@article{2021:fogelson:the_social,
title = {The Social History of Law as a Factor of the Rule of Law},
year = {2021},
note = {The rule of law, understood as ideology and legal rules, is believed
to be a competitive advantage of Western civilization, supporting its
sustainable development. Yet it can also be viewed as a social norm of
citizens who respect the law and follow its commands. How does this
social norm emerge in different societies? This question must be
answered through the social history of the law in Western and
non-Western societies from a comparative perspective. This paper
outlines the main features of comparative socio-legal history and
tests it on some significant historical examples. In the first part of
the article, the authors propose a functional classification of legal
systems into three ideal Weberian types-the law of judges, learned
law, and the law of the authorities. It allows us to consider the
origin of the social norm of the rule of law. In the second part of
the article, the authors trace the transition from the ideal types to
natural legal systems and identify the factors that determine the
stability of the social norm of the rule of law where it originated.
In the final part of the article, the authors conclude that, first,
the social norm of the rule of law emerged in the societies where the
law had been treated either as a means of resolving disputes (the law
of judges) or as the rules of fair, correct conduct (learned law), for
example, the Roman Republic, medieval England, continental Europe, and
the Ottoman Empire. Secondly, the stability of the social norm of the
rule of law seems to be explained by a "triangle" of factors, namely:
1) political competition where all participants understand the
inevitability of compromise on the basis of the law, 2) law which is
suitable for finding a compromise due to its internal merits, 3) a
professional community of jurists who develop and apply law
independently of the administration. Such a triangle is possible in
any society where the law of judges or learned law prevails and where
the majority of participants in the political process are ready to
compromise based on the current law. / JEL Classification: K 10; K 11;
K 12},
journal = {OER Osteuropa Recht},
pages = {172--201},
author = {Fogelson, Yury and Poldnikov, Dmitry},
volume = {67},
number = {2}
}