The religious origins of the rule of law

Summary of JOIE Article by Peter J. Hill, Professor Emeritus Wheaton College, Senior Fellow, Property and Environment Research Center. Full article available on the JOIE website.

In any discussion of the beginnings of modern economic growth the concept of the rule of law plays a crucial role. In Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (2009), North, Wallis, and Weingast list rule of law as one of the substantial differences between the natural state and the open access order. For Acemoglu and Robinson (2012) such a legal framework is an important part of what they call “an inclusive political and economic order.” The lack of such an order is the fundamental cause of the failure of nations.[1]

            Despite the general recognition of the importance of the rule of law, there is little agreement about the historical process by which it came into existence. It did become at least a partial institutional reality in certain Western economies in the late 18th century with political philosophers articulating early expressions of rule of law, articulations that were further developed and implemented over the next century. 

            In this paper I argue that an important factor in understanding the development of the rule of law was a particular belief structure, a set of norms about universal human dignity. These norms also needed to be codified in formal law and enforced by the coercive power of the state in order for the belief in human equality to have a substantial impact on economic growth. 

            The concept of universal human dignity is unusual when viewed in a broad historical and philosophical context. Almost all societies before the beginning of the first millennium operated under the assumption that people were fundamentally different in their moral standing. At the more practical level, almost every organized human group operated with exclusionary principles in terms of any form of rights, privileges, or access to power. 

            The Jewish and Christian worldviews held a different understanding of humanity. Joshua Berman (2008), a noted Jewish scholar, argues that, in contrast to other Middle Eastern societies, in Israel there was an equality of the members of the Israel polity, an equality which flowed from their covenantal relationship with God. Thereforeuniversal human dignity had a strong metaphysical grounding. Ancient Israel was the first significant social order of any size to recognize this basic human equality. 

            The Jewish concept of universal moral agency spread outside the nation of Israel by the first century BCE through a substantial Jewish diaspora. This migration affected Greek and Latin speaking urban dwellers throughout the Mediterranean region. By the second century CE there was a general understanding that Judaism embodied a unique worldview.

            With the advent of Christianity, the concept of human equality became an even more radical challenge to the prevailing philosophical idea that humans are fundamentally unequal. For instance, Aristotle held that “the relation of the male to the female is naturally that of the superior to the inferior—of the ruling to the ruled. It is thus clear that some are by nature free, so others are by nature slaves” (1946, 1254a-55a). Luc Ferry (2011), the prominent French philosopher, argues that, 

In direct contradiction [to Greek philosophy], Christianity was to introduce the notion that humanity was fundamentally identical, that men were equal in dignity—an unprecedented idea at that time and one to which our world owes its entire democratic inheritance. But this notion of equality did not come from nowhere. (72). 

            Although the fruits of human equality did not ripen for hundreds of years, the concept did have an impact on ideas about social ordering fairly quickly after the beginning of Christianity. The Apostle Paul advocated human agency and dignity throughout the Mediterranean world, arguing that the concept of all humans as God’s image bearers had dramatic implications for social ordering. 

            One of the most significant influences of universal dignity dealt with the standing of the poor. The Christian message of the responsibility for the poor led to a radical rethinking of the concept of charity which was manifested in hospitals and orphanages.      

            The concepts of moral agency and human dignity were codified in canon law and systematized by the church between 1050 and 1200. Although it reflected the influence of centuries of Roman law, canon law also developed a theory of justice based on the concept of human equality. 

            Substantive rule of law took a very long time to develop, however. Over hundreds of years human equality influenced the formation of numerous institutions and theorists presented strong arguments for the principle of universal human of equality in institutional ordering. On the other hand, there were also repeated cases of religious adherents violating the tenets of human equality. For instance, Christians were slave holders over many centuries.  Also, the role of the state in preserving order and preventing violence also meant that religion was often a part of a dominant coalition that had a monopoly on the use of coercion. Therefore the power of the state was often used to violate the very principles of universal human dignity and human agency. Only after religious conflict reached a point where it became necessary to develop a new political order did human equality find expression in a workable legal order, largely through the writings of numerous political theorists. 

            During the Enlightenment those political theorists formulated institutional forms of governance based upon the concept of human equality and limits on the arbitrary use of power. The rule of law became a reality in the Netherlands and England in the late eighteenth century.  North America followed. Other countries also instituted rule of law and it became an important way of encouraging economic growth and maintaining fundamental human rights.  


[1] This paper uses the World Bank (2003,1) definition of the rule of law:  The government itself is bound by the law;  Every person in society is treated equally under the law; The human dignity of each individual is recognized and protected by law;  Justice is accessible to all.


References

Acemoglu, D. and J. Robinson. (2012), Why Nations Fail: The Origins of Power, Prosperity, and Poverty. New York: Crown Publishers.

Aristotle, Ca (330 BCE), Politics. Trans. Earnest BarkerOxford: Oxford University Press. 1946.

Berman, J. A. (2008), Created Equal: How the Bible Broke With Ancient Political Thought. Oxford: Oxford University Press. 

Ferry, L. (2011), A Brief History of Thought: A Philosophical Guide to Living. New York: HarperCollins.

World Bank. (2003), Legal and Judicial Reform: Strategic Directions, Washington, D.C.: The World Bank.

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