By ANDREW KOPPELMAN
Review of The Rule of Law in the Real World, by Paul Gowder
Cambridge: Cambridge University Press, 2016
Everyone loves the rule of law, but they don’t agree on what it is or why it matters. That’s why Paul Gowder’s book is so important. It begins with the humblest task of analytic philosophy, the disambiguation of the common sense meaning of terms. It shows that these terms point to a morally urgent ideal.
There are, Gowder shows, a proliferation of conceptions of the rule of law. Philosophers and lawyers focus on predictability and stability. Empirical social scientists offer a cluster of indicators. The World Bank lumps together intellectual property protection with the speed of dispute resolution. Often the rule of law is assimilated to the protection of property rights—a measure that would be satisfied, Gowder observes, by “a capitalist tyranny that protects the property rights of the elite and promotes economic development while conducting a reign of terror featuring disappearances, show trials, and similar markers of a twentieth-century failed legal system” (2). Almost everyone thinks that the rule of law promotes individual liberty and economic growth, but they can’t agree on what they’re measuring.
Gowder’s core claim is that the rule of law is not centrally concerned with liberty or economic development, but with equality, the equal standing of all members of the community. He moves from disambiguation to more controversial implications.
The weakest, least controversial meaning is regularity (consistent deployment of state power) and publicity (the regularities are known to the subject population). Gowder’s major innovation is to show that, within these desiderata, there are deeper commitments. They are salient because they provide protection against hubris (the unaccountable use of power) and terror (the unpredictable use of power). He argues that this weaker meaning implies a stronger one: generality, the treatment of subjects as equals for reasons that can be justified to everyone. Hubris and terror can only be avoided if the masses have institutional means to coordinate in order to defend themselves against these abuses. Regularity and publicity are insufficient.
To build a legal system that is regular, public, and general is to set the state on a course in which its overwhelming power is to be used against the people in the community only when those who wield it can explain, to the satisfaction of a watchful public, how its use is consistent with the equal standing of those against whom it is to be used. To establish such a system is to declare a commitment to equality, to maintain it is to rely on that commitment across the political community (189).
He offers a predictive hypothesis: “the rule of law will exist and persist only if the members of a political community can see how it preserves their equal status, and are able to commit to coordinated enforcement of the law against the powerful” (5).
This has an important implication for judging the development of legal systems. It means that the rule of law does not require any specific institutional arrangements, such as constitutions, juries, or independent judiciaries. Thus, for example, England has had the rule of law for centuries, even though there was no written constitution and Parliament was supreme. Property rights and a free press matter because they are means of dispersing access to power.
The book ranges across an impressive range of disciplines. Chapters 1-4 are pure political philosophy, developing his conception of the rule of law and defending it against rival views. Chapters 5-7 test the theory against the cases of ancient Athens and seventeenth-century England, showing how the rule of law emerged in each of those very different contexts because groups had strategic reasons and ability to demand that the law treat them as equals. Gowder draws on game theory, and even computer modeling, in order to formalize his claims about the structure of incentives that support the stability of the rule of law.
The book ends with a critical engagement with the international development literature. Here he argues that, instead of pressing developing countries to create Western-style legal structures, development organizations should try to build commitment to egalitarian institutions, working with whatever norms and practices of constraining political power are already in place, in order to give larger numbers of people moral and strategic reasons to support those institutions.
The rule of law is a hotly contested concept among legal philosophers and scholars of international development. Gowder offers an original and persuasive take on the problem. The book’s weakest passages are in his brief discussion of the American problem of racist policing and mass incarceration. He is right that, to the extent that poor communities are subject to unaccountable abuses of police power, the rule of law is lacking. But his account of the roots of that problem is crude. He uncritically embraces Michelle Alexander’s claim that mass incarceration happened “to enforce racial status hierarchies” (Gowder, 57).
Alexander’s The New Jim Crow presents it as the consequence of a racist conspiracy, though the conspirators themselves are never identified. She doesn’t take into account the huge surge in crime (with disproportionately black victims) from the 1960s on, nor the deindustrialization that stripped so many cities of black working-class jobs, nor the desegregation that made it possible for the most responsible and prosperous African-Americans to abandon their old neighborhoods and leave a concentration of dysfunctional people. She doesn’t recognize how much of the punitive response was demanded by African-Americans themselves, alarmed about crime in their own neighborhoods, as James Forman has shown. She doesn’t acknowledge that most of those in prison are there for violent offenses, as John Pfaff has shown.
This weakness in Gowder’s argument is a shame, because his claim that the rule of law depends on the strategic calculations of the least well off is obviously relevant here. This is true: “Communicating to racial, ethnic, and religious minorities that they are seen as subordinate legal classes predisposed to criminality will make it more difficult for the subordinated minorities to take the internal point of view on the law” (191). It would be nice to have fewer brutal and racist police, but Gowder’s own argument suggests that this is not sufficient to create the kind of stake in the system that the rule of law demands. It points toward a massive effort to reintegrate former felons into their communities, and to build the institutions those communities need to prevent the hubris and terror that today are part of their daily lives.
All this is a quibble about how to apply Gowder’s own framework. That framework is the right one to apply. The Rule of Law in the Real World is a major work, one I’d be likely to assign in an introductory course on philosophy of law, along with Hart, Fuller, and Dworkin. It has permanently changed the way I think about what we are trying to accomplish with the law.
Disclosure: Professor Gowder will join the author’s faculty at Northwestern Law in Fall 2020. When this piece was written, the author had never met or corresponded with him.
Posted on 5 March 2020
ANDREW KOPPELMAN is John Paul Stevens Professor of Law and Professor (by courtesy) of Political Science, Department of Philosophy, Affiliated Faculty, Northwestern University.
