I. DESCRIPTION OF THE PROBLEM
The subject of the Rule of Law is usually associated with strict law enforcement, structured especially to prevent and fight criminal behaviors, including administrative (bureaucracy, police, judicial system) and political (parties, trade unions, congresses) corruption. Those who report these problems and seek their solution are justified in doing so; however, the issue of the Rule of Law is much broader than that of a police State. By limiting the scope of the Rule of Law only to issues pertaining to the legality of the conduct of public servants, one excludes many elements from the concept that are also part of the State’s legal structure.
Public safety has become one of the main concerns of Mexican society. Crime rate is hardly decreasing, at least in terms that are noticeable or satisfactory, particularly in the country’s more populated urban areas. However, this problem, albeit serious, is only one aspect of the Rule of Law. From a broader perspective, the Rule of Law can be seen as what the government branches perform in order to provide people with reasonable margins of safety; to prevent and correct distortions in the actions of the government branches, and to subject to administrative or judicial processes those who violate the laws in force.
At this point it should be mentioned that although there is no standard concept of State, there exists, however, consensus with regard to its components.1 In general terms, it is accepted that the State consists of three elements: population, territory and sovereign power. Some authors include other factors; for example Peter Häberle2 rightly adds a fourth element: the Constitution. This aspect is not doctrinarily peaceful since it is considered that the Constitution is an expression of sovereign power. Other concepts associate the State with the Law.3 However, even in this latter case it is accepted that there are territorial, temporary and personal spheres related to the validity of the rules. That is why it can be said that basically the three elements identified by the traditional theory as those forming the State are accepted.
This is a very important point since a limited meaning of the State is sometimes used, when associating it with the traditional branches of State political power: legislative, judicial and executive, although there is a trend in contemporary constitutionalism to include new bodies, called autonomous or of constitutional relevance, which also carry out State functions. However, when referring to the Rule of Law, the efficacy of the legal system is taken into account in all individual and collective relationships, not only in those where government branches are involved. Otherwise, the wide range of legal relationships established between private persons would be excluded from the Rule of Law, a point hardly sustainable nowadays.
People play two roles in the life of the State: on the one hand the laws are addressed to them, but, more importantly, the democratic dogma makes them the very source of the law. In a representative system, legislators act on behalf of those they represent, that is, the country’s population. In the democratic system of sources of law, the will of society shall always constitute the final basis. Although the dogma of popular sovereignty has also been used to justify dictatorships —let alone totalitarian systems— the fact remains that it is the basis of all modern and contemporary democratic systems. In other words, there are non-democratic systems allegedly based on the sovereignty of the people; but no democratic system is possible if it is not based on that idea of sovereignty.
This explains why some constitutional systems, according to Sieyès’ views,4 adopt a seemingly contradictory configuration of suffrage as a right and an obligation. It is a right because it pertains to the people’s sovereign power; on the other hand it is an obligation because, in representative systems, institutions could not be formed without the participation of citizens. It represents the share of each individual’s right as part of the sovereign people, while it also embodies each individual’s obligation with respect to society. Citizens exercise their right for themselves and submit to the obligation toward the rest. That is why the concept of suffrage as a function was coined when the Constitution of 1791 was being discussed.5
This digression pretends to establish that citizens, as the origin of representatives, are part of the State power branches, and at the same time the law and acts of authority are addressed to them. For this reason the well known aphorism of Abraham Lincoln, who in turn borrowed it from Mill,6 uphold that democracy is a system of government whose acts are addressed to the people but which at the same time stem from the people.
Furthermore we will later see that other elements must also be included in the concept of the Rule of Law. The legal responsibility to abide by the law does not pertain only upon the government branches; it also applies to private persons, especially when they affect or may affect the sphere of the fundamental rights of others.7
II. DOCTRINAL CONCEPTION OF THE RULE OF LAW
The concept of the Rule of Law was coined by the German doctrine of the early XIX century to mellow the effects of the Absolutist State and to offset the expansion of the French Revolution.8 In a traditional sense, it is considered that it involves submitting the government branches to the Constitution and to the rules adopted by competent authorities, in accordance with the procedures established by the Constitution itself. The very formalist criterion that prevails in this conception, led to serious distortions of the Rule of Law such as those represented by the Nazi-Fascist State and the Communist State.
It is for this reason that the original idea about the Rule of Law underwent changes, such as adding the social, political and cultural responsibilities of the contemporary State. No doubt an evolution of great importance as the current concept of the Rule of Law cannot be dissociated from the need to protect individual and public liberties; from the democratic nature found in the origin of legitimate power; from the State’s social functions, and from the relationship between law and culture, which determines the contents and the manner of enforcing the law in a specific community.
It must be taken into consideration that it is not only government functions that affect the Rule of Law. This explains why the Swiss Constitution of 1999 included the following four elements as part of the Rule of Law (Art. 5): the law is the basis and limitation for all activities of the State; the State’s activity must be on behalf of public interest and proportional to the objectives sought; State institutions and private persons must act in good faith, and the Confederation and Cantons must respect international law. It is increasingly acknowledged that private persons can also affect the fundamental rights of other private persons, and that several statutes have included the possibility of filling a suit in court to rectify these weaknesses. The writ of amparo against private persons is now permitted in Argentina and Colombia; while in Germany and Spain9 courts are admitting complaints against private persons for violation of fundamental rights.
Furthermore, and irrespective of the position adopted concerning social problems, there is a series of compulsory tasks for the State. Adam Smith, for example, believed that one of such was education.10 At present, the range of possibilities is as wide or as narrow as determined by the law in force and the public policies adopted. With regard to the democratic contents, the possibility of political forces signing agreements with an immediate effect on said regulations and policies is included. Finally, society’s cultural structure determines how the regulations are understood and enforced, and what the reaction is to public policies.
The enforcement of a law is not the result of a simple mechanical act. Government has to assess the circumstances, and citizens must also make their demands and possibilities known. One example in Mexico is the executive order concerning to the tax on high fructose.11 The government had to choose between imposing a tax to protect sugar cane growers and a tax exemption to preserve jobs in the soft-drink industry. The flexibility of the law allows its contents or enforcement to be adjusted to decisions of a political or economic nature. Of course, it is expected that such flexibility will help to solve problems, not to make them worse.
However, there is yet another major issue: uncontrolled flexibility may lead to an arbitrary exercise of power. This is particularly dangerous when no appropriate political controls are available, and the discretional margins wherewith the government branches act enable them to evade accountability. This is where democratic institutions play a decisive role in the efficacy of the Rule of Law. The paradox arises in the sense that a government with a majority in Congress is subject to less control, but faces the risk of harrowing the law, while a government without a majority in Congress is usually controlled more effectively, but at the same time it can be blocked from taking any action whatsoever. These options are not carved in stone; there are constitutional formulas that help reach a balance between the government’s efficiency and control by Congress.12 This is important for the Rule of Law.
Political control of power is one of the essential areas for the Rule of Law, both in terms of ensuring that the government branches act within the framework of their competence and preventing them from either being lenient or breaching authority when they find it necessary to refrain from enforcing a law to avoid a greater damage that would result from enforcing it. Political control rounds off the legal control exercised by the courts. Through political control, it is sought to hold the exercise of power as responsible, verifiable and assessable, and in line with the rules of competence that regulate it.
At this point it is appropriate to adopt some preventive measures regarding the juxtaposition between the principle of separation of powers and that of the Rule of Law. Although their origins and objectives are very different, in the discourse, particularly that of authoritarian systems, they were dovetailed until they seemed to be part of the same institutional project. The principle of separation of powers has provided convincing arguments to numerous upholders of the authoritarian exercise of power to avoid political and even legal controls. Occasionally the relationship between the two principles has been detrimental to the Rule of Law, notwithstanding that the separation of powers became one of the most influential elements of French revolutionary constitutionalism.13 This is one of the reasons why some constitutions and the contemporary doctrine attributes a more limited dimension to the separation of powers.14
Several authoritarian systems have defended themselves with the principle of separation of powers in order to avoid the rigors of legal and political control. The validity of the argument has been linked to the Jeffersonian democrats in the United States.15 In Mexico, this position awakened an echo since the XIX century. Even despots like Antonio López de Santa Anna, or a sanguinary usurper like Victoriano Huerta, protected themselves behind the shield of the primacy of the separation of powers. This issue must be taken seriously because, in order to be compatible, the separation of powers and the Rule of Law must adapt to each other through a suitable institutional structure. It is by all means necessary to define the spheres of competence of government branches, but the relationship among them does not entail that each acts in complete independence from the rest, creating spaces for an uncontrolled exercise of power. The misconception of that cultural and institutional ties, which influenced Mexican constitutionalism since its origins, did not allow the judicial and representative systems to reach their full potential, in detriment of the Rule of Law.
Despite its flaws, the Mexican judicial reform of 1995 progressed towards a new more decisive dimension of the judicial system. Where the representative system is concerned, the constitutional changes for its consolidation are still pending; but the composition of the political forces and their participation in Congress16 have stamped a new style on the relationship with the government. In this new interaction scheme among the government branches, a new dimension of the Rule of Law that had not existed in Mexico before is shaping up.
The Rule of Law cannot be seen from an authoritarian standpoint. To believe only a political decision suffices or, at best, a package of circumstantial measures for the Rule of Law to become fully effective, means losing sight of the magnitude of the difficulties that face it. Plato believed that the powerful always tend to go too far. According to his theory, those who corrupt power do so because they do not know how to repress their instincts or because they are certain that they will not be punished; those who do not corrupt power, do not do so only because they have the discernment to understand that their actions will not go unpunished.17 For Plato, all are morally reprehensible: the former because they act without restraint, and the latter because they simply restrain themselves fearing the threat of punishment.
III. THE RULE OF LAW AS A POLITICAL CATEGORY
For decades the idea of the Rule of Law was identified with the discourse on "law and order". From a simplistic angle the use of force enables to solve many issues; yet at the same time it may cause other problems that cannot be solved coercitively. In Argentina, in December 2001, for instance, it was evident how social pressures prevented an effective state of siege, which is the highest coactive scheme to be adopted by a State. When resigning (December 20th), President Fernando de la Rúa admitted that he could have decided to restrict public liberties to oppose social dissent to the extreme, only at the cost of a high number of victims, and he expressed the inexpedience of doing so. Shortly after, facts showed that it is possible to redirect social processes by means of strategies different from a coactive exercise of power.
To pretend that all problems are solved through coercion implies forgoing political options and limiting the threshold of tolerance. Paradigmatic political options involve negotiation, and tolerance assumes that there may be cases in which it becomes more harmful to enforce the law than not to do so. In both circumstances the State faces risks; negotiation and tolerance include acts apt to be taken as lenient with respect to crime or as weakness in the case of pressure. To be able to negotiate in politics or occasionally tolerate unlawful behaviors, government branches must essentially offer two guarantees: legitimacy with regard to the origin of those who head them and an efficient system of political control. If either of these two conditions fail, many of the government’s political actions will be carried out from the Rule of Law.
In all forms of exercising power in a democratic constitutional system there is room for political agreements which may produce an effect on the regulatory system. Frequently, these types of compromises lead to ways of interpreting or enforcing certain legal provisions. There are extreme situations in which it is preferable to refrain from enforcing, provisionally and as an exception, certain legal precepts as their enforcement would cause greater damage than their omission.18 In any case, the following elements must always be present, altogether, to accept this possibility: failure to enforce a law must be an exception; the authority’s decision must be weighed carefully; an attempt must be made to avoid greater damage than that which the enforcement of the law would cause; non-enforcement must not be the result of a government official’s negligence or leniency; in no way is non-enforcement part of a practice to derogate the law; the decision to refrain from enforcing a law must be subject to political control, and may be revoked or amended.
Circumstantial non-enforcement of a law is an important topic in the Rule of Law for some times the way to preserve the Rule of Law is precisely by accepting some exceptions to its enforcement. The first great theoretical structure set forth with regard to this subject was the Renaissance doctrine of the Reason of State,19 which was based on the Roman commissarial dictatorship20 and consisted basically of the legal possibility of staying enforcement of certain laws when it became necessary to preserve power. At present, all constitutional systems contain provisions pertaining to the state of emergency, under its many forms: state of siege, of alarm, of urgency, of emergency, of suspension of guarantees, for example.
The issue of the Rule of Law becomes more complicated on account of the policies to reduce the State apparatus. The hypertrophy of the contemporary State was caused by several factors; some concern with welfare state systems that made it necessary to expand considerably the bureaucratic structure of the states; others are related to statist processes associated with socialism and communism; and finally others involve bureaucratic inertias or simply political corruption (clientelism and co-optation, for example). As the State apparatuses became gradually dismantled, a series of actions were carried out that, inadvertently, weakened the Rule of Law.
The compression of the contemporary State includes a justifiable downsizing of the bureaucratic apparatus; but it is also characterized by the adoption of two other measures with more questionable effects: the reduction in regulatory instruments, without taking into account that fewer regulations can also leave a larger number of social processes unregulated, and rigid restrictions in public expenditure, which sometimes limit the State’s capacity to respond to unforeseen social problems. Furthermore, as an undesired result but one that was achieved, the political rhetoric focused on explaining the reasons to compress the State’s apparatus has exposed political officers as being part of the circle of corruption and inefficiency. It is impossible to isolate the negative impact of this image, and therefore it also affects political parties and congresses. If it is taken into consideration that it is precisely parties and congresses that process the set of laws in force in a State, it will also be understood that their disqualification as essential institutions in a representative system is significant. This explains the increase in the number of non-governmental organizations; the demand by citizens under no (apparent or real) political obligation in the forming of the "autonomous agencies" for greater participation; the proposal of instruments such as plebiscites, referendums and even recalls, as part of a process associated with empowering citizens, and with the "participative democracy" euphemism.
IV. ENDOGENOUS AND EXOGENOUS PROBLEMS OF THE RULE OF LAW
All systems have difficulties pertaining to the Rule of Law caused by internal and external factors, which limit or obstruct law enforcement. Basically, these problems are related to economic, social, political or cultural issues. In the case of Mexico, endogenous problems are due to a wide range of phenomena that have not yet been studied properly through empirical means. In general, the subject of the Rule of Law is envisaged from a formalistic point of view, which precludes a grasp of its wide range of implications. Only a few of the circumstances that have a direct impact on the Rule of Law will be mentioned in this section.
The relation among economic order and the way in which law is enforced has been the subject of many studies.21 With reference to the relation between the law and social reality, it is fundamental to understand the Rule of Law. If the precept is dissociated from those to whom it is addressed, and if there is no awareness of the need for a link between the former and the latter through which each member of society can identify with the regulatory system as a whole, regardless of what each law provides specifically, it is virtually impossible to understand the Rule of Law. Paul W. Kahn,22 for example, developed a convincing argument to the effect that the legal system plays an essential role in the cohesion of societies formed by immigrants. When a community with a large number of immigrants of different national origins faces the need to share values, it finds them in the legal system. On the other hand, when the cohesion is based on ancestral cultural values (language, religion, history, customs, traditions, symbols), law is not necessarily a priority; there are other ties better known and more stable with which the community identifies. Paradoxically, it is mistrust, or at least, ignorance with regard to each other, which acts as a catalyst to find an area of agreement in the law that allows coexistence. While there are other referents missing, the only way to solve differences is through a law compulsory to all. The law in this case has a great power of condensation, which in other circumstances is attained through relationships based on tradition.
Despite certain factors of heterogeneity, Mexican society does not offer the huge dissimilarities found in societies with large numbers of immigrants. Furthermore, from the XVI century, the first Western shared values imposed on Mexican society were religious, not legal; it was a cultural fact that fostered the consolidation of the colonial system, using, inter alia, the great cohesive power of the collectively accepted symbols.23 As a consequence of that circumstance, during the XIX century, even though it was an independent country, Mexican society did not identify itself with the legal order. Yet it was not due only to the preeminence of religious values, but also to the fact that the series of constitutions and political plans (the difference between the former and the latter was hardly clear to most of the people) were associated with unstable governments and successive civil wars. The legal system did not provide either security, peace, or the best living standard for any of the social strata; whenever constitutional order was invoked, there was armed upheaval.
In a culturally more complex society, such as Mexico today, additional factors affect the collective perception of the law. For decades it was believed that the Constitution was violated systematically. Whether it was not entirely true, what is nevertheless relevant is that it was an effective argument for a long period during the hegemony of a single political party. Its prolonged presence aroused suspicions in terms of its legitimacy, and although throughout the years certain rites and republican forms were observed, there was a feeling of impotence with respect to the unmovable political control. The trend towards conformism on the part of those who accepted beforehand the uselessness of appealing to legal electoral procedures, and the denaturalization of the vote as a civic instrument of expression, also eroded the collective perception of the law. It is evident that this had a direct impact on the Rule of Law in Mexico.
The secularization of power and the shaping up of the Mexican State are relatively recent events. The country’s institutionalization is a still pending task-one in which some progress has been achieved, but which has not yet been completed. In the economic field the concentration of income is higher than the average in institutionally developed countries; social tensions are expressed more abruptly; educational deficiencies are greater. There is a strong tendency in Mexico toward entropy, which has been impossible to offset in the legal system because it is basically a cultural issue. All of this, as endogenous problems of the Rule of Law.24
There are also some conclusions with reference to the exogenous problems. Mexico’s relationship with the major world powers has not been symmetrical. During the course of its life as an independent country, there have been pressures and actions that raised justifiable questions about the value of laws to uphold national security. Even though attempts may be made to avoid the subject, remains the fact that Mexicans are keenly aware that they have been botched of large part of their territory; they know they have been maimed by foreign invasions; they know they are discriminated against in the United States.25 Beyond ideological assessments, large parts of the population suffer the effects of a strict immigration policy based on enforcement of the argued Rule of Law.26 Here again, social perception can only be negative. Since September 11, 2001 one must add to this phenomenon, of endemic recurrence, the response of the American government to that despicable act of terrorism. Ronald Dworkin has said27 that even more serious than the collapse of the Twin Towers is the demolition of the Rule of Law in the United States. He refers specifically to the USA Patriot Act of October 25, 2001, and to the measures restricting liberty and due legal process, in detriment of foreigners, adopted by the U. S. A. federal agencies following presidential orders.
In other areas, some situations arising as a result of the Free Trade Agreement with Canada and the United States also contribute to create a negative perception of the legal system. Perhaps by chance or merely by coincidence, the fact remains that since that relationship was established wage conditions are tougher and many expectations based on that Agreement, such as free transport of goods, have not materialized. Furthermore, non-tariff barriers, which render some of these clauses ineffective, also represent an obstacle for many Mexican exporters. Consequently, both trade unions and small and medium producers are staggered by a bewildering perception of incompatibility between reality and the legal system regulating international trade.
More serious still were the effects of the Mexican 1994-1995 economic crisis. As a result of its sharp currency devaluation, and the international pressure to return funds to foreign investors, the country had to go into heavy debt to meet its commitments. The Rule of Law was not affected from the external point of view, but prevailing interpretations led internally to the conclusion that the crisis was due to the fact that the law was not enforced. Although the renegotiation of liabilities allowed some individuals and companies to settle their situation, there were also many who saw their assets seriously affected. It is inevitable that this type of setbacks lead to questions about the suitability of the laws: whether the damage is the result of the enforcement or non-enforcement of the laws is more or less irrelevant when it comes to explaining to people why they have lost a large part of their assets or income on account of reasons for which they are not to blame. This is a problem for the Rule of Law, since partially stems outside from the national legal system.
Historically, internal and external experiences have made Mexican society consider the State as a trauma. The negative perception of the State in Mexico has been strong and lasting. Corruption, electoral fraud, episodes of repression, abuse of power, cynicism and abjection among politicians, became elements which society identified as characteristic of the Mexican State. It may be, as in any other generalization, that in many cases this image failed to match reality; but at any rate the social factor is significant to accept the idea of the State. On the positive side, the Mexican State has sought a favorable image through public works, welfare state programs based on the social rights established in the Constitution, and through a foreign policy that makes Mexican society feel that its sovereign rights are being defended effectively.
Yet the balance tends to improve, particularly as democratic processes have been added to the series of positive factors. New institutional behaviors, such as those pertaining to human rights, are also increasingly influencing to overcome the trauma with regard to the State. However, not all risks have been eliminated. A democratic and legal idea about the State cannot be reconstructed as quickly as would be desired. The dying embers of the aforementioned trauma still play a negative effect on the living conditions of Mexican society. In the sphere of justice, for example, the distrust with regard to the State, whose arbitrary acts had to be curbed, led to build a large defense apparatus by the individuals against the administration. Conceived initially to protect the weak, it has become an instrument to defend the cunning. Guilt or innocence play a secondary role, while defense instruments allow a large number of people to evade justice; people who, although they have committed crimes, know how to use in their favor the numerous defense instruments provided by the Mexican legal system.
Impunity has become one of the most vulnerable issues in the Mexican legal system. As a result of exasperation, there are those who lean toward increasing the severity of the punishments. There is no awareness that the crime rate does not refer to the severity of the punishment is, but to the number of criminals punished.28 It is here where the efficacy of a regulatory system resides and offers society the possibility of reestablishing reasonable levels of public safety. This must be understood when seeking to adopt measures to give a different profile to the Rule of Law. The trauma with regard to the State must give way to the conviction that it is through the State, acting in accordance with the law, that social coexistence is possible.
In our time, the Rule of Law is closely related to the way power is controlled. Although the many types of controls29 there is a tendency to consider extending the list of control instruments in the Constitution, we must bear in mind that one of the phenomena that has undermined the Rule of Law in Mexico, is the casuist structure of the Constitution. To have an idea of how much detailed components have grown in the supreme law, it suffices to see that in 1917 the original document contained 23,138 words, while at present it contains 46,288; that is, twice as many.
Another aspect that we must underline is the large number of laws to which a society is subject. In federal systems, for example, there is a double legal process, and although in normal conditions of the relationship between those who are governed and those who govern are homogenous, there may be cases in which this situation is not true. The contrast between the positivity of federal and local laws influences the perception of the Rule of Law. Sometimes people feel more protected when certain matters come under either federal or local jurisdiction, depending on the case. Additionally, and even when we recall that both the federal and local legal systems are equally suitable, there is also the problem of the many provisions that regulate, in a different way, similar institutions. This occurs in civil and criminal matters, for example, where each state in the Federation issues its own provisions. The variety in the laws is the result of the legislative functions of each state in the Federation; but the lack of regulatory consistency affects in turn those to whom the rule is addressed because it makes it difficult to be knowledgeable about a set of laws, in detriment of the legal culture.
In the international field there are also intense legislative activities for different reasons. In some cases, it is the result of integration processes, such as in the European Union; economic association, like free trade agreements; cooperation; financial regulation, or human rights expansion, just to name a few. This international legislation, adopted by states through different acceptance processes, subjects the government branches and those who are governed to multiple statutes. A regulatory system with these characteristics makes the Rule of Law very complex, and this is not always seen by the government branches or by society itself.
Finally, one must also remember another factor that makes the operation of the Rule of Law even more difficult: regulating scientific and financial processes, which in themselves are very controversial. In the financial area, for example, controlling international flows is a source of debate between those who believe they must be regulated and those who feel that no measure should be taken to restrict them. It is a major problem from the point of view of the Rule of Law because depending on what is decided, numerous and large financial transactions will be left either inside or outside the legal system.30 Furthermore, scientific innovations raise legal and ethical issues, the discussion of which will take time. These issues include euthanasia, cloning for therapeutical purposes and genomic medicine, for example. Leaving them unregulated, prohibiting them, or including them in the legal system entails different consequences in each case for the Rule of Law.
V. PUBLIC POLICIES AND THE RULE OF LAW
Public policies are closely related to the legal system, either because they are developed to enforce the law or because their institutional viability makes it necessary to amend the law. Public policies become contradictory from the point of view of the Rule of Law when they are defined and turned into working programs without any correspondence to a law preceding them or to a regulatory amendment or innovation making them possible. However, the greatest challenge for the Rule of Law in Mexico has varied at different stages during the country’s history, and the policies adopted have pertained to the problems faced at each stage. The previous stage was about building democratic institutions, and the current stage is about safety in terms of one’s person and property.
There is, however, a question that must not be avoided: the consolidation of democracy, which is still pending, is understood as a series of institutional amendments giving permanence to and making constitutional democracy functional. This means that the risk of authoritarianism being restored still exists, particularly in view of the following: the constitutional structure, built since 1917 on the political decision to centralize power in the president of the Republic, has not been modified; the composition of the government branches and the relationship among them produces tensions that cannot be properly absorbed through the institutional arrangements in place; the representative system has still significant limitations, such as the fact that legislators cannot be reelected; poverty and the concentration of wealth emphasize the traditional contrasts in Mexican society, which exposes the system to populist episodes; pressures resulting from violent crimes lead to growing demands asking authorities respond with highest degrees of force. The problems which put greater pressure on the legal system, are violence and poverty.
Although affirmative policies are exceptions to the general rule, they provide immediate results which at least allow for standardization of institutional activities. Adopting positive discrimination policies represents a temporary and partial exception to general regulations, particularly those concerning equality. However, these policies must not be read as derogating the Rule of Law. On the contrary, thanks to positive discrimination the benefits of the regulatory system can be extended to groups who for various reasons have been left out of or excluded from the social package. The most obvious case is that of women, but many others have also been affected because of their health conditions, such as the mentally ill or the victims of AIDS; because of sexual preferences; or because of physical disabilities, for example.
Positive discrimination has challengers who associate it with a break down of the general rules, and therefore a change in the Rule of Law. This approach is based on a formalist conception of the Rule of Law, which became obsolete a long time ago. Precisely the corrections made to the traditional nineteenth-century concept, following serious distortions in the Rule of Law due to the alleged legality of totalitarian systems,31 included the need to associate the Rule of Law with social and democratic principles. That is why today it is more commonly referred to as the Social and Democratic Rule of Law. Even so, as can be seen in the aforementioned references to positive discrimination, this categorization begins to be insufficient, and it is necessary to add the cultural concept to speak of the Social, Cultural and Democratic Rule of Law.
In addition to social principles, which respond to class issues, and to democratic principles, which refer to the structure, organization and operation of political institutions, it is also necessary to include in the concept of the Rule of Law a series of important legal interests separate from those of class situations and forms of institutional legitimacy. These interests are of a cultural nature because they relate to the manner in which contemporary societies understand their role in protecting the rights of the minorities (e.g. ethnic, religious, linguistic) and overcoming situations in which different sectors of the population are at a disadvantage because of their gender, sexual preference, physical condition, lifestyle, or personal appearance.
The Social, Cultural and Democratic Rule of Law is directly related to an open society, and therefore adopting positive discrimination measures does not affect it; on the contrary, that is precisely what characterizes it. The legitimacy and stability of the institutions; the possibilities of political and jurisdictional control; the nature of the contemporary democratic State, which is not based on the idea of the majority controlling the minority, but on equality in social relations, allow the legally important interests of all members of society to find a place in the State laws. The bases of public policies, including affirmative policies, are found in a comprehensive concept of the Rule of Law.
VI. CULTURE AND THE RULE OF LAW
Although the concept of culture is very extensive and varies according to the approaches used by the doctrine, within the scope of law we can say that, generally speaking, the culture of law’s rule is the set of such elements as convictions, beliefs, perceptions, traditions, attitudes, and conducts related to the origin, operation, and development of institutions. The legal culture forms part of a society’s values in such a way that it has a direct impact on the Rule of Law. However, there is no society that is so homogenous that the aforementioned sum of components is similar for all. Therefore, we find that the legal culture has very different overtones in the same society, as in the case of Mexico. In Mexico we have not conducted empirical studies to determine how deep, shared and expanded those elements are in the national, regional and local levels, and we therefore only assume uncorroborated inferences.
That is a limitation when designing policies and institutions to meet the Mexican culture of law’s rule. That culture is extremely important in one of the main aspects of the Rule of Law: the positivity32 of the law. The combination of validity and efficacy of the rules is inherent in the Rule of Law in such a way that when circumstances arise that make the laws in force ineffective, beyond what could be considered reasonable in any regulatory system, the Rule of Law acquires nominal, more than normative, characteristics. This is an aspect directly related to a phenomenon more sociological than strictly juridical, but one which cannot be ignored when it is a matter of determining the conditions that make the Rule of Law possible.
For practical purposes, all legal systems require a policy to enhance the culture of law’s rule. There are many societies in which the community itself educates its members to respect the legal system; but there are other cases in which the community inspires a rejection of the law’s values. This negative behavior influences the attitude of those who must enforce the law and facilitates behaviors against enforcement of the legal precepts. In view of the fact that no community can develop without behavior standards, when this type of rejection takes places there is a tendency to politicize justice, and this is characterized by subjecting the courts of law to political criteria; in another stage, the opposite may happen with the judicialization of politics or transferring to the judicial apparatus decisions that are normally the responsibility of government bodies. This is a result of the questions concerning the legal suitability of the acts of government. There is also a possibility that society itself becomes tribunalized when the questioning of the work of the government branches in the legal sphere grows more widespread. At this point the criteria dictated by public opinion are those to which legal meaning is sought to be given. As can be seen, none of these three extreme cases follows a Rule of Law; they are pathological expressions that show the fragility of the legal system when it lacks the appropriate cultural grounds.
VII. FINAL CONSIDERATIONS
To strengthen the principle of the Rule of Law one must consider the cultural dimension of the legal system, and the most comprehensive formulation in this regard is Peter Häberle’s work. Any variation in social attitudes due to a free process must correspond to changes in daily behavior patterns. The efficacy and positivity of the law in a free society cannot be based only on the State’s coactive function. The promotional role of law is also relevant to induce social behaviors. In this same vein, Habermas33 upholds a convincing thesis, and one that is particularly appropriate in the case of Mexico: the role of human rights as catalysts of the Rule of Law. To the extent in which society becomes aware of the importance of human rights, acquires the commitment, and adopts the behaviors to give them positivity, a fundamental cultural change takes place for purposes of the Rule of Law. The effect of such a change is a new type of society and, therefore, of State. Laws then cease to be a distant and abstract instrument of doubtful positivity, to become one more component of culture, as professor Häberle has demonstrated.
The texture of the Mexican State is changing through the system’s democratization. As this change is progressively understood by society, there will also be new attitudes to enhance a willingness to observe the law. The Rule of Law joins the democratic idea in more than one regard. On the one hand, democracy is related to the definition of the State’s goals and procedures; but on the other, it determine the relationship between citizens and government. In many cases social resistance and reluctance concerning the exercise of power are overcome through democratic government procedures, with the resulting readiness to accept the regulatory system.
Society’s contractualist theories are based on the reciprocal relation established among all of its components. However, this connection, which becomes an identity link among the members of a political community, tends to be very weak when cohesion depends only on coercive instruments, and becomes stronger when the entire community shares goals. Society identifies itself with the regulatory system when it recognizes or assume itself as its primal source. The feeling of adhesion to the law is greater when it is understood as the result of a free, conscious and responsible deliberation in which society participates through its representatives.
The consolidation of democracy has a major role for the Rule of Law. There is a relation of synergy between democracy and the Rule of Law, and for this reason modifying the structure and operation of the government branches must be a priority for the Rule of Law to become part of the country’s political culture. The new texture of the Mexican State must correspond to the strengthening of the representative system. Electoral democracy is just a first step that leads to the second stage: without reliable electoral procedures, there is no means of having truly representative institutions since the instrument that ties the voter to the person elected is missing; but this link in itself is not sufficient either for representative institutions to operate as expected by the people. That is why, once said connection has been established, it is indispensable to move on to the following stage, to consolidate what has been achieved, and to give a new form to the State itself.
Wherever it occurs, the State reform is not a formal change, nor a change in appearance; it is a profound change that involves, among other things, a constructive relationship between the government branches and society and, consequently, a new horizon for the Rule of Law. The rationalization of power is expressed through techniques related to democratic access and to a responsible and effective exercise of power. These instruments must be well-known, public, stable, and simple; their adoption must correspond to the conviction that society is entitled to good government, understood as a group of institutions functioning as harmoniously as permitted by the agonistic nature of politics, and offering citizens a minimum of satisfactory results in terms of ideal expectations and real possibilities. A power technique that ignores the tensions found in the political struggle and does not take into account the need for effective performance, does not follow a logical pattern.
The mediating role of the law is one of the most important instruments of social cohesion. In all societies and during all periods there have been mechanisms for mediation, but only when power is secularized the State arises as mediator. In this task the Rule of Law is subsumed. The mediating role of the law and, therefore, of the State leads to a unique contradiction in our time. On the one hand, positions calling for a smaller role for the State34 in social activities are emphasized, and on the other it is demanded that the State play a stronger mediating role. The numerous arguments about the size of the State do not take into account the implications of a smaller role in terms of the Rule of Law. The relation between the two terms —State and Law— is not accidental [In German and in Spanish the term Rule of Law translates literally into State of Law]. The authors of the idea and the term35 referred to a certain form of State, subject to the legal system, which would protect it from the threat posed by the expansive wave of the French Revolution.
The Rule of Law is a concept that arose to defend the State from society, not society from the State. The purpose was to protect the State, investing its acts with the protective shield of a performance adhering to the law. The Rule of Law is, in this regard, a creation of the XIX century based on the concept of the State developed by Machiavelli; but just as the Machiavellian State did not prevent the Absolutist State, the Rule of Law in itself did not preclude the totalitarian State. That is why a conceptual change in direction was required, because of the appearance of the democratic constitutional State, which made it possible to invert the order by turning the Rule of Law into a protective principle of individual and collective liberties.
Aside from theoretical statements, there is an irrefutable fact: the need to conduct social relations through legal means. Although it is true that on the one hand there is a justified expression of reserve about the risks posed by a hypertrophic State, it is also true that there is a collective demand in all societies with regard to an aspect that only the State can provide: stability in collective relations and safety in the exercise of rights. Fundamental rights require effective guarantees to be fully observed. Only the State's apparatus can provide such guarantees. This is how the apparent antinomy arises, in that the wider range of fundamental rights, the greater the functions of the State in terms of affording guarantees.
If these historical realities are taken into account, it will also be possible to observe that the relationship between the State (in the limited meaning of the government branches) and society must adjust to the need to solve the numerous problems arising from social relations. The incremental complexity of contemporary life does not allow fewer regulatory phenomena; on the contrary, a more expeditious and detailed regulatory process is required. This issue will have to be addressed from a different point of view to that which prevailed since the last 80s when in Great Britain and in the United Sates deregulation became a major target of the State. It has been observed that the objectives in terms of public safety, freedom, and stability in social relations are not achieved by reducing the regulatory apparatus. Consequently, a different approach must be used: not deregulation, but reasonable regulation. As many rules as are necessary must be established: too many expose society to State hypertrophy, while not enough expose it to losing the bases of its cohesion.
In transactions (commercial, financial and contractual in general), in the relations with the government branches, and in the efficacy of rights (proper guarantees; impartiality, promptness, and objectivity in the administration of justice) regulation is indispensable for economic and social development. This objective requires a series of measures related to the strengthening of the legal culture and, therefore, of the Rule of Law, addressing a wide range of issues.
* In this text, the expression "Rule of law" does not correspond to what is commonly understood in English terms, but in the sense of the Spanish "Estado de derecho" or in the German "Rechtsstaat".
** Director of the Legal Research Institute of the National Autonomous University of México.
1 Although the bibliography is very extensive, see Georg Jellinek, L’État moderne et son droit, Paris, Giard & É. Briére, 1913, t. II, p. 17ff.
2 El Estado constitucional, Mexico, UNAM, Instituto de Investigaciones Jurídicas2001, p. 21ff.
3 Hans Kelsen, Teoría general del Estado [Allgemeine Staatslehre], Barcelona, Labor, 1934, pp. 21ff.
4 Sieyès coincides with A. Smith regarding the division of labor. In 1771 he wrote that "it would be impossible for each citizen to be able to carry out all of the tasks required for the well-being of our societies, and that the division of labor among different persons enables them to produce infinitely more wealth than if each type of labor, instead of occupying one class of men, were fragmented and divided among society as a whole" (p. 149). This division of labor was important to prevent the concentration of power; one of the problems faced by representative systems was to prevent having the majority concentrate "all powers at once, placing the minority under its yoke" (p. 239). Emmanuel Sieyès, Escritos y discursos de la Revolución, Madrid, Centro de Estudios Constitucionales, 1990. It is undoubtedly a coincidence between Sieyès and the Scottish professor because The Wealth of Nations was published later, and Lectures on Jurisprudence, where Smith already refers to the importance of the division of labor, although given in Glasgow in 1762, were not published until 1896. It is not very probable that Sieyès was aware of these lectures, although it is known that between 1764 and 1767, during his stay in Paris, Smith met with many French intellectuals.
5 Thouret’s speech, August 11, 1791, cit. by R. Carré de Malberg, Teoría general del Estado [Contribution à la Théorie de l´État spécialement d´après les donnèes fournis par le Droit constitutionnel français], Mexico, Fondo de Cultura Económica, 1998, p. 1119.
6 John Stuart Mill, On liberty, New York, Oxford University Press, 1991 (first edition, 1859), p. 303: "The pure idea of democracy is the government of the whole people by the whole people".
7 A. Smith, The Theory of Moral Sentiments, Madrid, Alianza Editorial, 1997, p. 414: "the stability of each Constitution depends on the capacity of each class or group to maintain its own powers against usurpation by another...", to which he added "he is not a citizen who is not disposed to respect the laws and obey the magistrate".
8 Vid. Diego Valadés, Problemas constitucionales del Estado de Derecho, Mexico, Instituto de Investigaciones Jurídicas, UNAM, 2002.
9 Vid. Alexei Julio Estrada, Derechos fundamentales entre particulares, Bogota, Universidad Externado of Colombia, 2000; Juan María Bilbao Ubillos, Los derechos fundamentales en la frontera entre lo público y lo privado, Madrid, McGraw Hill, 1997; Peter Häberle, "Los derechos fundamentales en el espejo de la jurisprudencia del Tribunal Constitucional alemán. Exposición y crítica", Revista de la Facultad de Derecho de la Universidad de Granada, no. 2, 1999; Jesús García Torres and Antonio Jiménez-Blanco, Derechos fundamentales y relaciones entre particulares, Madrid, Civitas, 1986; Pedro de Vega, "La eficacia frente a particulares de los derechos fundamentales", in Miguel Carbonell (coordinator), Los derechos fundamentales y el Estado, Mexico, Instituto de Investigaciones Jurídicas, UNAM, 2002. This material studies in depth the German Drittwirkung der Grundrechte doctrine.
10 Investigación sobre la naturaleza y causas de la riqueza de las naciones [Inquiry into the nature and causes of the wealth of Nations], México, Fondo de Cultura Económica, 1958, p. 695.
11 Executive order granting an exemption from the payment of taxes indicated and extending the tax incentive mentioned, Official Gazette, Mexico, March 5, 2002.
12 Vid. Diego Valadés, El control del poder, Mexico, Porrúa-UNAM, Instituto de Investigaciones Jurídicas, 2000, esp. pp. 435ff.
13 Article 16 of the Rights of Man and of the Citizen of 1789 states: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no Constitution at all".
14 Many constitutions, particularly those drafted during the last decade of the XX century, abandoned this categorization, among other reasons because the number of government bodies considered constitutionally relevant and not part of the traditional three branches has also grown. This is the case of central banks, and electoral and human rights agencies.
15 In Marbury vs. Madison, in 1803, the Supreme Court established the possibility of controlling the constitutionality of the laws. This ruling was contested because it contravened the orthodoxy of the representative system, since judges were assuming the role of legislators by exercising a repealing power with regard to the law not granted to them by the Constitution. The debate was lost in the United States, but since the XIX century it had significant implications in Mexico, where the so-called "Otero formula" forecloses declarations of unconstitutionality of laws to have a general effect. Although a general declaration of unconstitutionality is gradually gaining ground, there still remains a way to go. The writ of amparo amendment bill, drafted by the Supreme Court of Justice of Mexico in 2001, points in that direction. This topic drew special attention in Europe following the creation of constitutional courts in Czechoslovakia (preliminary law of the Constitution of February 29, 1920, article 1ff.) and in Austria (Constitution of October 1, 1920, article 137ff), in this last case through the direct participation of H. Kelsen.
16 A useful paper to understand the prevailing situation by Alonso Lujambio, "Adiós a la excepcionalidad: régimen presidencial y gobierno dividido en México", in Jorge Lanzaro (comp.), Tipos de presidencialismo y coaliciones políticas en América Latina, Buenos Aires, Consejo Latinoamericano de Ciencias Sociales, 2001. Lujambio’s paper and those written by other social scientists in the hemisphere, show the presidential systems’ compatibility with the presence of a "divided government", in which the majority in Congress and the majority in the presidency are represented by different parties. It all depends on an adequate institutional arrangement and on political agreements flowing satisfactorily. This, of course, provided that political instruments are not rendered ineffective in order to control the exercise of power.
17 In his traditional way of wielding arguments using parables and myths, Plato (The Republic, II, 359 and 360) uses the myth of Gyges, the origin of which is unknown, in which Gyges wore a ring that made him invisible and allowed him, therefore, to take advantage of the fact that he could not be seen to obtain information and commit crimes. The myth of Gyges can also be applied to the case of a cryptostate, vigilant, spying, secretive, mysterious, that follows unwritten rules and allows modifying the Rule of Law. On his part, Aristophanes (The Birds, 750ff.) states that "all wich is disgraceful and forbidden by law is honorable among us, the birds", to conclude that those with wings could elude the enforcement of the law. Kelsen [Society and nature, London, Kegan Paul, 1946, p. 118] provides a useful interpretation of the myths from the normative point of view: "The question which mythical thinking seeks to answer are not: What is really happening; why does it have to happen that way; what can it not happen otherwise; what are the objective causes of this event? These are the questions of natural science. The myth rather attempts to find out what ought to happen and whether things do happen as they ought".
18 Vid. Diego Valadés, "La no aplicación de las normas y el Estado de Derecho", in Boletín Mexicano de Derecho Comparado, new series, year XXXV, no. 103, January-April 2002.
19 There is extensive literature on this subject, but the traditional texts are those written by G. Botero, Della ragion di Stato, and Ludovico Settala, Della ragion di Stato libri sette. A valuable modern interpretation is found in Friedrich Meinecke’s La idea de la razón de Estado en la edad moderna [Die Idee der Staatsraison], Madrid, Centro de Estudios Constitucionales, 1983; and a contemporary critical analysis is included in Gianfranco Borrelli, Ragion di Stato e Leviatano, Bolonia, Il Mulino, 1993.
20 Many Romanists have studied it, but the broadest interpretation pertaining to the contemporary State is Carl Schmitt’s La dictadura, Madrid, Revista de Occidente, 1968.
21 See, for example, Max Weber, Historia Económica General [Wirstchaftsgeschichte], Mexico, Fondo de Cultura Económica, 1964, pp. 285ff; Joseph A. Schumpeter, History of economic analysis, New York, Oxford University Press, 1954, pp. 73ff, and 759ff; id., Capitalism, socialism and democracy, New York, Harper & Brothers, 1950; John Maynard Keynes, Las consecuencias económicas de la paz, Barcelona, Crítica, 1987, pp. 147ff.
22 The cultural study of law, Chicago, The University of Chicago, 1999, pp. 9ff.
23 Cfr. Jürgen Habermas, The Liberating Power of Symbols, Cambridge, Polity, 2001, esp. pp. 17ff. The case of Mexico’s coat of arms is very illustrative; it depicts an eagle perched on a cactus devouring a serpent. With only the interpolation of the cactus, this symbol has been reproduced exactly in the same way for at least twenty-five centuries. It was used by Mazdaism to depict the victory of good over evil, and it was used during the Middle Ages, particularly in Catholic exorcism rites. Upon their arrival, the Spanish conquistadors were surprised to find that the Mexicans’ sacred animal was the serpent. Since they could not allow a pagan symbol to be worshipped in a Christian colony, they adopted a figure that was familiar to them and represented their religion, and they imposed the Christian symbol, which maintains its cohesive force to this day and continues to appear in the center of the Mexico’s national flag. This symbol incorporates the language and the myth, in the terms referred to by Habermas in his paper on E. Cassirer.
24 Several illustrative examples can be used for reference. Latinobarómetro provided the following figures pertaining to satisfaction with democracy in the year 2001: Uruguay, the highest, 55%; Mexico, 26% (Este País, Mexico, February 2002); a national survey conducted by the Instituto de Investigaciones Sociales of the UNAM and the Instituto Federal Electoral (Julia Flores and Yolanda Meyenberg, Ciudadanos y cultura de la democracia, Mexico, 2000, p. 64) shows that interest in politics is related to the level of education: 49.2% of the people with a low level of education are not interested in politics, while 41.8% of the people with a high level of education are very much so.
25 Mexicans or persons of Mexican origin in the United States represent twenty percent of Mexico’s population. A large part of the Mexican or of Mexican-descent population maintains very close emotional and economic ties with the population of Mexico: approximately 1.1 million families are sent money from the United States, and for 35% of them, it is their main source of income. Vid. Rodolfo Tuirán (coordinator), Migración México-Estados Unidos. Presente y futuro. Mexico, Consejo Nacional de Población, 2000, p. 155ff.
26 On March 27, 2002 the Supreme Court of the United States ruled that, constitutionally, migrant workers are not entitled to unionize, and can be fired for trying to do so. Hoffman Plastic Compounds, Inc. v. NLRB.
27 "The threat to patriotism", in The New York Review of Books, February 28, 2002, pp. 44ff.
28 Gary Becker has proven that an increase in the risk of being punished reduces the tendency to commit a crime. "Crime and punishment: an economic approach", in The economic approach to human behavior, Chicago, The University of Chicago Press, 1976, pp. 46ff. The marginal reduction in the advantages of crime and the marginal increase in the risk when committing a crime make the criminal rate drop. Furthermore, the author himself has studied the economic impact of crime, pointing out that it is an important source of legal employment: the hiring of judicial officers and security staff; the construction and maintenance of facilities, including prisons; the manufacturing of weapons and security equipment, transportation and communications; alarm companies, among others. This study, conducted in 1968, includes figures for 1965. That year, expenditures totalled USD$21 billion in these areas in the United States.
29 With regard to this point, I have categorized political controls as follows: constitutional and paraconstitutional; material and formal; unidirectional and bidirectional; organizational and functional; preventive and corrective; perceptible and imperceptible; based on their nature: obligatory or optional; based on their purpose: constructive or restrictive; based on their effects: bonding or indicative; based on their frequency: systematic or sporadic; based on their form: verbal or formal; based on the factors involved: collective or selective; based on when they occur: previous, ongoing or subsequent. Vide. Diego Valadés, El control del poder, Mexico, Porrúa, 2000, pp. 435ff.
30 Vid. Paul Krugman, Pop Internationalism, Cambridge, The MIT Press, 1999, and The return of depression economics, New York, Norton, 1999; Óscar Lafontaine and Christa Müller, No hay que tener miedo a la globalización [Keine Angst vor der Globalisierung], Madrid, Biblioteca Nueva, 1998; Wolfram Engels, International capital movements, debt and monetary system, Berlín, Hase & Koehler, 1984; George Soros, The crisis of global capitalism, New York, Public Affairs, 1998; James Tobin, Essays in economics. National and International, Cambridge, The MIT Press, 1996. This subject has been addressed in Mexico in the work coordinated by Marcos Kaplan and Irma Manrique Campos, Regulación de los flujos financieros internacionales, Mexico, UNAM, Instituto de Investigaciones Económicas, Instituto de Investigaciones Jurídicas, 2001.
31 Vid. Diego Valadés, "Estado de derecho", in Diccionario Electoral, San José, Instituto Interamericano de Derechos Humanos, 2000, pp. 514ff.
32 Positivity in this case means the validity and efficacy of a rule. For its part, the doctrine differentiates between valid rules, as those approved in accordance with the procedure established by the Constitution, and effective rules, as those enforced in a regular, consistent manner. Vid. Hans Kelsen, General theory of norms, Oxford, Clarendon Press, 1991, pp. 138ff, and Norberto Bobbio, Teoría general del derecho [first edition in Spanish], Madrid, Debate, 1991, pp. 33ff.
33 Jürgen Habermas, "El Estado democrático de derecho. ¿Una unión paradójica de principios contradictorios?", in Anuario de Derechos Humanos, Madrid, Facultad de Derecho de la Universidad Complutense, 2001, pp. 436ff. Along the same lines, this German professor adds that the Constitution must be understood as a project that makes the development process endure; as a process of constitutional legislation that develops during generations. This thought-provoking conception of the building of the constitutional system as an ongoing process allows us to understand the interrelation between law and culture.
34 In 1767 P. S. du Pont de Nemours published the Quesnay work under the title of La Physiocratie; ou, constitution naturelle du gouvernement le plus avantageux au genre humain, limiting the role of the State to protecting life and property, public works and developing education; in 1884 Herbert Spencer, The Man versus the State, developed a solid individualistic argument against the State, considering it an obstacle to the industriousness of private persons; in 1931 Antonio Zozaya, La sociedad contra el Estado, set forth the issue of the State’s immorality; in 1974 Robert Nozick, Anarchy, State an Utopia, spoke about the need for a "minimum State"; in 1979 Friedrich A. Hayek, Law, legislation and liberty, contributed a wide range of thoughts against the interventionist State; in 1985 James M. Buchanan and Geoffrey Brennan, The Reason of Rules. Constitutional Political Economy, highlighted that there is "a return to the skepticism of the XVIII century concerning politics and government that will concentrate our attention on the rules that constrain governments"; in 1987 Michel Crozier, État modeste, État moderne. Stratégies pour un autre changement, argued in favor a of a modest State, respectful of citizens at the service of which it agrees to act; and in 1993 Richard A. Epstein, Bargaining with the Government, developed extensively the terms of the relationship between power and individuals based on individual autonomy as a counterpoint to state power.
35 C. Th. Welker, in 1813; J. Ch. F. von Aretin, in 1824; R. von Mohl, in 1829.