Often there is a stark contrast between how the law is written and how it is put into practice in real-life. Citing a few notable examples from past and present, these differences will be explored. Does a country with limited representative government apply the law differently than those with more autocratic regimes? If so, what is the nature of this difference? In practical terms, what is more important to the average citizen – fair and just laws on the books, or a legal system that is subject to a popular mandate to ensure that law is applied fairly and justly?

Those of us who are privileged to have studied how the United States of America became the first concerted attempt to formally establish limited representative government know that it was the culmination of a long process that is still ongoing. Going back to England’s Magna Carta in A.D. 1270, it has taken many generations for the leadership and the citizenry to become acclimated to authority legitimized by popular mandate. A viable democracy requires freedom of expression, legal equality [for officials and the governed], loyal, non-violent opposition and alternate sources of information (Dahl 84-87). 

Perhaps then we should have greater appreciation for the challenges facing societies that have no comparable history of democratization and are yet struggling toward freedom. The vanquished Axis Powers of WWII – Germany, Japan and Italy – stand as examples demonstrating that an accelerated process toward free society [that knew no freedom before] can be successful with committed outside help. 

Russia and parts of the Middle East are now groping toward their own versions of limited government. It is critical to the future of world peace and prosperity that they succeed. Thus, the application of law will be reviewed in these important societies, with respect to how it is formally specified and how it is applied in actual practice. Also, there will be a comparison [as is necessary] to how law is written and carried out in the mature republican system in the West. 

Many countries in the Arab world have formally enacted constitutions, but are not strictly constitutional governments. Although the original intent for some may have been “aimed at restraining political authority,” – a fundamental aspect of ratifying a constitution – in practice such restraint “has generally been at most a secondary goal.” Taking priority instead were such considerations that constitutions may be “symbols of sovereignty,” especially in former Western colonies. They have also been used to demonstrate “basic policy and ideological orientation” (Brown 195). 

Most often in the Middle East, according to George Washington University political science professor Nathan J. Brown, written charters are implemented with the intent of “augmenting authority through establishing clear structures and chains of command.” There exists a promising potential, however. Objectively defined “rules and procedures” can serve to delineate “the difference between legitimate and illegitimate uses of political power.” Indeed, when “considering results rather than original intent…parliaments and courts have sometimes emerged as instruments of the sort of accountability that lies at the center of any constitutionalist vision” (Brown 196). 

The possibility for restraint remains only a potentiality at this point, however. Arab legislative bodies are currently denied “the possibility of establishing any autonomy” from the leadership [which are conspicuously not subject to popular mandate]. There is a modicum of judicial review and constitutional interpretation permitted, but the judiciaries are in practice subordinate to the “institutions (especially…the executive) that they are supposed to oversee.” Egypt, Jordan, Kuwait and Morocco are moving toward what Westerners would recognize as separation of powers, independent legislatures and autonomous judiciaries. In all of these cases, however, such examples of autonomy are still at this point “quite reversible” (Brown 196-7).

In practice, a “single faction” still has more likelihood of holding sway over the general population. Instead of building legitimacy by means of negotiations between “competing political forces with strong social bases,” Arab governments tend to establish political equilibrium “among different groups of rulers.” Dr. Brown offers that the prospect of true limited government will be enhanced when the leadership sees that healthy constitutionalism can actually “promise…political stability” rather than “threaten executive authority” (Brown 197). 

The obstacles for objective law are not only at the top. Deeply ingrained cultural conventions also present challenges. There is a de facto “legal dualism” that is characterized by a “traditional and…official” justice system that is especially prevalent in “post-colonial third world national states like Pakistan.” What makes this problematic is that there is a multiplicity of “different legal mechanisms [that are potentially] applied to identical cases” (Chaudhary 28). 

Thus the typical Middle Eastern state has its authority informally overlapped by various “semi-autonomous social fields” that are defined by “traditions and customs of [the] group or tribe.” In practice, there is then a hierarchal application wherein “money, influence, honour and prestige” play a significant role in determining what judicial forum will be utilized and how justice will then be implemented. There are consequently “several legal systems, at times even competing with each other.” Quaid-Azam University [Islamabad] professor Muhammad Azam Chaudhary contends that the various judicial arenas “are [in fact] nearly exclusively serving” the more “powerful sections of the community” (Chaudhary 28-9). 

The “weak and…have-nots” find themselves left to pursue justice from religious venues or by seeking “affiliation” with more “powerful” elements of society. Appealing for remedy by a village council will likely depend upon the socio-economic status of the parties involved. A lower-status ‘plaintiff’ will find great difficulty in getting the village elders to rule in his favor against a higher-status ‘defendant’ who would not necessarily be expected to adhere to an unfavorable ruling in any case. If the roles are reversed, the higher-status ‘plaintiff’ risks ostracism for “cowardice [and] increasing the importance of the [lower-ranking] opponent” by seeking relief externally. Often the use of “direct physical force” proves to be the most viable option to redress any real or perceived offense. (Chaudhary 24-5). 

Going to the police and courts is similarly stigmatized and otherwise problematic. A “brave and strong” man would not “blemish” his family’s standing by going to “uncle police” rather than fighting “directly.” Instead, the local law enforcement and justice system is more likely used for “harassing the opponent and impoverishing him.” The courts and police are also typically subject to corruption and bribery, exacerbating a paucity of legal options for those of relatively modest means. Further, such cultural phenomena as conflicting “traditional belief systems” tend to worsen the fluctuating and arbitrary nature of how law is actually applied (Chaudhary 25-7). 

Although Russia has a more similar culture to the West than that of the Middle East, there are still differences that significantly affect how law is perceived and practiced. The Renaissance and Enlightenment – and the questioning of authority structures that accompanied them -- never touched Tsarist Russia. There were no comparable Russian thinkers, explains former Politburo member [and later, dissident] Alexander M. Yakovlev, to “John Locke, Montesquieu, Diderot and Rousseau.” Indeed, with few exceptions the “intelligentsia were indifferent and even hostile toward the rights of the individual.” Thus when Bolshevism replaced the white boot from the average Russians’ collective necks with the red one, there was no great outcry for a freedom lost (Yakovlev 14). 

The Western concept of the law being an official expression of “public morals” that are enacted, developed and implemented with the “consent of the governed” has been “alien” to the Russian mind until very recently. Rather, the law has been long thought of in Russia – by the rulers and the ruled -- as state power used to “[command] obedience under the threat of being punished.” Concomitantly, there is a long-standing “tragic contradiction” in the legal culture that is characterized by a distinct bifurcation of law and conscience. There is the state-fabricated “external truth” and the “internal truth” that is produced individually “according to ethical motives” (Yakovlev 12-13). 

Consequently there is a long-standing preference among Russians to have local officials rule by ‘conscience as a father’ rather than harsh, indifferent [i.e. objectively defined] law. When this cultural mindset was folded into the communist legal system, written laws were seen therefore as vestiges of the old order. Instead, the source of moral justice was to be the proletariat and its vanguard the Communist Party. What this meant in practice was that party officials were invested with arbitrary power from which there was no tangible appeal (Yakovlev 14-15). 

The idea that rule of law could be a beneficial reality in Russia was not conceivable until 1985 when a “reform-minded coalition within the Soviet political leadership” began to assert itself during the struggle to find a successor to the recently deceased party General Secretary Konstantin Cherñenko. Previously, the Soviet legal system had a similar underlying purpose to that of fundamentalist Islamic states such as Iran and the former Taliban Afghanistan – “to preserve the political system” (Petro 219-221). [Both parties would have likely denied the similarity and purpose, of course.] 

Trained as a lawyer himself, Mikhail Gorbachev considered a path toward stability to necessarily include a nascent “reliance on law as an ideologically neutral lever” rather than the “more potent and unpredictable cultural symbols of religion and history.” Even after moderate reforms were attempted after Stalin’s death, they failed to remove the arbitrary nature of law enforcement. There were increasing internal conflicts within fragmenting government administrative groups that resulted in inconsistent application of the law – depending more and more on connections and personalities. This in turn served to “[undermine] public confidence in the law” (Petro 220-1). 

It may be tempting to forget that Gorbachev’s motivation in instituting the now-famous openness [glasnost] and restructuring [perestroika] policies was to preserve the Soviet Union with the Communist Party at its head. For various reasons [that will not be explored here], the Soviet economy could not sustain both military competition with the West and internal economic growth, so the one-party state finally collapsed (Sharlet 11-13). 

Thus we see in the Middle East, there is a cultural predisposition to eschew written law, police and the courts as a matter of pride as well as a means to avoid official corruption. In Russia, centuries-old attitudes mitigate against utilizing official law organs because they are perceived as harsh, indifferent and meant to preserve the state rather than serve the public. There is in these old societies then, deeply ingrained hostility to what we in the West would classify as government of laws rather than that of men – i.e. rule of law. 

The West is not entirely bereft of investing people with the authority to search their consciences rather than quotable statutes when applying the law, however. This is true wherever juries are impaneled and especially true in court systems utilizing common law [i.e. precedent-based] justice. The jury system exists in part to provide “an inestimable safeguard…against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge” (Guinther 220-1). 

Although a judge still traditionally instructs the jury to “follow the law as I shall state it to you…[and] forbids you to be governed by mere sentiments, conjecture, sympathy, passion, public opinion or public feelings,” there is in fact a little-known implicit right for the panel to “reject the law, for whatever reason” (Guinther 221). This issue was settled long ago in 17^th century England when a certain William Penn [the very same man who later founded Pennsylvania] was charged with “sedition and fomenting rebellion” on the streets of London (Guinther 1). 

Again and again, the jury refused to convict Penn [after repeated threats and admonishments from the bench] and the exasperated judge finally held the jury in contempt. They were then fined. Those who could not or would not pay were imprisoned until granted bail pending trial in the Court of Common Pleas. Edward Bushel and three other former jurors were found not guilty -- Chief Justice Sir John Vaughan ruled that “no jury…can be punished for its verdict” in what became known as Bushel’s Case (Guinther 26-7). 

It is not only in small groups such as juries that the law may be superseded by public sentiment. In countries wherein there is a firmly established sense of a rule of law, the public at large may rebel against legislation that is perceived to be unjust. In enacting laws against what the late libertarian activist/writer Peter McWilliams called “consensual crimes,” a small group may indeed successfully criminalize a widely practiced behavior. The results may not be what were intended. Certainly that was true in the case of alcohol prohibition in early twentieth century America with the passage of the Eighteenth Amendment and the Volstead Act (McWilliams 66). 

For decades, the Temperance Movement had been satisfied with merely preaching against alcohol consumption. Citing a religious mantle, a cadre of ‘reformers’ utilized the coercive power of government to attempt the attainment of “the perfection of mankind.” Thus we had the hypothetical specter of Jesus being “arrested for bootlegging” [for turning water into wine] and the Last Supper being “raided by federal Prohibition agents” (McWilliams 66-7). 

Given that most Americans still wanted to drink, consumption and distribution simply went underground. This in turn precipitated costly border control issues, corrupt law enforcement, moral erosion, increased alcohol consumption, increased tobacco use and organized crime problems that continue to plague America to this day (McWilliams 70-9). An objectively defined law that is implemented according to prescribed guidelines can still degenerate therefore, into arbitrariness if it is enacted for reasons of social engineering -- against the true will of the majority. 

Thus we see that even in nations wherein a strong tradition of popular government exists, there are numerous unwritten and informal means utilized to secure an orderly society. Further, there is no universally accepted perspective toward legal fairness and justice. Western society is still grappling with a debate going as far back as the ancient Greek philosophers who struggled with notions of society governed by “an enlightened individual or through impersonal law” (Sharlet 6). 

Some legal minds may consider their work to be done once the laws have been written, but in practice, certain conditions must exist if the law is to be fair and respected [rather than feared and/or flouted]. Western legal thought denotes certain essential principles such as:

• The law applies to those in authority as well as the governed.
• The law’s ultimate source is objective [not a product of individual or minority whim]
• The individual is born with certain rights, rather than granted them by an official
• A contract [written or implied] between the government and citizenry should be held as “supreme law”
• Those who judge the law should be independent from the political leadership

For all of this to work, both the leadership and the general population should have attitudes that reflect a “viable legal culture” wherein all concerned trust the legal system “as a means of peacefully mediating and reconciling political, economic and social disputes and conflicts.” A given society must be prepared to live in peace with those of different cultures, religions and/or political persuasions. ‘All or nothing’ exclusivism precludes freedom. There must be a general “willingness to compromise” and to strike a “reasonable balance…between individual freedom and public order” (Sharlet 6-7). 

Dahl, Robert A. On Democracy. New Haven, Conn: Yale University Press, 2000. 

Brown, Nathan J. Constitutions in a Nonconstitutional World: Arab basic Laws and the Prospect for Accountable Government. New York: SUNY Press, 2002. 

Chaudhary, Muhammad Azam. Justice in Practice: Legal Ethnography of a Pakistani Punjabi Village. Oxford: Oxford University Press, 1999. 

Yakovlev, Alexander M. Striving for Law in a Lawless Land: Memoirs of a Russian Reformer. Armonk, New York: M. E. Sharpe, Inc., 1996. 

Petro, Nicolai. “Informal Politics and the Rule of Law” Toward the Rule of Law in Russia? Political and Legal Reform in the Transition Period, ed. Donald D. Barry. Armonk, New York: M. E. Sharpe, Inc., 1992. 

Sharlet, Robert. Soviet Constitutional Crisis: From De-Stalinization to Disintegration. Armonk, New York: M. E. Sharpe, Inc., 1992. 

Guinther, John. The Jury in America. New York: Facts on File Publications, 1988. 

McWilliams, Peter. Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Society. Los Angeles: Prelude Press, 1993.