Political Order and Political Decay (12 page)

The Stein-Hardenberg reforms finished the transformation of Frederick's personal dictatorship into a true liberal autocracy, or Rechtsstaat. The October Edict of 1807 abolished the legal privileges of the nobility, following the example of the French Revolution. Bureaucratic posts were opened up completely to commoners, and the French principle of the “
carrière ouverte aux talents
” (career open to talent) was enshrined. Patrimonial deadwood was purged from the bureaucracy, which remained an aristocracy, but one now based on education rather than birth. The employment regulations of 1817 required a classical secondary education as well as university study in law for recruitment into the higher civil service. There was at the same time a reform of the university system that had begun under Wilhelm von Humboldt prior to Jena, which would create an integrated system whereby the nation's best and brightest would be fed directly into the bureaucracy.
15
The Prussian system thus came to resemble that of France with its
grandes écoles
, or the system that the Japanese would create after the Meiji Restoration where a new academic elite would be sent directly from places like the University of Tokyo to work for the government.

The changing intellectual climate was reflected in the words of the philosopher Johann Fichte, who asserted that the nobles were “the first estate of the nation only in the sense that they were the first who ran away when there was danger.”
16
The centrality of merit as an organizing principle was embodied in the German word
Bildung
, which can be translated as “education” but encompasses a broader sense of moral self-cultivation in addition to formal learning. The idea of
Bildung
had been promoted by a generation of Enlightenment thinkers at the end of the eighteenth century, including Lessing, Herder, Goethe, Fichte, Humboldt, and above all the great philosopher Immanuel Kant.
17

THE RECHTSSTAAT

The Prussian state that had emerged by the nineteenth century and that would become the foundation for a unified Germany was the model of an absolutist dictatorship. But because the unaccountable sovereign ruled through an increasingly institutionalized bureaucracy, there was regularity and transparency in the government's behavior that over time evolved into a legal constraint on arbitrary despotism. In the end, however, the Rechtsstaat never amounted to the kind of constitutional constraint on executive power that the English achieved during their Glorious Revolution, or that the Americans were to enshrine in their Constitution. It was, however, good enough as a means of guaranteeing modern property rights and facilitated Germany's economic growth and rapid industrialization in the second half of the nineteenth century. As such, it became the model for liberal autocracy everywhere. Contemporary Singapore is sometimes compared to nineteenth-century Germany for just this reason.

The definition of the rule of law that I used in Volume 1 was law as a constraint on political power, including the most powerful political actors in the political system. I argued there that in many civilizations, the rule of law had its origins in religion, which provided both the substance of law as well as an institutionalized hierarchy of religious specialists who could interpret it. In Christian Europe, following the Catholic church's revival of Roman law in the eleventh century, a wide range of legal institutions were created centuries before the first absolutist monarch began accumulating power in the late sixteenth century. Indeed, that absolutist project was delayed and ultimately limited in scope by the strong legal traditions that prevailed across Europe.

This was nowhere more true than in Germany, which was virtually defined by legal institutions like the Diet of the Empire and the host of feudal rights and duties laid out in countless charters and contracts. The German states often seemed to spend as much time litigating against one another as fighting.

It was against this background that the new rising absolutist monarchs began trying to erode the earlier concept of law, which vested sovereignty in God (in practice, via God's agent, the church), and started to claim sovereignty for themselves. This argument was sometimes based on a divine right of kings—God's direct delegation of sovereign authority to a particular ruling house. But beginning in the mid-seventeenth century, a number of thinkers, including Hugo Grotius, Jean Bodin, Thomas Hobbes, and Samuel Pufendorf, began formulating novel theories that vested sovereignty in monarchs without appeal to religious authority. Pufendorf was particularly influential in Prussia, where he became a servant and eventually biographer of the Great Elector.

But the new secular grounding of absolutism in the state was not necessarily a boon to princely power. While sovereigns could claim absolute authority free of earlier religiously based legal constraints, the justification for this, according to these new theorists, lay in the fact that they in some sense “represented” the broader interests of the whole community. In Hobbes's
Leviathan
, for example, the monarch rules legitimately only because his authority rests on an implicit social contract by which he agrees to protect the citizens' fundamental right to life. Though the ruler is not elected, he in some sense embodies the public interest in peace and not the private interest of his family. As political theorist Harvey Mansfield points out, the state becomes an abstraction impersonally representing the whole community, and not the instrument of rule of one particular group within the society. The theoretical ground was thus laid for the distinction between public and private, which is critical to any modern understanding of the role of government.
18

All of these ideas played themselves out in the evolution of Prussian law. As the Prussian state was being built, the personal authority of the sovereign prince was seen as the source of all law. But the prince ruled through a bureaucracy, which in turn used a new body of public administrative law to express its will. Indeed, much of what constituted the civil bureaucracy in Prussia was judicial, and the most common educational background for civil servants was legal training.
19
This did not constitute rule of law in the sense above of constraint on the executive; rather, it was what is sometimes referred to as rule “by law.” In this sense it was very similar to the kind of law championed by the Chinese Legalists and embodied in various Chinese codes like those published in the Qin and Han Dynasties.
20

Strong-minded leaders like Frederick William I and Frederick II could act in defiance of law (indeed, the former, who was the father of the latter, had his son thrown into prison for a period) and faced no powerful independent judicial institution that could stand in their way. And yet ordinary citizens in their dealings with one another and with the state could expect increasingly uniform and impersonal treatment. These newly emerging civil codes incorporated a system of administrative courts that permitted citizens to sue the state when they believed they were being treated illegally by the government. In France, lower court decisions could be appealed all the way to the Conseil d'État, which could then force executive branch agencies to abide by its interpretation of the law.
21
(Administrative courts also exist in contemporary China and other parts of Asia that have adopted the civil law; see chapter 25 below.) So although the Rechtsstaat could not tell the king that he was behaving unconstitutionally, it could act as a constraint on arbitrary behavior on the part of lower levels of the government.

The Prussian state sought to create a unified system of law first through the efforts of Samuel von Cocceji, in the middle of the eighteenth century, and then by way of the great Prussian law code, the Allgemeines Landrecht of 1794. The latter, created by J. H. von Carmer and Karl Gottlieb Suarez, was perhaps the most important innovation in the civil law tradition prior to Napoleon's promulgation of the Civil Code in 1804, and sought to define the law in a way that would make the state's purposes clear to every citizen.

The Prussian Code remained a feudal document insofar as it divided citizens into three classes—noblemen, burghers, and peasants—with different rights. While peasants had the right to remain on their land, noble properties could be bought and sold only by other nobles. Carmer and Suarez wanted to turn the code into a constitutional document protecting the people from arbitrary decisions by the Crown, but they were forced to drop that paragraph by the king before its publication. While the code recognized general rights to freedom of religion and conscience in private affairs, it gave the state considerable authority to control political discussion and censor the media.
22

It took the defeat at Jena and the Stein-Hardenberg reforms to sweep away the unequal legal treatment of social classes. A particularly important reform triggered by Napoleon's victory was the opening of ownership of landed estates to all comers, which freed up land for the market economy. There was no formal expansion of representation, but the bureaucracy saw itself performing a representative function: in the words of historian Edward Gans, “The strength of the state lies in the constitutional order of administration … civil freedom lies in its legal order.” In Prussia's provinces, the office of Oberpräsident coordinated administrative agencies, chaired provincial assemblies, and served as a channel to the central government, which was now ruled more by Hardenberg's Staatsrat (state council) than by the king.
23

BUREAUCRATIC AUTONOMY AND THE PARADOX OF DEMOCRATIC ACCOUNTABILITY

One of the four criteria used by Samuel Huntington to define institutionalization is the degree to which the institution in question is “autonomous.” Institutions are autonomous if “they have their own interests and values distinguishable from those of other institutions and social forces.”
24
An autonomous judiciary thus adheres strictly to judicial norms in making decisions, rather than being under the thumb of political bosses or accepting bribes from wealthy defendants. An autonomous army can promote its officers based on military rather than political criteria. The opposite of autonomy is subordination, where an organization is effectively controlled by outside forces. The account given in Volume 1 of the Catholic church's struggle during the eleventh and twelfth centuries to be able to appoint its own priests and bishops during the investiture conflict was in effect a struggle to become autonomous from the court politics of the time.
25

There has never been a formal rule of law in China, but since the Qin Dynasty there has always been a bureaucracy. That bureaucracy operated according to written rules and created stable expectations with regard to government behavior. Millennia earlier than in Europe, China's autonomous bureaucracy was putting the brakes on certain forms of arbitrary autocratic behavior on the part of the emperors. Indeed, one Chinese emperor during the Ming Dynasty thought he should be able to raise his own army and conduct a war; the bureaucracy politely but firmly disarmed him.
26

The phenomenon of bureaucracies escaping the control of their masters is well understood by all executive agents, whether corporate CEOs, presidents of countries, or university chancellors. It is impossible to run a large organization, public or private, without a bureaucracy, but once authority has been delegated to the administrative hierarchy, the chief executive loses a great deal of control and often becomes a prisoner of that very bureaucracy. (This was the central premise of the BBC comedy series
Yes, Minister
, where the permanent secretary, Humphrey, a career bureaucrat, is able to completely stymie the initiatives of the political minister who is nominally his boss.) The more autonomous and capable the bureaucracy, the greater the potential loss of control.

So too under the Hohenzollerns. A vigorous king like Frederick the Great could intimidate the bureaucracy and make it subservient to his wishes. His famous political testament echoed the patrimonial view of France's Louis XIV, “
L'État, c'est moi
.”
27
But under his less forceful successors Frederick William II (1786–1797) and Frederick William III (1797–1840), the balance of influence shifted decisively in favor of the bureaucracy. Earlier kings had turned the bureaucracy into a powerful and cohesive status group; it was this internal solidarity that gave it a high degree of institutional autonomy. These officials increasingly saw themselves not as servants of the Hohenzollern dynasty but rather as servants of the Prussian state, a state whose interests transcended the fate of any particular occupant of the throne. This esprit de corps increased when the bureaucracy was opened after 1806 to ambitious, talented, and well-educated men from the bourgeoisie. Thus it was that one observer could say in 1799 that “far from being an unlimited monarchy,” the Prussian state was an aristocracy that “rules the country in an undisguised form as a bureaucracy.”
28
For this reason, Hegel in
The Philosophy of Right
saw the bureaucracy as the embodiment of a “universal class” that represented the whole community, as opposed to civil society, whose interests were necessarily partial and self-directed.

All effective institutions need to have a high degree of autonomy. But it is also possible to have too much of a good thing. If an army, for example, fails to give critical information to its political masters because it thinks they will misuse it, and goes on to set war aims independently, then it is improperly usurping a political prerogative. Economists understand this problem in principal-agent terms. Bureaucracies are supposed to be agents that do not have their own goals; those goals are set by the principal for whom they work. In a monarchical state, that principal is the king or ruling dynasty; in a democracy, it is the sovereign people who rule through their elected representatives. In a well-functioning political system, the agent should have enough autonomy to do its job well, but should also remain ultimately accountable to the principal. The bureaucratic autonomy that was a check on absolutist power in the monarchical period over time escaped the control not just of the emperor but also of elected legislatures as Germany democratized in the late nineteenth and early twentieth centuries.