Fifteen Eighty Four

Concerns about faltering economies and political paralysis have turned into angst about democracy’s future. The Economist dedicated a feature piece to “What’s gone wrong with democracy,” while Tony Blair’s recent op-ed asked provocatively, “Is democracy dead?” Evidence from Freedom House’s annual report supports their concern: in 2014 more countries had “overall declines in political rights and civil liberties” than improved in these areas. Belief in this crisis has led to a moment of reflection about the strategies needed to bring about and sustain democratic governance and the rule of law. In particular, policy makers and commentators are questioning the assumption that once tyrants are deposed then political freedoms and the laws that protect them will naturally bloom. Instead, many societies face long growing seasons as they struggle with the compromise and transparency necessary to a functioning democracy and the rule of law. Moreover, it seems increasingly clear that even mature democracies must consciously adapt to shifts in underlying economic and technological conditions.

Even mature democracies must consciously adapt to shifts in underlying economic and technological conditions

History offers perspective on these challenges, and yet we need to learn the right lessons from history. The story of Sir Edward Coke, the subject of my recent book, demonstrates that the development of the rule of law in England had unexpected causes. Coke was an influential English lawyer, judge and parliamentarian, gifted with a profound legal intellect and deeply held principles. His career in the early seventeenth century came at a pivotal period in the growth of English ideas about its constitution. At personal cost, Coke asserted the pre-eminence of the common law in England, even over the authority of the king. Due to his advocacy of the rule of law, Coke has occupied a central place in accounts of Anglo-American political development. American revolutionaries such as John Adams regarded him as “the oracle of the law” (John Adams, The Works of John Adams (Boston, 1854), vol. 9, p. 432.). Coke’s achievement was to shape the law into a weapon to secure property and lives against absolutist rulers and their governments. Or so the story goes.

But narratives of political development that are structured as an inevitable march of political freedom tend to simplify intricate processes. They can also distort our present-day perceptions. For example, pundits fret about the difficulty of establishing democracy in the Middle East. Yet France took nearly a century to achieve stable representative government between the revolution of 1789 and the Third Republic of 1871. Coke’s experience similarly complicates more straightforward accounts of the development of English ideas about the rule of law. Coke was certainly a firm believer in the necessity of parliament. But he lived in a violent period of religious division. As attorney general he investigated conspiracies against the government, including the Gunpowder Plot of 1605. Although an advocate of personal rights, faced with this context Coke advanced so harsh an interpretation of the treason law that even the thought of harm to the monarch was worthy of punishment.

During Coke’s time as a lawyer and judge he faced practical, everyday challenges in the workings of the law that shaped his later insistence on the rule of law. For example, in the decades prior to Coke’s practice as a lawyer and his time on the bench, the English legal system had expanded dramatically. The per capita volume of litigation may have exceeded the present day. The consequences might seem beneficial: greater access to law would mean that individual rights were more likely to be protected. Instead, Coke and other members of the legal profession worried about how the law was being used by his fellow subjects. They fretted that vexatious litigants pursued needless lawsuits. Courts competed with each other for business and so stimulated the growth of litigation. When unsatisfied in one venue, parties jumped to a different jurisdiction and so created interminable lawsuits. Those with legal authority might misuse their powers to gain wealth or private ends. Important points of law were unclear or disputed. The conclusion that Coke and others reformers reached about this situation touched the rule of law: if people perceived the law as uncertain or oppressive they would lose confidence in its workings.

The consequences, Coke recognized, could be serious. The common law, in particular, exercised the monarch’s duty to give right to his or her people. If confidence were lost in the law and people became cynical about its exercise or disregarded judicial commands, then royal authority would also come into question. How then to bolster confidence in the legal system? For Coke this required wholesale reform and especially the establishment of the common law as a superior jurisdiction to oversee legal authority throughout the kingdom. This also meant the search for fundamental principles that undergirded all good law. These principles could be used to clarify disputed points of law. Similarly, Coke’s insistence on due process encouraged people to see the law as a rational, orderly system rather than an arbitrary command.

Today similar problems are apparent in mature democracies and quasi-democratic regimes. In the United States complaints are being raised about the net of federal laws that can entrap the ignorant. Prosecutors are perceived to have excessive scope in the exercise of their discretion. Perhaps most significant, the law is seen to be dissimilarly applied to ethnic groups leading to anger and a loss of confidence not only in the law, but in the law’s agents. Elsewhere “modern authoritarian” states assert that they abide by the law, but then use legal process to punish dissidents or opponents of government policies. These examples suggest one aspect of the challenge faced by emerging and established democracies. In this regard, though he lived in a very different historical period, Coke’s example is timely. His own efforts at reform suggest the necessity of conscious and ongoing attempts to protect confidence in the law. Even in Coke’s day such confidence was believed to be an essential component of orderly government. Today confidence in the law, and not simply the rule of law, has again become a crucial, if largely overlooked, foundation of democratic government.