The NormativeZEmpirical Inversion
The analysis has noted the intriguing paradox that the posited outcome of representative institutions (shift of sovereignty to social groups) was the inverse of the conditions of emergence (high concentration of central powers).
In normative theory, separation of powers is assumed to be the ultimate desideratum; but some key representative regimes were distinguished by institutional fusion at the time of emergence. Many historical stereotypes actually stem from two common and related conceptual errors: either mistaking a consequent for a cause or mistaking a normative prescription for an empirical description. Popular sovereignty was articulated as a norm precisely because (and where) power was already effectively concentrated in the ruler’s hands. Norms of rights and power limits became predominant because (and where) power had already fewer empirical limits than elsewhere. Norms, in other words, don’t always reflect reality; they often seek to change it. I have called this the “normative/empirical inversion”; it can be discerned in practically every foundational premise of the different theoretical approaches to the topic treated in this book (Table 14.1).For instance, although private property is touted as the cornerstone of Western development, the most robust representative regime developed where conditionality of property rights was most strongly articulated, England. Similarly, while rational bureaucracy is the hallmark of effective
Table 14.1 The normative/empirical inversion
| Normative goal/posterior outcome | Empirical reality/antecedent condition | |
| Institutional dimension | Rights to social groups Separation of powers Private property Rational bureaucracy Limits to central authority “Absolute” powers Individual rights Separation of church and state Equitable distribution of land | Concentration of powers Institutional fusion Conditional rights to land Patrimonial networks Superior extractive capacity Social fragmentation Collective responsibility Subordination of church to state Concentration of land rights in the state |
state formation according to Weberian accounts, patrimonial, personalistic networks built the most integrated infrastructure, as we saw in the comparison of England with the Ottoman Empire.6 And while limits to central authority are thought to define representativeness of a regime, superior extractive capacity, especially over the most powerful actors, is what distinguished the most constitutional cases.
Conversely, absolute powers are assumed to denote state strength, but they typically reflect a level of social fragmentation that required extreme measures to be overcome.Further, the delineation of individual rights became sharper because (and where) collective responsibility was originally effectively and systematically imposed; when large numbers of individuals were united by common responsibilities the incentive to demand greater individual rights became salient. Where central authority was strong, only collective action could effectively counteract it - atomized individuals lacked power. Conversely, where central authority had weak penetration into society, the burden felt by society was relatively weak, as were the incentives - and the ability - to organize collectively to counteract such authority. The claim here is not of a necessary connection between all these conditions; groups have obtained rights without the concentration of powers observed in England. It is about a path that is neglected but generated the most sustainable polity-wide institutions.
I have already pointed out that Weber was careful to identify the distinctiveness of England.
This revision also impacts another common assumption in the literature, which has not been touched on so far: that the separation of church and state was a crucial feature of the modern representative order. The clear demarcation of a separate religious authority “accustomed rulers to the idea that they were not the ultimate source of the law,” unlike, for instance, Chinese emperors. It also “pave[d] the way for the modern secular state,” as argued by Fukuyama.[1510] Although a lack of separation is typically identified in the modern period with Catholic states that had a turbulent transition to democracy, such as Italy or Spain, many Northern European cases with highly effective constitutional regimes either still have no separation, such as the United Kingdom or Denmark, or only instituted it in the 2000s, such as Sweden or Norway.[1511] It was thus not separation from but control of the church that was conducive to a constitutional order.
The English crown’s advantage over the Church long preceded Henry VIII’s break with Rome in 1534: when in 1170 the Archbishop of Canterbury, Thomas Becket, tried to thwart the extension of royal justice over ecclesiastical members under Henry II, Henry’s followers murdered him. The lack of church-state separation accordingly cannot be blamed, for instance, for the obstacles to communal selfgovernance under Islam.[1512]The separation of church and state is instead a modern, liberal desideratum, not a necessary historical component of state and regime formation.[1513] It is not simply that canon law remained widely important in many critical areas, such as marriage, criminal law, testamentary law and probate jurisdiction, in England at least until the seventeenth century;[1514] it is that Christian laws and practices established some key conditions that structured state authority throughout Europe, especially the rule of Roman law.[1515] The Church was critical for the elaboration of the principles of representation and conciliarism,13 as well as the creation of a common ideology and language and of networks of trust and community.14 It provided the norms that connected material or technological innovations to outcomes that transformed society, as the sociologist John Hall has argued.15 Moreover, as argued here, in the very earliest stages, the “Peace of God” was critical for the pacification of territory, typically around a church, throughout Continental Europe. Gregorian chants in Romanesque churches quieted the warrior brain. This history sheds a different light on developing countries today that struggle to combine religion with effective democratic control and reinforces the need to highlight the normative/empirical inversion.
14.2