The Jurisprudence of the Carrot and the Stick

The Jurisprudence of the Carrot and the Stick

 

Reminder Principle: We shape structure and in turn, structure shapes us – Winston Churchill’s principle.

 

If we assume that law is a kind of structure, then the same thing is true: we shape law and then the law shapes us.

 

Today we are going to see one example of this.  To understand Churchill’s principle better we need to learn a new principle:

 

New Concept:

The Jurisprudence of the Carrot and the Stick.

Definitions:

Jurisprudence = Philosophy of Law  (philosophy = 철학; Law = 법)

Carrot = Moral Authority (도덕적 권위) / Perceived Legitimacy (인식 정당성)

Stick = Coercive Authority/Coercive Force (Coercive =강제적 인; Authority=권위;

Force=강제)

Regime = 제도

Store =저장

Function:

Stick:

Coercive authority or force is highly expedient – meaning it works effectively and quickly.  It is extremely expensive (매우  싼) to use – and so over the long term, is not sustainable (지속 가능하지).

Carrot:

Moral Authority/Perceived legitimacy takes a long time to acquire – but it is very inexpensive to use and therefore it is sustainable. (sustainable=지속)

Dynamic:

Stick:

1)      The more Stick (coercive authority) a regime uses, the less the store of coercive authority it has –

  1. If I have 6 bullets, and I use 1 to exercise coercive authority, then I only have 5 left

2)      The more Stick (coercive authority) a regime uses, the less Carrot (Moral Authority/Perceived legitimacy) a regime has.

Carrot:

1)      The higher a regime’s store of carrot the higher the regimes store of stick or potential stick.

2)      The higher a regime’s store of carrot the less likely a regime will have to use Stick

3)      The higher a regime’s store of carrot, the more likely a regime’s use of stick is view as valid.

 

4)      The more competition for a regime, the more it needs to have Carrot (moral authority).

 

The existence of these two poles, over the long term, has mechanistically helped determine the shape that legal systems take on, and in particular, why Common Law and Civil Code legal traditions are the way they are, and why both of these systems emerged as they did, in the West. 

 

One of the conditions that has prevailed in the west, but not as much elsewhere, has been prolonged periods of political fragmentation.  In ancient times political fragmentation meant city states. After the ancient times political fragmentation meant nation states. Fragmentation meant competition came from outside of a state as well as inside, but external threats were always existential and in the West, never went away. Meeting those threats always involved the use of coercive force, which is always very expensive.  In order to successfully deal with the external threats, states had to make accommodations with the internal factions. A successful state had to conserve and build up its coercive capacity in order to guard against external threats. To pay for the coercive capacity, states had to draw funds from internal sources. Over the long term, to succeed along these lines, states had to have Perceived Legitimacy/moral authority.

Early Rome was essentially one such city state surrounded by hostile confederacies and other city sates. In order to survive in this environment, the early rulers of Rome were forced to create a legal and constitutional system that was enhanced their perceived legitimacy. The famous seven hill tops that surrounded Rome provided natural shelters for the people to go to, to go “on strike” which forced the rulers to make concessions.  Roman law was a great success. Rome first promulgated their law, the Twelve Tables, in 490 b.c.e , shortly after becoming a republic. Roman’s fantastic expansion followed shortly thereafter.  The Civil Code tradition is based upon the legacy of Roman law, and has spread throughout the world.

 

In regard to the Jurisprudence of the Carrot and the Stick: All legal systems and political regimes must constitute some combination, or balance, of these two kinds of authority – but some regimes are ineffective because they have poor balance between these two poles.

North Korea relies almost completely upon stick – and as a result has a big military but is a very poor country and therefore the regime’s sustainability is always in question.

United Nations relies almost completely upon carrot – and as a result has legitimacy, however, it cannot bring about enforcement of its rules quickly or easily.

After 9/11 the United States had the world’s sympathy, so it had high level of Carrot

1)      2001: Afghanistan – The U.S. applied Stick to Afghanistan. It had no problem getting the world’s support for this and it had many allies who helped them.

2)      2003: Iraq –  The U.S. then applied Stick to Iraq.  This time it had fewer allies to help them.

The Afghan and Iraq wars dragged on for most of the decade of 2000-2010

3)      2013: Syria – The U.S. wants to use stick but cannot get support from Allies nor the American people (80% do not want to attack Syria).

 

So the jurisprudence of the Carrot and the Stick helps to answer the– why does Western law dominate the fields of law everywhere? – The answer has to do with political fragmentation.  Since 476 (the end of the Western Roman Empire)  Europe has been politically fragmented. This created political competition reducing Kings bargaining power with his people. As result Western Law developed private law.

Public Law:  Relationship between people and the state (emperor)

Private Law: Relationship between people.

In East Asia, South Asia, and the Middle East – these areas were typically dominated by one great power. Therefore Public Law was more important and sometimes highly developed

The Emperor of China has no great competition. He is not worried about threats posed by other emperors or kings. Most Chinese dynasty’s end because of internal overthrow – so the field of law is dominated by public law: rules governing the relationship between ordinary people and the state (which means, the Emperor).

In the west, fragmentation created competition between Kings. Kings need money to fight and they need cooperation from their people to fight wars.

In the balance of power between king and commoner – political fragmentation gave Commoner’s more bargaining power in relation to the king. One result of this is that western law deals with relations between common ordinary people, which we call “private law”.

So political fragmentation gave the people bargaining power with the King.  One result of this in England was the Magna Carta.  The Magna Carta is kind of England’s first constitutional document. The Magna Carta  eliminated arbitrary acts by the King; It granted rights to local lords (duke’s, baron’s, earl’s, etc…); it created parliament. To get money the King then had to appeal to parliament.

Some things to remember:

  • Medieval Age: 450 to 1050 (generally)
  • Middle Ages: 1050 to 1500 (generally)
  • Medieval England and early Middle Age England were relatively small and poor country. It was independent because it was protected by the sea.  The Romans left England because it cost more than it was worth to defend it. So the King of England was always interested in having foreign lands to supplement his own.  The King always needed money to fight wars to keep his independence.
  • Common law 1189
  • Magna Carta signed 1215

– Ended arbitrary rule by the King

– Established rights to lords and to people.

– Established Parliament for raising money

 

Roles we need for today’s class:

Remember – the main questions are:

What do you want? (You can only have one thing)

What do you need?

Who do you like?

Who do you fear ? (you can have many fears)

Situation 1: Global International Situation – say around the year 1500

In Asia:

1 Emperor of China

2 King of Korea

In Europe:

3 Holy Roman Emperor (Germany and Austria)

4King of France

5 King of England

6 King of Spain

7 Protector of Netherlands

 

Stituation 2: European Intenational Situation – say around 1500

1 Holy Roman Emperor (Germany and Austria)

2 King of France

3 King of England

4 Archbishop of Canterbury

5 King of Scotland

In England:

6 Duke of York

7 Baron of Stafford

 

Situation 3: Situation for England around 1500:

1 Ordinary (common) person

2 King of France

3 King of England

4 King of Scotland

5 Archbishop of Canterbury

6 Duke of York

7 Baron of Stafford

Situation 4: Domestic situation for England 1500:

1 Ordinary Person

2 King of France

3 King of England

4 Duke of York

5 Archbishop of Canterbury

6 Business man/trader of goods

7 Judge

Today, England has only one legal system, Common Law.  In the Medieval/Middle ages in England there were many competing legal systems – here is a partial list: Canon Law (church law), the Law Merchant, local courts (the Baron’s or the Dukes court for resolving conflictys) and the Kings Law (called the Common Law).

If you have a dispute with someone – you have a choice of which court system to use. Which will you use?

The preoccupation of the King is with international politics. Sustaining this effort requires having a big army and/or navy.  These are the King’s agency for coercive force. As the Jurisprudence of the Carrot and the Stick tells us, these are VERY expensive.

So the King needs lots of money coming in, and very little going out for anything other than saving up for funding his army. Also, he wants to have a big army but doesn’t really want to use it often because that too is expensive.

The King wants money coming into his purse (treasury).  However, England has inherited Feudalism from the medieval ages.

The local lord (Baron and/or Duke) taxes the peasants (common ordinary people) and then they pass on what is left over to the King.

The King doesn’t like the local lord (Baron and/or Duke) because

1) the local lord wants to be King himself – so he is a threat to the Kings power and

2) the local lord is taking money that could go to the king.

The Baron/Duke/local lord then is a barrier between the King and the Ordinary people of England.

The King wants to squeeze out the role of the Baron/Duke/local lords.

To squeeze out the role of the Baron/Duke/local lords, the King wants to cultivate a direct relationship with the common, ordinary people.

One way he realizes he can do that is to set up his own law system – his own courts.

The King can and does hire and train his own judges and have them ride through the countryside visiting each place, maybe once a year: this is called “riding circuit.”  The legal districts in the United States are still called circuits.

The judges will then set up their own, temporary courts.  People can bring their disputes and the judges will render decisions.

Why would people want to use the King’s courts?  What do people want from a court system?

1)      They want the law to be fair

2)      They want the law to be consistent – so they can predict outcomes.

  1. They develop the principle of stare decisis.

3)      The decisions must be enforced.  (the king can do this because he has an army).

What does the King want from his common person legal system?

1)      He wants it to run smoothly and cheaply

2)      He wants it to be more attractive system than Canon Law or Local Lords and basically any other system.

3)      He wants it to be cheap.

  1. Questions, disputes put before the judges MUST BE MADE AS NARROW AS POSSIBLE (no big questions “what is love?” versus “what time is it?”)
  2. Judges make law when they render their decisions, on the spot.
  3. To keep it cheap Judges increasingly render decisions that are

i.      Fair (bias towards Justice)

ii.      Liberal (bias towards freedom or liberty)

iii.      Why this bias?  Because it is cheap

  1. Decisions with bias towards Fairness/Justice and Liberty/Freedom tend to be SELF ENFORCING – therefore the King does not have to exercise coercive force in enforcing his judges decisions.

So we see the political structure of Europe (fragmented into nation states) shaped the legal structure in England.

Some Important dates:  

43 Rome conquers England

410 Rome abandons England

400-600 Anglo-Saxons migrations

700-1000 Vikings (Norsemen) terrorize Europe

1055 Norman Invasion of England by William the Conqueror

1189 Fist precedents for Common Law begins

1215Magna Carta signed

–          Next time review history of England – Rome, Saxons, Vikings, Norman invasion.

–          How Judge’s make law (narrow questionsà Narrow decisions; stare decisis).

What the king wants from Law

1)      Enhance his moral authority

2)      Cheap, Cheap, Cheap

  1. Cheap decisions
  2. Low involvement.

3)      Increase his income

  1. King wants a society that runs efficiently and effectively.
  2. King wants a prosperous economy so he can generate more tax revenue

What the common people want

1)      Law that works, is effective, is practical.

2)      Fair / Just

3)      Liberal (maximize freedom).

4)      Consistent.

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