There is a traditional narrative about law and legality that scholars have told, in various forms, since the late nineteenth century.1 In this telling, generalized, formal law emerged as an institutional response to sociopolitical flattening and socioeconomic distancing. As societies transitioned from “status to contract,” abandoning traditional hierarchies in favor of ideals of individual equality, formal equality before the law became more attractive.
Similarly, as economic activities expanded beyond the horizon of closely knit social networks, the institutional need for stranger-oriented transactions and collaboration created immense demand for formal legal institutions that supplied uniformity and reliability across highly diverse socioeconomic terrain.2 Correspondingly, new ideas of “law,” “legality,” and “the rule of law” emerged.
What has too often been missing from these narratives is a compelling account of the transition itself: how socioeconomic need translated into concrete political, intellectual, institutional change. The idea that demand produces supply over the long term may well be correct, but the specific mechanisms of that supply nonetheless deserve careful study, not least because it tends to affect the final institutional product in both form and substance.
In Redefining the Rule of Law: An Eighteenth-Century Case Study, Christian R. Burset provides a precisely argued, expertly documented, and intellectually sophisticated account of one such mechanism. Through an examination of legal-political dialogue in the eighteenth-century British empire, Burset demonstrates that the specific experience of colonialism generated much of the intellectual and political energy behind modern “rule of law” ideals that have gained both dialogical and institutional dominance in the Anglosphere.
While there was indeed a “rule of law” tradition that had been developed “organically” in Britain, it was a qualitatively “thicker” tradition that often indulged in nationalism and therefore emphasized British uniqueness. It was the British empire’s legal extension into its colonies, North American, Indian, and other, that decisively swung legal-political discourse towards a “thinner,” more abstract “rule of law” ideal that later become the paradigm for modern legality.
Burset’s account offers a clear “before and after” contrast. In the “before” paradigm, which his article traces to Whiggish discourses of the seventeenth century, “rule of law” was not the rule of any law that met generalized criteria, but rather a very specific ideal that was closely tailored to British institutional realities. In this formulation, the ideal had “three core features” (P. 664): first, it was “institutional specific,” in the sense that it identified not with abstract principles but with concrete British legal institutions such as juries, habeas corpus, and freehold land tenure. Second, it was often unabashedly nationalist, juxtaposing British law with negative comparisons to foreign systems. Sometimes, the “other” was the French, whose politicized judges were contrasted with supposedly neutral English juries. In other contexts, the “other” could be Spanish regimes or Asian ones. Sometimes, the comparison was not geographical but temporal, between Whig legality and England’s Stuart past.
Third and perhaps most importantly, the traditional ideal was “thick,” in the sense that it “incorporated substantive goals for society.” (P. 665.) The “rule of law” was not merely the dominance of formalized laws over amorphous politics, but more importantly the rule of good laws—laws that pursued the common good of all British subjects. Specifically, it meant the application of law to protect a measure of freedom, secure property, and equality for qualified subjects, and furthermore to promote Protestantism and the growth of industry. Law therefore became fundamentally intertwined with core religious, political and economic components of British identity.
Compared to this highly historically contextualized “before” paradigm, the “after” paradigm that Burset lays out hews much closer to modern ideals of abstraction and generalization. By the eighteenth century, a new, “thinner” ideal of the “rule of law” had become influential among legal commentators and political actors. Centering around notions of legal certainty and generalizability, this new ideal cast doubt on a number of traditional British legal institutions, including bills of attainder and even the use of judicial precedent itself.
Although not all traditional institutions appeared deficient under this new theory of law, enough did that, by the late eighteenth century, the dominant view among jurists was that British law was “defectively uncertain” (P. 672) and “potentially inconsistent with the rule of law.” (P. 678.) To be sure, ideals of certainty and generalizability played some role even in the traditional, thicker notion of “rule of law,” but there, they were negotiable aspirations, and could be occasionally diluted without perceived damage to the foundations of legality. (P. 677.) The new ideal essentially elevated them to the status of fundamental, inviolable principles, without which the entire enterprise of law and legality would collapse.
This meant, of course, that the new ideal had to drop some of the thicker components of the old ideal: given the perceived failings of traditional British legal institutions, overt nationalism gave way to more politically neutral perceptions of legal functionality. Theoretically, the new ideal would be able to accommodate concepts of the common good, but on that dimension, too, the British system was now recast as a work-in-progress. As a result, “rule of law” now became a thinner and more abstract concept, something anchored in intellectual principles rather than institutional reality.
But what mechanisms bridged this transition from before to after? Here, Burset’s article gestures towards a number of classic explanations, including the demand-supply narrative discussed at the outset of this review, but ultimately, Burset identifies the British colonial experience with legal pluralism as the indispensable force behind the shift. Starting in the eighteenth century, the British Empire began to accommodate more forms of legal pluralism in its colonies, choosing to recognize local laws and customs as legitimately enforceable rather than to force compliance with British law. Much of this was, of course, by sheer functional necessity: as became increasingly obvious with the territorial expansion of the empire, exporting British law to all of its corners required enormous amounts of fiscal and administrative investment, and all too often produced worse outcomes, in terms of socioeconomic order and compliance, than simply preserving local institutions. Correspondingly, British politics came to tolerate, even embrace a more decentralized mode of legal and political governance, thereby producing enormous amounts of institutional pluralism in the empire’s peripheries.
These on-the-ground realities demanded a certain amount of intellectual accommodation by jurists. If only traditional British law met “rule of law” standards, then the kind of legal pluralism that was now proliferating across the colonies clearly fell short of those standards, and in fact offered no hope of ever reaching them. This was a problematic idea for British elites to digest, committed as they were to the self-aggrandizing belief that they were exporting civilization and progress to the colonies.
Under these kinds of intellectual pressures, the new, “thinner” and more abstract ideal of “rule of law” as certainty and generalizability gained enormous appeal. It allowed legal and political commentators to characterize colonial legal pluralism simply as variations of “the rule of law,” thereby preserving the idea that empire and conquest were forces for progress and civilizational elevation. At the same time, this broader ideal synergized with a new, more cosmopolitan worldview among the British elite, in which they imagined themselves the masters of a universal global enterprise, rather than merely the guardians of a parochial local tradition.
Burset’s article echoes recent trends in legal history, international law, and comparative law, in which developments at the peripheries of empire have powerful feedback effects on its center. What distinguishes his account, however, is its extension of that feedback effect to the very core of British legal identity—not merely to specific institutions or politics, but to the very highest ideals of legal discourse. If “the rule of law” is the centerpiece of legal modernity, then at least one highly influential strand of its initial formation was built upon the experience of imperial expansion and governance.
This is a very powerful idea, one that Burset illustrates with due precision and empirical care. His core actors are, for the most part, familiar legal figures like Blackstone or Mansfield or major political figures like Mostyn or Hastings, but given the article’s focus on elite discourse, this is a fully defensible move. Within that rarefied sociopolitical world, the article excavates ideas and dialogues in a fairly muscular fashion, drawing out intellectual patterns, some extending across multiple decades, in a fairly direct and unapologetic fashion. Nonetheless, when the occasion calls for finesse and subtlety, such as in the temporal contrast between traditional and modern ideals of “rule of law,” the article generally supplies them with considerable skill.
One cannot help but wonder about the potential generalizability of Burset’s thesis: the experience of empire was a common one among eighteenth- and nineteenth-century Eurasian powers, and the move towards a more abstract ideal of law and legality was certainly not a uniquely British experience. One wonders, therefore, if the encounter with and toleration of institutional pluralism—something of a basic necessity for any aspirational imperial power, given the resource constraints of eighteenth-century states—had a similar effect elsewhere, pushing elite legal discourse across Eurasia, or at least Europe, in a more cosmopolitan and intellectually abstract direction. At least one other recent work on legal history, Natasha Wheatley’s The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty also points in this direction, offering an account of Hapsburg legal-political discourse as responding to experiences of institutional diversity created by empire.
Burset’s article also offers some fairly compelling insights at the level of political theory. It shows, for example, how ideological change in the realm of law occurred not in direct response to slow, gradual shifts in domestic socioeconomic circumstances, but rather to short bursts of major realignment in geopolitical position. The article does not exactly rule out the former, but it does illustrate the latter’s arguably superior political salience among British elites.
Moreover, it demonstrates the importance of internal coherence to political worldviews: to a large extent, the shift to modern “rule of law” ideals came as a result of elite ideas working themselves into a coherent, self-reinforcing whole, in which different components—about law, about imperial governance, about “Britishness”—tended to mutually support each other. Both of these insights resonate powerfully with recent research on the formulation and sustenance of political ideologies, in which ideological change happens in lurches rather than gradually, with long periods of self-entrenching cohesion in-between.3
In an era where much historical writing no longer speaks to broader issues of causality and theoretical mechanism, Burset’s article offers a refreshing divergence from the norm, tackling those issues head-on, but without sacrificing empirical richness or analytical care. It is a significant achievement, one that deserves widespread attention and engagement among the legal historian community and beyond.
- E.g., Max Weber, Economy and Society: An Outline of Interpretive Society (1978); Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (1944).
- These ideas have recently become particularly influential in the history of the corporation. E.g., Ron Harris, Going the Distance: Eurasian Trade and the Rise of the Business Corporation, 1400-1700 (2020); Taisu Zhang & John Morley, The Modern State and the Rise of the Business Corporation, 132 Yale L.J. 1970 (2023).
- E.g., David Armitage, The Ideological Origins of the British Empire (2000); Taisu Zhang, The Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions (2023).
