Posted by: Ray Brescia | March 8, 2018

Institutions as Instruments of Democracy and the Rule of Law


On his way out of the White House, President Obama left a letter for incoming President Trump, as others had done before.  One might say this tradition has become something of an institution.

Obam’s letter read, in part, as follows:

[W]e are just temporary occupants of this office. That makes us guardians of those democratic institutions and traditions — like rule of law, separation of powers, equal protection and civil liberties — that our forebears fought and bled for. Regardless of the push and pull of daily politics, it’s up to us to leave those instruments of our democracy at least as strong as we found them.

These “instruments of our democracy” as President Obama described them—our democratic institutions and traditions—are under threat, yet those instruments may be the only way to preserve the republic and ensure the leadership of the United States in the world.  In a forthcoming piece in the University of New Hampshire Law Review, I explore some of the contours of our existing institutions and ask whether a New Legal Realist view of institutions might help us not just understand those institutions and how they interact, but also how they can help achieve such values as the Rule of Law. Here is the abstract:

With the rise of nativist policies throughout the world, the growing dangers posed by climate change and rising income inequality, and ever-increasing threats to the rule of law, many turn to what they consider to be the institutions of democracy to achieve desired policy goals.  Indeed, if one seeks to address climate change, preserve the rule of law, and reduce income inequality, functioning institutions are needed to achieve such goals.  But this institutional turn in law and policy presupposes a common understanding of institutions as well as an appreciation for the ways in which institutions may function to achieve such policy goals.  This institutional turn should evoke the discipline of comparative institutional analysis, which asks which institutional setting—typically considered to be either the political process, the markets, or the courts—is the preferred one where one can achieve such goals.  But this narrow view of institutional settings, and institutions themselves, leaves much to be desired, particularly where the scale and complexity of problems, and the policy goals one may have to address them, both grow.  Indeed, this monolithic or one-dimensional view of institutions appears ill-equipped to address the scale and scope of the contemporary collective action problems the world faces.  This Article is an attempt to develop an approach to comparative institutional analysis that recognizes the rich, multi-dimensional aspects of not only the problems institutions are asked to solve, but also the characteristics of institutions themselves. It offers a new approach to comparative institutional analysis, one that embraces a robust, and more realistic view of institutions. In turn, I hope to show that such an approach will offer a means of achieving more effective comparative institutional analysis in light of the growing scale and complexity of the problems the world faces at present, and will no doubt face well into the future.

A current draft of the article is available here.  Since it is still in draft form, comments welcome.


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