Friedman: Roads To Democracy

ROADS TO DEMOCRACY
Lawrence M. Friedman*

INTRODUCTION

Democracy seems to be on the march in the modem world. This

has been a remarkable trend in the last two generations or so. The
victory of the Allies in the Second World War put an end to the Nazi
empire in Europe, and crushed the Japanese Empire in the Pacific.
Germany, Italy, and Japan were set on the path to democracy. In the
post-war period, all of the traditional empires disintegrated-the British
Empire, the French Empire, and others. Dozens of colonies became
free. Some of them, too, became democracies, most notably India. In
the 1970's, Franco died and democracy triumphed in Spain. Later,
there was a trend away from military dictatorship in Latin America.
South Korea and Taiwan then joined the club of democracies. The
Soviet Union collapsed, near the end of the century. Democracy took
hold in parts of this shattered empire too: in some former "satellites"
(the Czech Republic, Poland, Hungary), and in some of the national
fragments spun off from the Union (Estonia, Latvia, Lithuania). Large
parts of the world, of course, remain securely under the control of
autocrats. But the United States is (or claims to be) committed to
spreading the joys of democratic government all over the world. It even
uses this idea as the reason, or excuse, for the American presence in
Iraq.
Of course, "democracy" is not a simple concept; and no two
systems that claim to be democracies are exactly the same. The "rule of
law" is if anything an even more contested concept. For the purposes of
this paper, we do not really need to define democracy rigorously. A
society with a reasonable dose of freedom of speech and the press,
freedom of religion, more or less fair elections, and the customary
package of basic human rights, respected (on the whole) by the
government, qualifies as a democracy. These will also tend to be
societies that respect the rule of law. "Rule of law" is another concept,
which is hard to define; the phrase has many possible meanings. For
our purposes, however, it simply means a system in which rights and
duties can be enforced through an independent and reasonably impartial
system of courts. A court system is "independent" when the
government or regime has no power or inclination to affect the outcome

•Marion Rice Kirkwood Professor of Law, Stanford Law School.

Published by SURFACE, 2005 1

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

52 Syracuse J. Int'l L. & Com. [Vol. 33:51

of cases.
No country, of course, is perfect. No country can claim to be
absolutely and completely "democratic." But quite a few come close
enough to the ideal type to satisfy its citizens. On the other hand, the
"rule of law," as defined here, is much less achievable. Perhaps it is an
impossible goal. Or perhaps not a goal at all, but simply an example of
sociological naivete. That is, judges cannot simply decide "according to
the law"; cannot be neutral and impartial as most lay people imagine
they ought to be. Norms, values, attitudes, and the politics of the
situation are always a factor in the behavior of judges. Nonetheless,
there is a critical difference between totalitarian societies, in which a
defiant decision can cost a judge his head, or in which higher authorities
dictate the results (at least in politically charged cases); 1 and democratic
societies, where judges have long tenure or life tenure and are free to
disregard what the people in power might want them to decide.
If we look around the world, we see some gray areas--countries
which are on the brink of democracy but not quite there; or countries
that have been there and lapsed; or countries whose membership in the
club of democracies is somewhat doubtful. Still, I think there would be
general agreement about the core membership of the club. It would
include most of the rich, developed countries: the United States,
Canada, all of Western Europe, Japan, Australia and New Zealand,
Chile, and Costa Rica in Latin America, along with quite a few other
countries. If we were willing to relax our definition, even slightly, we
could include a great many more.
Each country has its own distinctive history, of course, and each
one has traveled a unique path to its form of democratic rule. But there
may be some general paths or patterns on the road to democracy; other
paths or patterns might be unique but also uniquely interesting. I want
to mention three examples or patterns, without suggesting that they are
the only roads that countries have followed in the search for democracy.
The United States is one example; Great Britain represents a different
path; and Japan a third. Presumably, these different paths have had
consequences, politically and otherwise. Still, after I describe the three
paths, I intend, in a sense, to take it all back by arguing that the
historical paths no longer matter very much in the world we live in
today. This is not to deny that they were of great significance in the

1. See Inga Markovits, Children of a Lesser God: GDR Lawyers in Post-Socialist

Germany, 94 MICH. L. REV. 2270, 2288-89 (1996). In the German Democratic Republic
there was "telephone justice," that is, in a sensitive case, party officials would call a judge
and let her know how the case was supposed to come out.

https://surface.syr.edu/jilc/vol33/iss1/6 2
 Friedman: Roads To Democracy

2005] Roads to Democracy 53

past; or even to deny that to some extent the past lives on, and
influences particular forms of democracy, in big and little ways. But in
our times, as I have already mentioned, one sees a kind of democratic
epidemic, an infectious outbreak of democratic forms, which has swept
over large parts of the world. This means, I believe, that there are
powerful forces of leveling and convergence at work among most
countries, and certainly among all developed countries. The developed
countries are becoming a single, universal, world-wide club of nations,
subject to common and significant clusters of social and economic
forces. It would be foolish to argue that all the differences between the
United States, Great Britain, and Japan, for example, have disappeared
into the dustbin of history. But there are also enormous commonalities
among modem democracies. The similarities, it seems to me, are in
many ways more striking than the differences.

I. THREE ROADS
I mention England as an example of one road to democracy.
Progress in England proceeded, more or less, in a top-down way.
England was, like most European nations, a monarchy. The king stood
at the apex of society. In the middle ages, the crown dominated politics
and society in general; the crown shared its power with a hereditary
class of nobles, and high officials of the church. In early modem times,
these ancient power-centers had to move over to make room for rich
merchants and a rising business class. Traditionally, the common man
hardly mattered, politically. The great monuments along the road to
democracy, starting with Magna Carta, were hardly the result of grass-
roots agitation. It was the barons who extorted Magna Carta from the
king. The nobility and the elites gradually whittled down the power of
the crown. Elizabeth I, in the sixteenth century, was still very much the
queen; she had to reckon with Parliament, but she possessed awesome
authority. By the end of the eighteenth century, the monarch had lost
much of this authority. Queen Victoria was largely a figurehead.
Parliament governed in her name; and it was Parliament that held
power; it was Parliament, along with the Prime Minister, the cabinet,
and the growing civil service, that made the crucial decisions, wrote the
laws and the regulations, and put them into effect.
Parliament, however, was hardly a monument to democracy in the
nineteenth century. One chamber of the legislature was the House of
Lords; its members were the country's earls, dukes and barons. The
House of Commons was not really a house for commoners; its wealthy,
upper-class members were connected by blood and marriage to the
nobility or at least to the landed gentry. If an Earl sat in the House of

Published by SURFACE, 2005 3

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

54 Syracuse J. Int'l L. & Com. [Vol. 33:51

Lords, his younger brother (technically a commoner) may well have

been a member of the House of Commons. In England, the suffrage
was extremely narrow, well into the nineteenth century. Change came
about quite slowly. Leaders and reformers who pressed for change
were almost always themselves from the upper class. Even the
formation of a socialist party, the Labor Party, in the late nineteenth
century, did not change the demography of reform. Most leaders of the
Labor Party came from the ranks of the elite-they went to the same
schools and universities as other members of the elite, spoke with the
same accent, and shared in the same general culture. Democracy
percolated downward from this group. A prime minister from a log
cabin, an Abraham Lincoln, would have been quite unthinkable in
England. Perhaps it is still unthinkable. This pattern-democracy as a
slow evolution, which percolates down from the ranks of the elites-
may well be found in other European countries as well.
I think this pattern may have real consequences. Somewhat
paradoxically, the aristocratic, top-down nature of the English path may
help account for the fact that the British welfare state flourished earlier,
and more completely, than the American welfare state. Top-down
reform seems, moreover, to be something of a paradox. Why should an
aristocracy commit suicide? What led elites to manage, direct, and
produce a democratic system? Was it because of the ideas of the
enlightenment? Were these men intoxicated with the thought of John
Locke or Rousseau-or Karl Marx? Or was it-as seems more likely-
because of powerful, slow-moving social changes, which produced both
democracy and the ideas of John Locke, Rousseau, and Karl Marx?
Perhaps it was the impact of the industrial revolution, the rise of modem
capitalism, and similar grand historical events, all of which fed the
chain of events. This is, of course, far too complex a subject to be
handled in these few pages. My point is that, in the short run, the
precise pattern of development no doubt made a difference in the kind
and quality of British democracy. A society governed by an elite-even
a left-wing elite-was a society which, in a way, could afford to
concede a great deal to the mass of the people. The social positions of
the upper classes were not threatened by a welfare state. Habits of
deference to authority persisted, and guaranteed that the upper class
would continue to rule. This, however, was (as it turned out) only a
short-run consequence. The long run is another story.
This brings me to the second pattern, which is democracy that
comes from the outside in. In a word, imposed democracy. This is the
democracy of Germany, Italy, and Japan. All of them were
dictatorships in the 1930s, and expansive dictatorships at that. All of

https://surface.syr.edu/jilc/vol33/iss1/6 4
 Friedman: Roads To Democracy

2005] Roads to Democracy 55

them were roundly defeated in the Second World War. The United
States, England, and France occupied what became West Germany, and
imposed democratic forms on this part of the country. The German
Basic Law was adopted in 1948-49, when West Germany was still
under the control of the allies. There was no plebiscite in West
Germany. Democracy was not an option; the occupying powers simply
insisted on it. In Japan, perhaps the most extreme case, the American
authorities drafted a constitution and essentially rammed it down the
throats of the Japanese.2 There is a certain irony here: the American
occupation, headed by General MacArthur, had virtually dictatorial
powers-which it used to create democratic forms.
There were, at the time, many people in the West who were
skeptical as to whether these experiments in democracy would work.
They doubted that democracy really had a future in these countries.
Germany and Japan (they said) had no tradition of freedom and self-
rule; did not understand it culturally, and would not easily accept it.
These countries were used to a system of blind obedience to a leader or
an Emperor. Yet time has proved these pessimists wrong. The imposed
democracies have been, in fact, enormously successful. Perhaps the job
took a generation or two. 3 But both Germany and Japan, today, are
mature democracies. They have free elections, freedom of speech, the
press, and religion; their legal systems are efficient and respected, and
the vast majority of their citizens vote for mainstream parties. It seems
inconceivable that Germany, Italy, or Japan would ever revert to
authoritarian government. But why, exactly, is this so? This is a
question which we will try to answer later in this essay.
The American road to democracy followed a path which seems
quite different from the two just described. It can be roughly labeled as
a bottom-up development. The seeds of democracy were planted quite
early, as early as the seventeenth century, when the first settlers
established colonies on the Eastern Seaboard. They had no intention, to
be sure, of setting up democratic government. Their tastes were, if
anything, theocratic, especially in the Puritan colonies. The magistrates
and clergy who ran the colonies controlled many aspects of life with a
tight hand. But events overtook the settlements, and, in the process,

2. JOHN W. DOWER, EMBRACING DEFEAT: JAPAN IN THE WAKE OF WORLD WAR II 346-
404 (1999).
3. G.R. Boynton & Gerhard Loewenberg, The Development of Public Support for
Parliament in Germany, 1951-59, 3 BRIT. J. POL. Sci. 169, 170 (Apr. 1973). The authors
state that, "Between 1951and1961, the proportion of the population favoring a single-party
system to competitive parties was halved." There was" ... a growth in public understanding
of the new democratic regime and a rise in positive evaluations of it."

Published by SURFACE, 2005 5

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

56 Syracuse J. Int'l L. & Com. [Vol. 33:51

undermined authoritarian government.

The most important factor, perhaps, was the sheer abundance of
land. From the standpoint of the white settlers, the supply of land-
good land, fertile land-was endless; and it was almost free for the
taking. To be sure, there were native tribes on much of the land; but the
colonists paid, on the whole, little attention to their claims. They never
conceded that the natives actually "owned" the land. Out of the brute
fact of abundance of land, there developed a society markedly different
from the societies of the Old World. America became a society in
which average families and average households had a capital asset: a
farm, a house, a shop. 4 There were no landed gentry. The widespread
ownership of land was already evident in the colonial period. There
were, to be sure, many members of a landless class-indentured
servants, for example. An indentured servant was a kind of temporary
slave: he or she usually lived in the master's house, received no wages,
and could not quit work before the end of the term (often seven years).
Moreover, the master could sell the servant, and the years remaining on
his indenture, to another master. 5 In the plantation south, the conditions
of life (and land tenure) were somewhat more akin to the English
situation than conditions in the northern and middle colonies. On the
large plantations, African slaves made up the bulk of the work force. 6
Their condition was permanent; and their children were also slaves.
Indentured servitude died out after the Revolutionary War. 7
Slavery was abolished in the north; and never existed in the new states
of the middle west. 8 In the north and the middle west, and to a lesser
degree, the south, average households owned a piece of land. As late as
1850, it was still true in England that a small group of landed gentry
owned virtually all the land, living lives of luxury on the rents paid by
thousands of tenant farmers. The typical Illinois family, on the other
hand, owned his eighty acres of land, either free and clear, or subject to

4. See generally LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW (3rd ed.

2005).
5. See generally ABBOT EMERSON SMITH, COLONISTS IN BONDAGE: WHITE SERVITUDE
AND CONVICT LABOR IN AMERICA, 1607-1776, 70-71 ( 194 7).
6. Large estates on the Hudson, in upstate New York, were an exception to the norm of
small, family farms in New England and the middle colonies. These estates, owned by
"patroons," whose tenants paid them a yearly rent, were a source of considerable unrest, and
were eventually eliminated. See CHARLES w. MCCURDY, THE ANTI-RENT ERA IN NEW YORK
LAW AND POLITICS, 1839-1865 (2001).
7. ROBERT J. STEINFELD, THE INVENTION OF FREE LABOR: THE EMPLOYMENT RELATION
IN ENGLISH AND AMERICAN LAW AND CULTURE, 1350-1870, at 11-12 (1991).
8. The Northwest Territory Ordinance (1787) prohibited slavery in the territory that
later became Ohio, Indiana, Michigan, Illinois, and Wisconsin.

https://surface.syr.edu/jilc/vol33/iss1/6 6
 Friedman: Roads To Democracy

2005] Roads to Democracy 57

a mortgage. In addition, American government was radically

decentralized. The United States Constitution had set up a federal
system. The national government had limited powers, and the national
capital, Washington, D.C., was an insignificant village. Most of the
political activity took place in the states and in towns and cities. Many
states clung, for a while, to property qualifications-only landowners or
taxpayers could vote, but most male heads of household were already
property-owners. Property qualifications began to decay in the
Revolutionary period, and were "gradually dismantled after 1790." By
1850, the property qualification was essentially gone. 9 Our Illinois
farmer had the right to vote; and he counted for something in his small
community. The city laborer also had the right to vote, and to make his
voice heard. America was, then, already a grass-roots democracy.
Of course, nowadays we look back at the nineteenth century with a
much more jaundiced eye. We see the gross and glaring imperfections
of American "democracy." Women did not vote; married women, until
about the middle of the nineteenth century, were not much better off,
legally speaking, than infants and idiots. They could not control
property, or enter into contracts. All economic power was in the hands
of their husbands. 10 Millions of African-Americans were slaves,
without property, or rights, under the almost absolute control of their
owners. 11 Free blacks, north and south, were treated everywhere as
second-class citizens. Nowhere did they enjoy anything remotely like
political or social equality. The treatment of the native peoples was
shameful-and at times violent, and almost genocidal. Still, despite all
of this, in the eyes of Americans themselves, America was a real
democracy, a shining example of freedom and popular government.
And most outside observers tended to agree. They obviously were not
comparing America with what it would later become; they were
comparing it to existing societies, especially European societies. To
Europeans, America was a bold new experiment in government of the
people, for the people, by the people. It was this aspect of American
society that so fascinated observers like Alexis de Tocqueville.
America, he thought, was pioneering a "great democratic revolution." 12

9. ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF

DEMOCRACY IN THE UNITED STATES 29 (2000); see also id. tables A.2 & A.3.
10. The change came with the adoption of the Married Women's Property Acts; see
LA WRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 147 (3d ed. 2005).
11. See generally THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860
(1996).
12. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 9 (George Lawrence trans., J.P.
Mayer ed., Doubleday 1969).

Published by SURFACE, 2005 7

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

58 Syracuse J. Int'I L. & Com. [Vol. 33:51

And in many ways, America, because of this history, and because

of its land tenure system, its decentralization, and its egalitarian
philosophy was, in fact, a pioneer in many aspects of what we would
now consider democratic government. But, paradoxically, some of
these same features would later act as impediments-if not to
democracy, then to the modem welfare-regulatory state. Federalism,
for example, was no friend to social welfare legislation. There was also
no reform-minded, liberal civil service. This most democratic of
countries has been, in many ways, a laggard in developing a state which
provides for the poor, the sick, and the downtrodden. There is much
more inequality, much more of a gap between rich and poor, than in
many of the European democracies.
These, then, are three distinct patterns of development. Each has
had its consequences, politically and socially. The three patterns almost
certainly do not exhaust the historical possibilities. Surely there are
features in the history of English-speaking colonies like Australia, New
Zealand, and Canada that make these countries different both from the
United States and from Great Britain. Perhaps colonies that became
free when the old empires collapsed after the Second World War
deserve to be put in their own category: India, for example, and the
small countries of the Caribbean (Barbados, Jamaica, Trinidad). There
also seem to be countries that became democratic more or less by
diffusion; they modeled themselves after countries with long histories of
democratic government. There may be countries that democratize under
the influence of a powerful, nearby nation. Surely an interesting story
can be told about such countries as Spain, and South Korea; Taiwan,
perhaps; Greece and Portugal. The European Union, as it expands,
insists on a commitment to democracy, from any country that wants to
join the club. Its rules and requirements have had an influence on the
countries of Eastern Europe that were knocking on the door. Still, in
my view, all recent converts to democracy show the influence of
cultural diffusion. Or, to put it another way, they show the results of a
growing, world-wide culture of modernity-a culture which fosters
democracy and the rule of law.

II. FORWARDMARCH
Each of the democratic countries, as I said, has had its own unique
history; has traveled its own unique path. But if you put all of these
paths together, I think some patterns emerge which are quite striking.
The role of modernization, of modernity itself, seems to be decisive. It
seems fair to say that five hundred years ago, no society on earth would
qualify as "democratic," under present standards. Perhaps none of them

https://surface.syr.edu/jilc/vol33/iss1/6 8
 Friedman: Roads To Democracy

2005] Roads to Democracy 59

even came close. Societies were ruled by kings and emperors, by

oligarchs and tribal chiefs. Even as late as 1900, the club of
democracies was exceedingly small. Even within this club, there were
aspects, which were (by our lights) profoundly undemocratic-the place
of women in society, for example. In 1900, in democratic America, or
democratic Switzerland, women did not have the right to vote.
Since 1900, a great deal has changed. The march toward
democratic rule in the twentieth century, of course, was dramatic, but it
was hardly a smooth, linear development. 13 The century included some
of the worst, bloodiest, and most tyrannical dictatorships in human
history, along with some of the worst examples of genocide and ethnic
cleansing. This was the century of Hitler, Stalin, Mao Tse Tung and Pol
Pot; the century of the rape ofNanking, the Holocaust, and the slaughter
of innocents in Rwanda. Yet the difference between the status of world
politics in 2000, and what world politics was like in 1900, is stark and
dramatic. In 1900, the great European empires were at their height, or
were perhaps still growing. Indeed, what we now consider the third
world was a collection of colonies, ruled for the most part from some
distant capital: London, Paris, or Lisbon. Buttressed by racist
ideologies, the European powers saw no particular reason to grant the
right of self-government to "primitive" people, savages, heathens. Even
the United States had felt the imperial urge, and swallowed up remnants
of the decaying Spanish empire.
Imperialism in its classic sense remained a strong force until about
the middle of the twentieth century. Mussolini's Italy felt cheated out
of an empire. As far as he was concerned, this was excuse enough for
him to conquer Albania, Libya, and Ethiopia. The Japanese were busy
putting together their own empire in Asia. Both Taiwan and Korea
were Japanese colonies. Hitler's Germany swept over Europe, reducing
smaller countries to vassals, over which Germany ruled with an iron
fist.
Japan and Germany lost the Second World War. This cost the
Japanese their empire. The Germans were forced to disgorge all of the
territory they had conquered in Europe, and their own country was in
part dismembered. Yet the winners of the war soon found themselves
no better off, as far as their empires were concerned. The British and
the French had to give up their colonies in Asia, Africa and elsewhere.

13. For example, Germany went from autocratic rule under the Kaiser to a more or less
feeble democratic regime under the Weimar Republic. This was followed by Hitler and,
after his downfall, democracy. Other countries that went from democracy to dictatorship to
democracy again include Chile and Argentina.

Published by SURFACE, 2005 9

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

60 Syracuse J. Int'I L. & Com. [Vol. 33:51

The Dutch lost their grip on Indonesia. The Portuguese had to let go of
Angola and Mozambique. All of the former colonies, with a few minor
exceptions, became free and sovereign nations. Some of them also
became successful democracies (many, alas, did not). The Soviet Union
was the only country that gained territorially, and much of Eastern
Europe fell under its influence. Yet, toward the end of the twentieth
century, the Soviet Empire itself disintegrated. The fifteen republics
that had made up the Soviet Union became independent, sovereign
nations. Some of these, too, became democracies-very notably, the
small Baltic States (others, especially in central Asia, did not). Russia
lost its grip over Eastern Europe, which had been in a quasi-colonial
situation, and democracy has blossomed in some of this area as well-
in Poland, Hungary, and the Czech Republic. The German Democratic
Republic dissolved, and was absorbed into democratic West Germany.
Over the last two generations, then, the march toward democratic
rule has been steady, powerful, and seemingly irresistible, in many (but
not all) parts of the world. In Western Europe, democracy became
virtually universal. The remaining authoritarian governments, in Spain,
Portugal, and Greece collapsed, and solid democracies replaced them.
The story in Asia and Latin America is more complicated. In South
America, countries like Chile, Argentina, Brazil, and Uruguay have
shuttled in and out of the camp of the democracies. At present they
seem fairly firmly ensconced there. Africa is a more tragic story, but a
vibrant democracy exists in the Republic of South Africa; and there are
signs of progress in a number of other African countries. Democracy is
spreading in Asia as well. Taiwan and Korea have become true
democracies and seem likely to remain that way. There are also quite a
few countries with imperfect democracies, but which seem to be
heading in a more democratic direction though slowly and unevenly.
Even some countries which, in all honesty, we would have to label as
half-democracies are engaged in struggles to make their governments
more accountable, to strengthen the rule of law, and to strive toward
stronger constitutional government. Mexico is a good example. 14

14. See Rogelio Perez-Perdomo & Lawrence Friedman, Latin Legal Culture in the Age
of Globalization, ch. 1 in LEGAL CULTURE IN THE AGE OF GLOBALIZATION: LATIN AMERICA
AND LATIN EUROPE 1 (Lawrence Friedman & Rogelio Perez-Perdomo eds. 2003)
[hereinafter LEGAL CULTURE]; see also Maria Ines Bergoglio, Argentina: The Effects of
Democratic Institutionalization, ch. 2 in LEGAL CULTURE, supra, at 20; Edmundo
Fuenzalida Faivovich, Law and Legal Culture in Chile, 1974-1999, ch. 4 in LEGAL
CULTURE, supra, at 108; and Sergio L6pez-Ayll6n & Hector Fix-Fierro, "Faraway, So
Close!" The Rule of Law and Legal Change in Mexico, 1970-2000, ch. 9 in LEGAL
CULTURE, supra, at 285. Each of these essays portray countries struggling toward
constitutional democracy.

https://surface.syr.edu/jilc/vol33/iss1/6 10
 Friedman: Roads To Democracy

2005] Roads to Democracy 61

A large part of the world still lives under conditions of autocracy.

This includes China, the largest country of them all; it also includes
Cuba, Vietnam, and Laos. It includes as well most of the countries in
Africa. Some of these countries have gone backwards, and have
suffered under truly awful dictators and satraps. The autocratic world
includes almost all of the Middle East, from Morocco to the Arabian
Peninsula, and beyond (for example, Pakistan). Iran holds periodic
elections, but nobody could claim this country as a democracy. The fate
of Iraq is very much an open question. Nonetheless, change in the
twentieth century has been quite remarkable, and on the whole, has led
in a single direction, though with many ups and downs. The world in
the early twentieth-first century, as we said, is a very different place
from the world a century before.

III. GLOBALIZATION AND ITS CONSEQUENCES

How can we explain this development? Obviously, there is no
single factor that we can isolate and say: this is the cause. The
expansion of the club of democratic societies is obviously the result of
very complex processes. But a few basic facts seem clear. The
fundamental fact is a process of cultural diffusion. And it is modernity
itself that is diffused from society to society. "Modernity" of course
means many things. It has its technological side, its political side, and
its cultural side. Most basic of all, perhaps, is its psychological side: the
growth of individualism. Whether individualism is the cause or the
effect of modernity, or any of its aspects, is a difficult question-
perhaps a chicken-and-egg question. In any event, it is a question we do
not have to answer here. All that we are claiming here is that
democracy is a byproduct of modernity and individualism; democracy
results when the public, or some important part of the public, puts
political pressure on governments, in societies that have modernized,
and where modal personalities have developed along individualistic
lines. The argument is also that these forces and pressures are common
to the whole developed world. The argument is, in short, that there is a
single basic culture of modernity; 15 that this culture implies democracy;
and that powerful technological forces spread this culture from one end
of the globe to another.
That this is now a single, conjoined world, in terms of
communication, is completely obvious. It is easy to see how ideas of

15. I have also argued that there is a single legal culture of modernity. Lawrence M.
Friedman, ls There a Modern Legal Culture?, 7 RATIO JURIS 117 (1994).

Published by SURFACE, 2005 11

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

62 Syracuse J. Int'I L. & Com. [Vol. 33:51

democracy and the rule of law can be diffused from society to society
technologically speaking. Nor are these ideas easy to resist. China, for
example, tries to keep out alien ideas, to control the Internet, to censor
the press; and so do many of the autocracies of the Middle East. But
this job seems to be growing more difficult over time. We have to ask,
however, why it is hard to stifle and censor. It was so simple in the past.
Diffusion of democratic ideas needs an audience, needs a soil in which
to grow. The diffusion, then, presupposes a pre-existing culture of
human rights. It presupposes a world in which there are eyes willing to
see, ears willing to hear, and brains willing to absorb. Globalization
provides the fertile soil. This calls for a word of explanation.
First, with respect to that slippery term, "globalization." The word
is in constant use today; but often quite loosely. There are, to be sure,
all sorts of definitions and explanations of globalization. The core
notion is, in my view, often misunderstood. Many people think of
globalization chiefly in economic terms-above all as a matter of
international trade. They may also think about political and economic
interconnections between nations; and about travel, tourism, emigration
and immigration; about multi-national corporations, and the evaporation
of borders and of sovereignty. All of these are important factors. But
underlying all of them is something far more basic. Globalization, in
essence, is a matter of culture. 16 Modernity, we have argued, implies
the development of a single world-wide culture. Globalization, too, is a
result of modernity; it is a form, or adaptation, of that culture. The
diffusion of ideas about democracy and the rule of law is only one
example-an important example-of the diffusion of a global culture.
The heart of the matter is the spread of habits, behavior patterns, desires
and expectations, from country to country. This is more basic than the
increase or spread of international trade, or the physical movement of
peoples; and is, indeed, an important source of these vital modem
processes.
But let me comment briefly about international trade. There has,
of course, always been trade between nations and communities; there
has always been an exchange of goods between different societies. In
the past, though, world trade was, on the whole, asymmetrical. Some
countries provided raw materials, which they shipped to other countries.
Some countries manufactured finished products, which they traded with
countries that had no capacity to produce those goods. Often, it was the
case that rich countries bought raw materials, processed them, made

16. See Lawrence M. Friedman, Erewhon: The Coming Global Legal Order, 37 STAN.
J. INT'L L. 347 (2001).

https://surface.syr.edu/jilc/vol33/iss1/6 12
 Friedman: Roads To Democracy
2005] Roads to Democracy 63

sophisticated goods, and then consumed those goods in the home

country. To be sure, trade is still, and will always be, asymmetrical in
certain regards. For example, Saudi Arabia has oil; Japan does not.
Bananas, pineapples, and cocoa do not come from Poland. Gold, silver,
and copper can be mined in some countries, and not in others. But most
products can be, and are, produced anywhere; and then sold
everywhere. People buy T-shirts from China, automobiles from Japan,
cell-phones from Finland, and running shoes from Indonesia. Not one
of these products depends on the location of mines or wells or raw
materials, in general. 17
What is even more striking is the globalization of demand. The
Chinese do not simply make T-shirts; they also wear them. The
Japanese make cars, and sell them all over the world (more and more,
Japanese companies also make them all over the world); they also drive
cars, as any observer of the clogged streets of Tokyo can attest. Modern
technology-the automobiles, jet planes, and computers-are just as
much at home in Seoul or Beijing as they are in New York or in Paris.
People's shopping lists are amazingly similar all over the world. If they
have money, they want the same goods. They want blue jeans; they
want cell-phones, cars, color television sets, and CDs of rock-and-roll
music. This similarity of desire is the very essence of globalization.
And the similarity of wants and ambitions stems from an underlying
similarity of mind-set; in short, a similarity of culture.
This phenomenon-cultural convergence-is visible, wherever
one looks in the world, and most particularly in the developed countries
of the world. This is egregiously so even if we take Japan as an
example. Japan is an exceedingly rich country-the richest non-
W estern country (except perhaps for a few oil sheikdoms); it has a
powerful, vibrant economy, and a standard of living which is the envy
of most other countries. Japan is in the forefront of technology.
Japanese electronics and Japanese cars are trend-setters all over the
world. In Japan, one finds skyscrapers, high-speed trains, computers,
cell phones, and all the other trappings of a modern, technological
society. Yet among scholars, one sometimes finds the view that Japan
is nonetheless essentially different from European or North American
countries. The Japanese (they say) have modernized, on the outside; but

17. And, more and more, the same could be said about financial and other services.
People in Japan can bank in Switzerland or the Cayman Islands. Nobody has figured out as
yet how to globalize haircuts and carwashes; but American medical records can be read and
analyzed in India, and American airline companies can shift their reservation offices
overseas if they wish.

Published by SURFACE, 2005 13

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

64 Syracuse J. Int'l L. & Com. [Vol. 33:51

inside, they have never changed. Inside, they retain some sort of
mystical essence, some core of Japanese-ness, which stubbornly
persists, some national traits that survive in the face of the wild,
swirling forces of the contemporary world.18
Differences between Japan and, say, France or the United States
are certainly obvious even to the casual visitor. Yet if we compare
Japan today with other developed countries, the similarities (I think) are
much more striking than the differences. The tall buildings look like
everybody else's tall buildings. The airports are like every other airport.
People dress much the same as they do elsewhere in the developed
world; people drag out their kimonos and robes, if at all, only for
ceremonial occasions. Chairs and tables are replacing tatami mats. The
Tokyo Symphony plays Mozart and Beethoven; the Tokyo teenager
listens to rock and roll music, and sends text-messages to friends on the
ubiquitous cell-phone. Western food is everywhere in the big cities-
everything from fancy French restaurants, to MacDonald's and
Kentucky Fried Chicken. Of course, the Japanese still eat great
quantities of traditional Japanese food-sushi, for example. But
Japanese cuisine has itself become globalized. Sushi is no longer
something that only the Japanese like to eat. There is a sushi craze in
Philadelphia, Caracas, or London. Sushi has jumped over borders, and
now encircles the globe. It follows the path of many other foods-
curry, bagels, pizza, or egg rolls-that were once associated with a
single, national cuisine, and are now available almost everywhere.
Global culture is common to the whole Westem world, to the
whole developed world. It is also the culture of the middle class in
third-world countries. And this global culture is not just food,
buildings, technology, and consumer products. It is also a set of
attitudes. These attitudes are the ones which lay the basis for the
movement toward democracy. It is hard for me to accept the idea that
the Japanese are really so different from the rest of the developed world,
when they share so much of the technology, so many of the habits and
attributes, of these other countries.
It is not easy to explain exactly what social forces brought about
the cultural revolution which I have been describing. Obviously, there
was no single cause. A whole cluster of factors and forces produced the
modem world-the industrial, high-tech world we live in. These

18. On the relationship between Japanese culture and its legal order, see generally John
0 . Haley, The Myth of the Reluctant Litigant, 4 J. JAPANESE STUD. 359 (1978); see also
FRANK K. UPHAM, LA w AND SOCIAL CHANGE IN POSTWAR JAPAN (Harvard University Press)
(1987).

https://surface.syr.edu/jilc/vol33/iss1/6 14
 Friedman: Roads To Democracy
2005] Roads to Democracy 65

factors also produced modem culture. The mass media have played an
especially important role in creating and spreading that culture. The
mass media are among the most influential institutions of modem
society. The story of their rise to prominence begins with the popular
press; then, in the twentieth century, came radio, then the movies, then
television and, more and more in this day and age, the Internet. There is
an incredible wealth of words, images, ideas, and conversations on the
World Wide Web. We are at the dawn of the Internet Age; but we can
already see what a mighty force this medium is likely to become. On
the Internet, one can find almost any message one wants, reach out to
any group one wants, satisfy almost any taste one wishes to indulge,
share messages with people in all parts of the world.
Meanwhile, television has been a particularly potent force in
creating our contemporary world. Every middle-class home in the
W estem world has a television set; perhaps two or three. Indeed, in
many countries, no home is so humble as to do without. Even in the
third world, all except the most isolated villages have some access to
television. Satellites make it possible, too, to beam news and images
around the world in literally no time at all. By the end of the twentieth
century, then, the modem media had greatly reduced the importance of
time and distances-culturally speaking, they are almost meaningless.
People all over the world watch funerals, coronations-and wars-in
real time, as the events occur. But, more significantly, ideas and images
circle the globe. The media has also gone a great way toward reducing
cultural isolation. There are no longer any hermit kingdoms. No
country is an island. Every country is connected to every other country.
The offerings on television are incredibly diverse. There are
educational programs, weather programs, shows about crime and police,
soap operas, ballets, televangelists, "reality" shows, channels with old
movies, channels with new movies, and so on almost ad infinitum. And
yet it is not too much of a stretch to say that a common theme underlies
almost all of television. Television and the other media spread the
message of modem individualism. Not that they do so explicitly, or
intentionally. But this is nonetheless the message. Television
advertising is a clear case of this underlying message. In most
countries, television is awash with advertising. In general, nothing is
more characteristic of modem capitalism, and modem society, than
advertising. Advertising is everywhere: not only on television, but also
in newspapers and magazines, on billboards, in buses and cabs,
sometimes even in writing in the sky. Advertising quite consistently
tells a story of individualism; and, indeed, of a particular kind of
individualism, the type that has been called expressive individualism.

Published by SURFACE, 2005 15

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

66 Syracuse J. lnt'I L. & Com. [Vol. 33:51

This is the notion that a person's main task in life is to develop the self,
the personality; to find and develop those attitudes and behaviors
conducive to self-realization. 19
Advertising spreads this message. Advertising-whether on the
air, in newspapers, or on the web-proclaims the same goals as
expressive individualism. It hardly matters what product is advertised.
The ads are directed at individuals, not families or groups; not tribes or
clans. These messages tell people that they can be happier, richer,
better, sexier; that they can have whiter teeth or cleaner clothes or cars
that make other people drool. They send a message of self-
improvement, a message about satisfaction of desires. Hence
advertising-and the mass media in general-subvert traditional values
and upends traditional societies. It does this even if the surface message
makes exactly the opposite claim. The media also homogenize; they
"weaken and then destroy the local and the traditional"; since these
depend on "isolation, on the strength of primary groups," the media
"wreak havoc" among non-modem cultures; they flatten out speech-
pattems, erode local dialects, and promote assimilation into the majority
culture. 20
And television, as we said, is ubiquitous. Children are exposed to
the magic box almost from the day of birth. Television-and, more and
more, the computer and the Internet-rival the parents as teachers,
models, and agents of socialization. The parental monopoly has been,
in fact, broken. The child learns how to become an individual, a person,
and not just a member of the family; and it learns this from the media.
The family, indeed, becomes a kind of cocoon, from which the child
must escape to become a mature adult. The family of origin turns into a
stage of life, rather than a permanent and fixed institution, a life-long
haven and protection. This process-the decay or dissolution of the
traditional family-goes on in all developed countries, though at
different rates and paces. Divorce and family break-ups have become
more common almost everywhere. But there are other examples of the
process of individuation. For example, in the United States, England, or
Sweden, children almost always leave home when they grow up. An
adult child, unmarried and living at home, is considered slightly odd. In
Italy or Spain, it is still quite normal for grown children to live at home;

19. See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM
AND COMMITMENT IN AMERICAN LIFE ( 1985).
20. LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY, AND
CULTURE 204 (1990).

https://surface.syr.edu/jilc/vol33/iss1/6 16
 Friedman: Roads To Democracy

2005] Roads to Democracy 67

but the practice ofleavingthe nest is probably growing. 21

It is possible that the modem culture of personality and
consumption blossomed first in the United States. This was, after all,
the "first country ... to have an economy devoted to mass production,"
the first "to create the mass consumer institutions and the mass
consumer enticements that rose up . . . to market and sell the mass-
produced goods." 22 This would be no surprise, since the conditions that
produced democracy also appeared early in the United States, as we
have argued. But the other countries have probably caught up by now.
Perhaps Spain or Japan have been slower to absorb this culture than,
say, Sweden or the United States. But the movement in all modem
countries seems to be going in the same direction.
Individualism does more than undermine the power of the
traditional family. It is an enemy of patriarchal authority in general.
There seems little doubt that individualism sends a nation down the road
to democracy. Or more accurately, it leads to a demand for democracy,
for human rights, for a society and a climate in which the desires and
the attitudes of the individual can be satisfied. Only a democracy is
able, on the whole, to satisfy these demands-or at least to make the
attempt. The spread of democracy-of the urge to become
democratic-is one of the phenomena of recent history. Country after
country has been influenced by this growing demand; country after
country has gone through its democratic revolution, has opted for free
elections, constitutions, and bills of rights; or have turned existing paper
constitutions into reality. I have already mentioned the many examples:
Germany and Japan; all of W estem Europe; Poland, and the Baltic
countries, among others. Democracy has been surging ahead in Latin
America. It is a growing force in Asia. It seems secure in India, which
proudly calls itself the world's largest democracy, and in Korea and
Taiwan; there has been ferment and change in other countries as well.
There are, to be sure, gross exceptions to the trend, as we have
mentioned. Obviously, there are plenty of societies which try to stifle
the democratic urge, and to hold back the forces that lead to it. They
have had more or less success. Democracy and the rule of law have by
no means conquered the globe. As we mentioned, China, the largest

21. LAWRENCE M. FRIEDMAN, PRIVATE LIVES: FAMILIES, INDIVIDUALS AND THE LAW 87
(2004). In 1994, 79% of men in their 20's in Spain lived at home if they were unmarried; in
the United Kingdom only 36% lived at home. See Constanza Tobio, Marriage, Cohabitation
and the Residential Independence of Young People in Spain, 15 lnt'l J.L. Pol'y & Fam. 68
(2001).
22. WILLIAM LEACH, LAND OF DESIRE: MERCHANTS, POWER, AND THE RISE OF A NEW
AMERICAN CULTURE 11-12 (1993).

Published by SURFACE, 2005 17

 Syracuse Journal of International Law and Commerce, Vol. 33, No. 1 [2005], Art. 6

68 Syracuse J. Int'I L. & Com. [Vol. 33:51

country in the world in terms of population, is also (so far) the largest
exception to the rush toward democracy. Most of Africa, and most of
the countries of the Islamic Middle East, seem to be stuck in a pre-
modern, pre-democratic phase. Democracy in Russia is shaky at best;
and in the former Soviet Republics, with a few exceptions, democracy is
still struggling to find itself. Still, to most of us in the West, in the
heartland of democracy, most people seem sure that government of the
people and by the people is the only long-term option for a sovereign
nation. We tend to assume that this is the end point toward which all
governments should evolve, must evolve, and are in the process of
evolving. 23
But is this really so? Nothing is more risky than trying to predict
the future. Democracy has its enemies; and they are strong and
implacable. It is not simply a matter of dictators trying to hold on to
their power. There is also genuine grass-roots opposition. Religious
fundamentalism seems to be on the march, most notably in Moslem
countries, but elsewhere as well. 24 Some, not all, versions of
fundamentalism find it hard to coexist with democracy and the rule of
law. Religious fundamentalists in the United States by and large have
no particular quarrel with democracy (although they do, in some ways,
challenge the separation of church and state). In other countries,
fundamentalists are less bashful in their battle with all aspects of
modernity, including democratic rule. And they do battle, not in the
way of the Amish, that is, by withdrawing from the modern world, and
forming a small, closed society; rather, they boldly confront the modern
world, and hope to destroy at least some aspects of that world.
Most Americans think that this is a war the other side cannot win.
They think that autocracy is doomed. The regimes in Iran, or in China,
simply cannot last. They count on modernity, the lure of the Internet,
blue jeans, and movies, to overwhelm all the backward, anti-democratic
forces. Certainly, this is a possible scenario for the future, perhaps even
a likely one. Yet history is full of twists and turns. Nobody predicted
the collapse of the Soviet empire. Nobody, really, predicted the rise and
virulence of fundamentalist Islam; or, for that matter, of other world
religions. Nobody predicted the strength of the Christian right-wing in

23. We also assume that democracy is good for all countries, and that it will bring
peace and prosperity. But see AMY CHUA, WORLD ON FIRE (2003) arguing that in an
important group of countries-those in which an ethnic minority is economically
dominant-"free market democracy" can lead to violence and severe internal conflict.
24. For a (somewhat dated) overview, see FUNDAMENTALISMS OBSERVED (R. Scott
Appleby & Martin E. Marty eds., 1991 ).

https://surface.syr.edu/jilc/vol33/iss1/6 18
 Friedman: Roads To Democracy

2005] Roads to Democracy 69

American politics. Nobody foresaw the "war on terror." When the

Soviet Union disintegrated, many people thought that China-or
Cuba-would not be able to go on as in the past; that they would have
to undergo radical change. So far, no such thing has happened.
Moreover, there are dangers, shadows on the horizon, even within
the West. Democracy implies limits on the power of government.
These limits, historically, have been both structural and cultural. The
structural limitations include written constitutions, bills of rights, an
independent judiciary, and the whole system of checks and balances.
More subtly (but probably more crucially) in the developed countries,
there is a cultural commitment to democracy and limited government; a
commitment to respect human rights and human dignity (at least up to a
point). But perhaps limited government, and checks and balances,
depended on important technological limitations-limitations which
were largely taken for granted. The modem media-expensive and
powerful-open the way for regimes and conglomerates to manipulate
public knowledge and belief in frightening and threatening ways. At
least some people might see dangers to democracy in new structures of
control over the media. The free-wheeling, Wild West world of the
Internet is also, perhaps, under threat. 25
Or consider, for example, the sanctity of the home. Laws (about
warrants, searches and seizures, and so on) expressed a policy that
seemed to guarantee privacy and safety. A person's home was his
castle, and the state could not invade it, except when absolutely
necessary, and when authorized by law. But the rules were devised for
an age long before technology made it possible for the police to walk
through the walls, so to speak. No legal rules about warrants and the
like are truly effective, if there are devices that can listen to whispers a
mile away, or unseen eyes that can watch and explore and invade. 26
The technology of Big Brother is not science-fiction; it is a plain and
arrived fact. It remains to be seen if and how this technology will be
used. Will there be sound, effective, workable controls? If not, it is
hard to see how democracy can survive in the form we have grown to
know and love, and in which we flourish.

25. See LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A
CONNECTED WORLD (2001).
26. "New X-ray devices can see through people's clothing, amounting to what some
call a 'virtual strip-search.' Thermal sensors can detect movement and activity via heat
patterns. . . . [P]arabolic microphones can record conversations at long distances ....
Tracking devises can relay information about a person's whereabouts .... Surveillance
cameras have become ubiquitous." Daniel J. Solove, Reconstructing Electronic Surveillance
Law, 72 GEO. WASH. L. REV. 1264, 1265 (2004).

Published by SURFACE, 2005 19