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A theory of rule of law (RL).

Introduction

It is often stated that the process of globalization promotes the equalisation of civilization. Thus, economic differences shrink, investments spread, and the internet highway connects more and more. Financial markets are open consecutively; global travelling is skyrocketing year after year, etc. Are there any basic differences between the civilisations of today? Hardly economically, besides the poverty of Sub-Saharan Africa, but politically: yes.

What is most dear to ordinary people is to live their lives under a rule of law regime where they are protected concerning life, liberty and property. But less than half the population of the world is enjoying the benefits of rule of law. Why is that?

I will argue in this paper that culture has something to do with the enforcement of the rule of law (RL). Moreover, in my view, rule of law trumps democracy, which is why it is the greatest idea in Western political history or historical thought.

I. RULE OF LAW: Meaning and measurement

The study of rule of law regimes has been much advanced in the large Government Project by the World Bank, starting in 1999 and delivering each year a series of data covering about 210 countries.

The concept of good governance has no standard definition in the dictionaries. Instead, I will rely upon the approach of the World Bank to governance in its major project. The WB states:

"Governance consists of the traditions and institutions by which authority in a country is exercised. This includes the process by which governments are selected, monitored and replaced; the capacity of the government to effectively formulate and implement sound policies; and the respect of citizens and the state for the institutions that govern economic and social interactions among them." (http://info.worldbank.org/governance/wgi/index.asp)

The WB Governance project, mapping good or bad governance around the globe during the last decade, identifies six dimensions in the concept introduced in the quotation above. I will focus exclusively upon rule of law RL.

A political regime that runs according to rule of law would satisfy a few conditions that constrain the exercise of political power. Rule of law entails that power is exercised according to the following precepts concerning due legal process and judicial accountability:

--Legality: nullum crimen sine lege;

--Constitutionality: lex superior;

--Rights and duties: negative human rights; habeas corpus;

--Judicial independence: complaint, appeal, compensation.

A government adhering to these precepts is likely to be more successful in enhancing socio-economic development than a government that fails to respect these principles. Thus, economic activity will be stimulated by legal predictability, the protection of property, and the autonomy of judges when testing cases for assumed violations of legality or constitutionality (Cooter and Ulien, 2010).

The link between good governance satisfying rule of law precepts (1)-(4) above and socio-economic development is the integrity of contracts, i.e. the ease with which the honouring of agreements can be accomplished, from the making of a contract to its enforcement in court. When economic agents can go about their business knowing what they can contract about on the basis of certain and reasonable expectations, then the workings of the invisible hand is in place.

The rule of law regime offers constraints upon political power, whether the power of political leaders or that of bureaucrats. It counteracts a number of vices that political power often succumbs to, including: (a) Arbitrariness; (b) Corruption and embezzlement; (c) Nationalisation of property; (d) False accusations and unreasonable search and seizure; (e) Detention without accusation; (f) Politicised court rulings. Thus, a country which honours rule of law upholds rules that restrain politicians and bureaucrats in an effort to promote the outcomes (a)--(f), which are beneficial for both economic life and political liberty.

Where the rules of rule of law are observed, one would not always find democracy. In general it holds that democracy implies rule of law, but the opposite may not hold. Thus, the rule of law set of rules anticipated the democratic regime from a historical perspective, in both the UK and in Continental Europe. And on the contemporary scene, one finds countries with considerable amount of rule of law, although they do not practise competitive democracy with free and fair elections that may be contested by any political party whatsoever. One may map the spread of rule of law by employing a set of indicators on the respect for the rules (1)-(4).

In the World Bank Governance project, one encounters the following definition of "rule of law":

Rule of Law (RL) = "capturing perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence" (Kaufmann, Kraay and Mastruzzi, 2010: 4).

RL is explicitly separated from voice and accountability, which is defined as follows in the WB project:

Voice and Accountability (VA) = "capturing perceptions of the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media" (Kaufmann, Kraay and Mastruzzi, 2010: 4).

The WB Governance project suggests four additional dimensions of good governance (political stability, government effectiveness, regulatory quality and the control of corruption), but we will only enquire into RL here. The WB Governance project employs a host of indicators in order to measure the occurrence of RL around the globe, which results in a scale from -2 to + 2.

II. RULE OF LAW AND DEMOCRACY

The distinction in the WB governance project helps us illuminating the complexity of the notion of constitutional democracy. Present day democracies combine these two aspects: rule of law as well as voice and accountability, but they are not logically linked. A country may have a rule of law regime but not accept the principle of one person one vote. We find many such regimes in history. And a country may practice plebiscitary democracy or populist democracy without a rule of law framework, as with the Jacobins and their theoretician: Rousseau. The attractiveness of constitutional democracy is that it offers a bulwark against totalitarian democracy, where what "the people" wants is the Law--see Talmon's Origins of Totalitarian Democracy (1962).

Populist democracy may take two forms, either the constant referendum model as practiced in only one country in the world, i.e. Switzerland, or "Fuhrer democracy" as exemplified by Robespierre, Napoleon, the Bolsheviks and Hitler. The origins of the rule of law regime date back to the Ancient Times, where the First Roman Republic adhered to institutionalised power, or legal rational "Herrschaft" with Max Weber (1978). The introduction of emperorship destroyed the Roman rule of law and its key interpreter, Cicero, was slayed by Caesar's camp. But the idea of rule of law was invigorated in the feudal society during the high medieval period, resulting in the making of several constitutions or constitutional documents. The emergence of Common Law gave constitutionalism a definitive legal structure.

The first major theoretician of constitutionalism in modern times was the Calvinist Theodore Beze, who looked for rule of law safeguards against the Prince, especially for religious minorities. As a matter of fact, Beze created the notion of a constitution as a set of norm limitations upon executive power, or princely prerogatives. The heralded meaning of a "constitution" was the imperial command of the Emperor in Roman Law, which never developed rule of law conceptions.

The second great theoretician of rule of law was John Locke, who gave constitutionalism its eternal expression in Two Treatises of Government (1690). The basic rule of law rights of human beings--life, liberty and property--precedes the state, which arises due to a contract to introduce government to basically enforce these rights. The gist of British rule of law is the sovereignty of Parliament that makes the law in order to guarantee that basic rule of law notions are respected, but the Parliament does not have to recognize universal suffrage.

Locke was not a democrat, but Spinoza launched the first democratic theory in his Tractatus Politicus, one hundred years before Rousseau's Social Contract (1762). This Political Treatise is one of the most underestimated works in political thought, because Spinoza died a few days before he had time to finish it with a few pages. Spinoza advances a modern principle-agent argument for the superiority of democracy over monarchy as well as aristocracy. Only when persons recruited from the ranks of ordinary people rule in government can the broader interests of citizens be looked after. However, Spinoza was not a constitutionalist, as he adhered to Hobbes' conception of law as the command of the sovereign.

On the contrary, Kant launched the German version of the rule of law regime--the Rechtsstaat. Kant rejected democracy, denying the vote for women and for property-less people. In his interpretation, the Rechtsstaat could be found in a constitutional monarchy of Prussian type, which is inconceivable in the British rule of law and its emphasis upon Parliament as the law-maker--"ultra vires.' Kant theorized that rule of law was, domestically, the ultimate political achievement of mankind, and that rule of law would promote eternal peace in international relations.

III. THE BENEFITS OF RULE OF LAW

Rule of law, whether combined with any form of democracy--referendum type, parliamentary type, presidential dispensation--or not, as in semi-democratic countries that are one party state--comprises (Raz, 2009):

Predictability: Public law when properly implemented makes it possible for people to increase the rationality of behaviour. They know what rules apply, how they read as well as how they are applied consistently. This is very important for the making of strategies over a set of alternatives of action.

Transparency: Societies operate on the basis of norms prohibiting, obligating or permitting certain actions in specific situations. The rule of law entails that these norms are common knowledge as well as that they are not sidestepped by other implicit or tacit norms, known only to certain actors.

Due Process of Law: When conflicts occur either between individuals or between persons and the state, certain procedures are to be followed concerning the prosecution, litigation and sentencing/incarceration. Thus, the police forces and the army are strictly regulated under the supervision of courts with rules about investigations, seizure, detainment and prison sentencing. No one person or agency can take the law into their own hands.

Fairness: Rule of law establishes a number of mechanisms that promote not only the legal order, or the law, but also justice, or the right. For ordinary citizens, the principle of complaint and redress is vital, providing them with an avenue to test each and every decision by government, in both high and low politics. Here one may emphasize the existence of the Ombudsman, as the access to fairness for simple people. People have certain minimum rights against the state, meaning that governments respects obligations concerning the protection of life and personal integrity. Thus, when there is due process of law--procedural or substantive--one finds e.g. the habeas corpus rights.

I would dare suggest that most people in the world would want to live in a country where these precepts are respected. Only human sufferings result when they are not. Even people who adhere to a religion that rejects the rule of law regret their absence when trouble starts and anarchy or even warfare emerges. The rule of law is the greatest idea in the history of political thought, from (the much neglected) Cicero to Immanuel Kant.

IV. SPREAD OF THE RULE OF LAW REGIME

In the 21st century, the occurrence of the rule of law regime may be mapped with the WB index. As Figure 1 shows, less than half of the countries in the world score above 0.

The rules of RL can only be implemented with a high probability when there is social order within society and political decentralisation within the state. The implementation of the rules of RL requires a level of political stability that anarchical or anomic societies cannot support. Moreover, dictatorships, such as Communist regimes, will suppress the institutions that harbour RL, out of fear for their own survival. Finally, governments in so-called rogue states despise the entire philosophy of RL aiming at restraints upon the exercise of state power.

The rules of RL will, on the contrary, often be implemented, at least partially, in the following polities: democracies and constitutional monarchies, benevolent one-party states. Even Gulf States, such as Dubai, Kuwait and Oman, honour the rule of law to some extent, as they must respect the presuppositions for contract making in Common Law. The same applies to Singapore and Hong Kong.

Disconnecting RL from democracy, one may map the occurrence of RL against the background of the GDP of a country, i.e. rich and poor countries, often employed when mapping democracy. Figure 1 shows the implementation of RL in countries ranked according to their GDP.

Affluence is no doubt a strong determinant of the implementation of RL. Directly, affluence provides the resources necessary for operating the mechanisms of RL, such as paying judges, reducing the temptation of corruption and embezzlements among bureaucrats, and funding agencies for human rights. Indirectly, affluence promotes the probability of the democratic regime, which in turn requires RL.

Yet the old modernisation theory of Lipset (1959) and Diamond is no longer as relevant. Many Asian countries have had a marvelous economic expansion, but the rule of law is lagging behind. Let us examine the implications of culture for the implementation of rule of law principles. What would be the basic social requisites for introducing and enforcing the rule of law?

V. BASIC REQUISITES FOR RL

One may enquire into which sets of countries have low scores on RL according to the WB measurements. Looking at sets of countries may be a way to capture political culture, as it bypasses individual country characteristics that may be entirely contingent. If a country suddenly suffers a coup d'etat or an invasion from another country, the probability of RL is temporarily decreased. If a set of countries score low on RL but share some basic characteristics, then one may be inclined to link them with the absence of RL.

Examining Figure 1, one observes low scores for the following sets of countries:

--Sub-Saharan Africa

--Arabia and Non-Arab Moslem countries

--Russia and Central Asia--the Khanates

--South-East Asia: China, Vietnam, Laos, Mongolia and Myanmar (up to 2015)

--Several Latin American nations.

Concerning the Communist or Socialist set of countries, the explanation is simply that they adhere to an ideology that is negative to RL. China has proclaimed that it wants to strengthen rule of law, but its leadership would hardly endorse full autonomy for its court system and provide its population with a strong set of negative human rights. I will concentrate upon the other three sets.

A first necessary condition for RL is, I suggest, anonymity. The principle of anonymity is a requisite for the achievement of the first principle of RL, namely legality. It applies to the basis of the legal order. The law must be enforced in an equal manner whoever the person concerned may happen to be. A political culture dominated by tribalism would violate anonymity severely.

A second necessary condition for RL is, I further propose, lex superior, meaning that at the apex of the legal order there is a basic law that has been designed so that it reflects the needs of society. It may be changed with more or less inertia as society evolves. The making of Sharia Law part of the constitution of a country violates lex superior, because it is divine law. When a country elevates divine or revealed law into the status of constitutional law, it loses the flexibility to adapt its legal order to changing circumstances. With Islamic Law in place, not only constitutional flexibility is decreased, but also the autonomy of courts and the list of human rights are restricted.

Both of these cultures--a tribal culture (lack of anonymity) on the one hand and Islamic legal culture (no lex superior)--constitute a negative for RL. And in these sets of countries listed above, a subset of countries has both these cultural items, as in Northern Africa and Central Asia. Before I marshal some empirical evidence for these two cultural hypotheses, I will spell out in more detail what a culture of tribalism, as well as religion in general, entails for RL.

VI. CLANS, TRIBES AND ETHNIC GROUPS

Although ethnicity is not easily conceptualized, theorized and measured (Gellner, 1983; Connor, 1994; Smith, 2009), as it is a most complex set of phenomena ranging from kinship structures to whole nation-states, the presence of ethnic connotations in violent conflicts in Africa and Asia cannot really be doubted. Ethnic aspects of violent conflicts may occur together with class tensions, originating in poverty, or coincide with cleavages--mutually reinforcing cleavage patterns. Yet, ethnicity is a most powerful force in social life, being conducive to the opposition between us and them. The crux of the matter is to channel the conflict between tribes and ethnic groups into peaceful mechanism of conflict resolution and conciliation.

Some scholars have pointed out that ethnicity as ethnic fragmentation is difficult to measure, especially in Sub-Saharan Africa (Collier and Hoeffler, 2002; Posner, 2004). This is due not to the fact that ethnicity is spurious, to be explained or reduced to income or animism, but to its omnipresence. One may claim that the established indices on ethnic heterogeneity or polarization does not fully tap the occurrence and depth of tribalism in countries on the African and Asian continents, especially Sub-Saharan Africa and Asia Minor as well as Central Asia.

The most basic extension of the family is the clan and the tribe, constituting primordial links among people. In turn they enter ethnic groups, especially when they are small in size. However, when ethnic groups are large, primordial ties become less relevant and social construction replaces the natural or biological links among people. In the family, the clan and the tribe, it is kinship that is the core element, whereas in huge nations the cement is a set of shared beliefs and values.

There are two typical features of clans, tribes and ethnic groups, namely kinship on the one hand and language on the other hand. The larger the ethnic group, the more language becomes the dominant feature while kinships recede in relevance. The capacity of a universal religion to break tribal ties may vary considerably. Perhaps Christianity has been the most successful in overcoming lineages and it paved the way for the coming of secular nations, i.e. large ethnic groups based much upon language. In Africa, the universal religions--Christianity and Islam--never managed to eliminate tribal ties. Islam was successful in uniting the Arab tribes into a global civilisation, although it could not overcome the clans in Arab to the same extent that Christianity did do in Western Europe. Moreover, tribalism in the non-Arab Moslem societies could not be overcome, as in the Turkish speaking civilisation in Central Asia.

In the literature on ethnicity, one encounters a few indices; they map either linguistic diversity or "ethnic" heterogeneity, meaning also the occurrence of various ethnic groups within one and the same language community. It is a drawback that no one has ventured into the construction of an index tapping tribalism and clan affiliations.

As things stand now, we know from case studies or area studies that tribalism, as well as clan structure, is very important in countries such as Saudi Arabia, Pakistan, Afghanistan and Lebanon, but there is no general agreement about how to compare countries on this dimension of ethnicity.

Below we will employ the index on heterogeneity constructed by Alesina et al. (2003). It contains country scores for two kinds of ethnic fractionalisation: language on the one hand and ethnic groups on the other hand. Thus, a country like Bolivia, where most people speak Spanish, it receives a low score on the first aspect but a high score on the second aspect due to the historically racist divisions in that country. It seems appropriate in this study to employ the ethnic fractionalisation index, although it does not capture tribalism or clan structures in particular.

To sum up: the implementation of the rules of RL will be significantly hindered when a country has a political culture where considerable tribalism or clan mentality is entrenched since long ago. Thus, ethnic fractionalisation would impact negatively upon RL. To show the immense force of ethnicity with regard to the occurrence of violent conflicts, one may list the countries that have ongoing ethnic wars or clashes--see Table 2.

This list above is not intended to be exhaustive. More countries can undoubtedly be mentioned, but the point is that ethnicity cannot be regarded as being superseded by class or religion. Ethnicity retains its great political relevance, whether conceived as sectionalism in a negative manner, or high culture in a positive way. Ethnicity has immense political consequences, from the narrow perspective of kinship or tribes to the larger perspective of nations and nation-building.

VII. RULE OF LAW AND WORLD RELIGIONS

Almost all states in the world adheres verbally to the idea of lex superior in combination with some form of higher court that may be responsible for testing changes to the RL regime in terms of constitutionality. It is true that many countries do not succeed in getting this mechanism to work properly, as the lex superior is not respected or even worse suspended. Moreover, in several countries, the judges do not possess enough power or autonomy to declare new laws, regulations or activities unconstitutional.

A number of factors may have a bearing upon the status of constitutional review in a country. Perhaps the most important one is the historical legacy of a country, forming a part of its political culture. One of the most powerful traditions is a vibrant religion. Perhaps one can say that only Islam presents such a combating religion today, given the force of secularisation, especially in Christian and Buddhist-Confucian countries. And a core element in the Islamic political tradition is Islamic law, also called Sharia (Kedourie, 1980).

RL and Islam

What has taken place in almost all Moslem countries recently is no doubt a strengthening of the hold of Sharia upon the legal system. Nothing similar is to be found in the other civilisations of the world at the turn of the century. One may even question whether it is at all meaningful to approach the concept of civilisations on the basis of a classification of world religions, as Weber did 100 years ago (Weber, 1978) and what Huntington also did recently in two books (Huntington, 1997, 2004). The process of secularisation has heavily reduced the political relevance of all three forms of

Christianity, for different reasons; and atheism, and agnosticism, have spread considerably as a result of the Communist legacy, not only in Eastern Europe, but also in Asia. On the contrary, within the Moslem civilisation, the calls for introducing or strengthening Sharia Law are on the rise, not least in the wake of the so-called Jasmine Revolution in Arabia. Thus, demands for inserting Sharia into the new constitutions of Tunisia, Libya and Egypt have been made. If this would indeed happen, it would bring the number of countries that recognize Sharia constitutionally to a record high, considering that hardly any country in other civilisations recognize religious law as part of their constitutions.

If Sharia is considered as one of the constitutional documents or perhaps even the constitution of a country, then this country faces a number of obstacles to the firm implementation of RL, such as:

--Violation of gender equality: inheritance, dressing;

--Violation of monogamy: polygamy allowed;

--Violation of religious freedom: proselytise as well as apostasy outlawed;

--Violation of economic rights: interdiction of interest taking;

--Violation of habeas corpus rights: jihad against intruders of Umma--whatever "jihad" entails;

--Violation of due process of law rights: Kadi-Justiz (Weber).

--Violation of constitutional flexibility and adaptation.

One may debate at great length which of the above violations of Western constitutional praxis present the most serious obstacles to the introduction of RL is a Moslem country. On the one hand, Sharia restricts the set of human rights in RL. On the other hand, Sharia employs a legal process that may result in arbitrariness.

It should be pointed out that Islamic Law never had any specific public law elements. Thus, it only requires of the Ruler that he be a good Moslem. Sharia accepts any procedure for the designation of the Ruler that is in agreement with the basic precepts of the Koran. It has the rudiments of a mechanism of consultation--Shura, but it has had very few constitutional implications.

One may identify a Moslem country by the majority belief of its population, covering all kinds of sects within Islam. Using this criterion, we can enumerate 52 Moslem states, although the Organisation of Islamic States includes 57 member countries and 5 observer countries. Interestingly, a preponderant majority of these countries self-designate their states as "Islamic state" (meaning Sharia as the constitution) or as "state religion" (meaning that Islam is the official religion of the country. The trend is, it seems, that more Moslem countries will opt for the designation of "Islamic state," which would reduce the probability of RL.

The Sharia or Islamic Law is revealed divine law, at least so it is believed at the moment by its followers. During the turbulent history of The Koran, its origins and authenticity has been much discussed, as at one time in the 9th century the official opinion was laid down that The Koran was manmade. However, one should--I wish to emphasize strongly--abstain from all kinds of ridicules against Islam, its great civilization and its world religious text.

What is at stake concerning Sharia is not the perfectly valid distinction between Islam and terrorism, but the unresolved relationship between faith and reason within the Moslem civilization. Sharia falls under the category of faith, whereas RL stems from reason. Only in the Moorish civilization was there a clear separation between these two fundamental kinds of beliefs: faith versus reason, as with the greatest of all medieval philosophers, namely Averroes. When Islamic countries modernized during the 20th century, they often considered borrowing from Western law, i.e. either Common Law or Civil Law, which enhanced the prospects for rule of law in the Moslem civilisation.

Now, one may have an indication of the relationship between the push for Sharia on the one hand and the probability of RL on the other hand by looking at the overall picture for the implementation of RL is Moslem dominated countries (Figure 2).

Figure 2 indicates that rule of law is unlikely in countries where Islam has a strong grip on the minds. However, it also confirms that also countries with a small percentage of Moslem believers may score low on RL. The rise of Islamic terrorism in the wake of the civil wars in Afghanistan and Iraq has made the absence of rule of law in Moslem civilization even stronger, as the number of deaths and casualties from political violence skyrockets in the Koranic civilization.

During the 20th century, Sunni fundamentalism was given a new and violent interpretation by leading Islamic scholars, notably Maududi, Qutb and Fajaj. The consequences of their theology and political theory are now experiences all over the Moslem world, and also outside of it. Arguing for complete islamisation (Maududi), the re-installation of the Caliphate (Qutb) as well as total jihad (Faraj), the Koranic civilization implodes in a daily violence of unseen proportions: Sunnis against Shias, radical Sunnis against moderate Sunnis, etc. Under oriental despotism, Islam was sometimes lenient against dissidents and harboured theological or philosophical disputes. The Millet system was actually practiced not only in the Ottoman Empire, but tolerance was also endorsed in several other Moslem countries. However, the idea of rule of law never took foot.

We have already dealt with ethnicity above, as being one negative factor for RL, but one must also look at the role of other world religions, like Buddhism, Confucianism and Hinduism, when accounting for the lack of spreading RL in the Asian civilizations.

RL and Buddhism

Analyzing the relationship between the ethical doctrines of Buddhism--both Theravada and Mahayana--and RL can be tricky. All three types of Buddhism underline the dignity of man and woman. It is not a question of submission under religion, as with Islam, but of developing a prudent adaptation to cosmological forces --suffering and yearning with Buddhism. Yet, the practice of the two main types of Buddhism was to support Oriental despotism, i.e. authoritarian rule. Of course, Moslem rulership frequently rested upon sultanismus, i.e. oriental despotism in the conception of Wittfogel. Tibetan Buddhism--Vajrayana--is special, as it supports theocracy and magic.

Buddhism underlines the dignity of the individual, but it contains no political theory about government or rulership. As long as the ruler accepts the Buddhist society and supports the SANGHA, i.e. the organization of monasteries, the political system can very well be authoritarian or a dictatorship. Buddhism intertwined with despotism very early, and developed into one of its basic pillars. Oriental despotism includes not only the Caliphates or Sultanismus with the Mongols and Turks, but covers also Buddhist Kingships all over South East Asia, as well as Chinese Dynasties.

The Buddha is everywhere, often in gigantic statutes, in order to install the primacy of Buddhist ethics with the population--its Eightfold Path. The people have to continuously show awe to the Buddha and feed the immense number of monks, preparing themselves for Nirvana. Politics is not a major concern, as long as the foundations of the Buddhist society are respected. Buddhism does not go down well with Western ideologies such as socialism, liberalism or libertarianism. Buddhism implies a type of other-worldly ascetism that trumps rule of law.

RL and Hinduism

Hinduism with its orientation towards rites and spiritual salvation could not possibly develop a philosophy of rulership under the law. It supported historically the principles or lack of them typical of Oriental despotism. Yet, once RL was imported from abroad --or exported under the guise of colonialism--, Hinduism would accommodate. As a matter of fact, the movement for independence from the British Empire quickly learned how to turn the RL mechanisms of British colonial rule to its advantage. When the new state of India was created, it would seem natural to continue and perhaps even strengthen the RL institutions. Here, one notices a major institutional difference between India on the one hand and the two Moslem states, Pakistan and Bangladesh (former East Pakistan), as only India has been able to support RL.

What is the role of Hinduism in this positive development for India? Bypassing extremist Hinduism, one may argue that the various Hindu sects refrain from politicising religion. Thus, they focus upon redemption according to a variety of approaches. The state is not called in to maintain religious rites or police religious teachings. What is sensitive for religions are its borders to other religious communities, i.e. how to relate to apostasy, prosyletism and conversion.

Rule of Law and Chinese Religions

Besides Buddhism, China harboured two major religions, namely Confucianism and Taoism. The latter went well with Buddhism, exported out of India along the Silk Road, whereas Confucianism fought hard against the Buddhist penetration. The voice of the Emperor frequently decided the status of Buddhism in the dynasty. Neither Taoism with its emphasis upon magic and Confucianism with its core idea of duty to the Emperor developed any notion of the rule of law. Both supported the basic principles of oriental despotism.

VIII. REJECTING THE WEBER THESIS

The most well-known theory about the socio-economic consequences of religious belief, when organized on the scale of world religions, is Weber's hypothesis of a link between Protestantism and capitalism. Launched in 1904, it has been intensely debated, with all three possible positions being taken by a variety of scholars:

--Correct: a link exists between Protestantism and capitalism, or in a more generalized version between the ethics of Beruf and modern rationality (Hoff and Schluchter, 1999 ; Schuchter, 1992 ;

--Incorrect: the link goes in the other direction, from Capitalism to Protestantism (Tawney, 1930, 2015; Rodinson, 2009);

--Incorrect: there is no link whatsoever (Samuelson, 1964).

This is not the place to enter this huge debate with so many prominent social scientists, but I wish to state that this Weber hypothesis, though backed by his enormous knowledge about social systems and religious beliefs, is basically out of date.

Today, when the core of the global economy has moved eastward, it would seem strangely pretentious to argue that a Western religion has a closer affinity with Capitalism or economic rationality than with the Eastern religions. Perhaps Weber may be saved by claiming that he only theorized the conditions for the rise of modern capitalism. But this limits the relevance of the theory considerably and draws us into the complexities of issues in economic history, such as:

--What is Capitalism: a drive or a set of institutions?

--What is Modern Capitalism that separates it from other types of Capitalism? Capitalist enterprises existed in China with their giant pottery factories before the coming of Western industrialization and market institutions. Similarly, the Arab merchants on the Indian Ocean and China Sea were as much driven by rational economic incentives as the great European merchant houses, which were not always Jewish, as Sombart (2001) claimed.

Modern capitalism, as the rational acquisitive motivation or as the operation of the institutions of Capitalism in Williamson's sense (1985) occurs now globally, in all the civilisations in the world. However, the occurrence of the rule of law regime, in its British version (Common Law) or its German-French type (Civil Law), truly differentiates among the civilisations today. Modern capitalism as greed is to be found everywhere (Tawney, 1922).

IX. EMPIRICAL CORROBORATION

RL cannot be introduced or upheld in a country with considerable tribalism and clan structures. Similarly, RL is not feasible in a country where Sharia has constitutional status. In many countries in the African and Asian civilisations there is both ethnic diversity and Islam. One may employ the regression technique in order to examine the impact of these factors upon RL:

--Ethnicity: The fragmentation of a country into different ethnic groups (language, race);

--Religion: The proportion of Moslems in country population; the proportion of Buddhist-Confucians in the country population;

--Affluence: GDP in 2010.

Table 2 displays the findings from an estimation of a regression equation.

The findings from this regression analysis support the theory, outlined above, focussing upon anonymity (ethnic fragmentation) and lex superior (secular constitution). Besides the standard factor emphasized in modernization theory--GDP or affluence, the social requisites also matter clearly, notably a clan society (like Syria) or a dominant religion such as Islam (for instance Saudi Arabia, Pakistan, Iran). RL today is separated between global civilisations.

LEGACY OF ORIENTAL DESPOTISM

Looking at the map of the spread of RL today, one observes the lingering tradition of the political regime of oriental despotism. Only little research has been devoted to this phenomenon that one still encounters in Arabia, several non-Arab Moslem countries, the Khanates, Russia, China and South East Asia. Oriental despotism seems to attract even Erdogan, and was brutally excersised by African dictators after Independence Day. Marx called it the Asian system, whereas Weber (2009) suggested its hydraulic (water, irrigation) conditions. I followed suit too much, being a pupil of the second and an adherer of the first. Wittfogel (1957) found oriental despotism outside of Asia, in Africa as well as the Americas. Maybe one should mention Nazi Germany and the Soviet Stalinism as late examples of an extreme form of oriental despotism.

If legal-rational authority implies rule of law in Weber's famous typology of "Herrschaft," then he could have looked for one religion supporting RL, namely his candidate for modern capitalism. Protestantism never married itself with total political power, like Islam, Buddhism and Catholicism did--only under certain periods, though.

CONCLUSION

Rule of law (RL) is a major institutional achievement, argued Kant. Most people would want it domestically and also internationally. But less than 50 per cent of the world population enjoys it. RL has strong socio-economic prerequisites: affluence, impartiality and secularisation.

Relating our findings to Weber's thesis that the couple of Protestantism and modern capitalism distinguished between civilization at his time (i.e. around 1900), we suggest that it is nowadays out of date. One may even argue that Weber missed the strong relation between Protestantism and RL. Consider Table 3:
Table 3. Religion and RL

Group 1: the Protestant legacy
Rule of Law 1.62, GDP per capita 15,696

Group 2: the Catholic legacy
Rule of Law 0.11, GDP per capita 11,360

Group 3: the Orthodox legacy
Rule of Law -0.38, GDP per capita 18,402

Group 4: the Buddhist legacy
Rule of Law 0.30, GDP per capita 18,800

Group 5: the Moslem legacy
Rule of Law -0.47, GDP per capita 13,341

Group 6: the legacy of animism
Rule of Law -0.57, GDP per capita 14,628

Source: Rule of Law Estimate 2015, http://info.worldbank.orci/
governance/wgi/index.asp


We can observe that countries with a Protestant legacy outperform all other groups of countries with a legacy from the world religions. This does constitute evidence to the effect that no other world religions can accommodate rule of law. But it is a reminder that civilisations or groups of countries may differ on other and perhaps more important things or conditions than economics, or capitalism.

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Jan-Erik Lane (1)

(1) Jan-Erik Lane has taught politics and economics at many universities around the world. He has been member of many editorial boards of political and social science journals. He has published some 400 books and articles. In 1996 (and 2009), he received the Humboldt Award by the Humboldt Stiftung, receiving also a Lady Davis Fellowship at the Hebrew University in 2006 and 2012, as well as honorary medals from Kairo University and the University of Qatar. Fellow with Public Policy Institute, Belgrade. Address: Address: 10 Charles Humbert, 1205 Geneva; 559 A, 3rd Floor, Thuya Street, 9th Quarter, Yangon. Myanmar. E-mail: ianeklane@googlemail.com

Caption: FIGURE 1. Rule of law index (RL) against GDP (N=167, Year = 2015)

Caption: Figure 2. Proportion of Moslems and RL
Table 2. Examples of Countries with Violent Conflicts having Ethnic
Aspects in Africa and Asia 2012 (ethnic groups or tribes)

Africa         Middle East        Central Asia   East Asia

Sudan (both)   Israel/Palestine   Afghanistan    Myanmar
Algeria        Iraq               Pakistan       Malaysia
Mali           Turkey             India          China
Niger          Libya              Uzbekistan     Indonesia
Chad           Lebanon            Kyrgyzstan
DR Kongo       Iran
Rwanda
Burundi
Kenya

Source: Conflict Barometer 2012-2015. Heidelberg Institute of
International Conflict Research

Table 2. Regression model for rule of law (RL)

                  Unstandardized         Standard
                   Coefficients         Coefficients

             B        Std.    Beta    t        Sig.
                      Error

(Constant)   -4,216           ,471    -8,948   ,000
ln2010       ,507     ,047    ,657    10,847   ,000
Ethnic       -,474    ,222    -,126   -2,139   ,034
Moslem       -,003    ,002    -,118   -2,192   ,030
budd2000     -,002    ,003    -,027   -,517    ,606

                  Adjusted R   Std. Error of
R      R Square     Square     the Estimate

,771   ,595       ,584         ,621331

Sources: Kaufmann, D. A. Kraay and M. Mastruzzi (2012) Worldwide
Governance Indicators; Pew Forum (2009) Mapping the Global Muslim
Population; World Bank (2012) World Bank Databank; Barrett, D. B. et
al. (2001) World Christian Encyclopedia.
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Date:Dec 22, 2016
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