, Vol. 3, p. 302). During the Sui and Tang dynasties, powerful Buddhist and Daoist religious establishments were created, but they never played a role comparable to the religious establishments in other parts of the world.

14.See Twitchett and Michael Loewe, The Cambridge History of China The Cambridge History of China, Vol. 1, pp. 72637.

15.Mote, Imperial China Imperial China, p. 97.

16.Ibid., p. 562.

21: STATIONARY BANDITS.

1.Mancur Olson, "Dictators.h.i.+p, Democracy, and Development," American Political Science Review American Political Science Review 87, no. 9 (1993): 56776. 87, no. 9 (1993): 56776.

2.See, for example, Bates, Prosperity and Violence Prosperity and Violence; Robert Bates, Avner Greif, and Smita Singh, "Organizing Violence," Journal of Conflict Resolution Journal of Conflict Resolution 46, no. 5 (2002): 599628; and North, Weingast, and Wallis, 46, no. 5 (2002): 599628; and North, Weingast, and Wallis, Violence and Social Orders Violence and Social Orders.

3.The other part of Olson's theory, that democratic societies tax at lower rates than autocratic ones, is wrong as well. As we will see in chapter 27, the advent of parliamentary accountability in England led to a ma.s.sive increase increase in the rate of taxation. in the rate of taxation.

4.Quoted in William Theodore de Bary and Irene Bloom, eds., Sources of Chinese Tradition Sources of Chinese Tradition, 2d ed. (New York: Columbia University Press, 1999), 1:39.

5.Twitchett and Mote, Cambridge History of China Cambridge History of China, Vol. 8, p. 110; Ray Huang, "Fiscal Administration During the Ming Dynasty," in Charles O. Hucker and Tilemann Grimm, eds., Chinese Government in Ming Times: Seven Studies Chinese Government in Ming Times: Seven Studies (New York: Columbia University Press, 1969), p. 105. (New York: Columbia University Press, 1969), p. 105.

6.Maddison, Chinese Economic Performance in the Long Run Chinese Economic Performance in the Long Run, p. 24.

7.Twitchett and Mote, Cambridge History of China Cambridge History of China, p. 131.

8.Huang, "Fiscal Administration During the Ming," p. 82.

9.Twitchett and Mote, Cambridge History of China Cambridge History of China, pp. 12829.

10.Ibid., pp. 107109.