By JANICE HYDE
This year marks the 50th anniversary of Law Day, instituted by the American Bar Association (ABA) during the late 1950s to draw attention to both the principles and practices of law and justice. President Dwight D. Eisenhower proclaimed the first Law Day in 1958.
To mark the occasion, the Law Library in the Library of Congress hosted a panel discussion on “The Rule of Law in Established and Emerging Countries.”
Law Librarian of Congress Rubens Medina welcomed the panelists and the audience to the program. He observed that the concept of the rule of law has been “frequently challenged in the domestic setting as well as on the global stage.”
“The Law Library has cultivated and advocated rule-of-law principles for over 175 years,” said Medina. “We remain committed, through programs such as the annual Law Day event, to fostering the public’s understanding and challenging the public’s perception of the role law plays in a free society,” said Medina.
Sen. Lindsey Graham of South Carolina, an attorney who served as an Air Force lawyer and an instructor at the Air Force JAG (Judge Advocate General) school as well as in private practice, offered opening remarks.
“Law keeps us pointed in the right direction when politics doesn’t,” said Graham. “If you find yourself in a courtroom, it will be about what you did and not who you are.”
He expressed concern that the Senate confirmation process for U.S. federal judges has become politicized. He fears that politics, in conjunction with relatively low pay, may preclude the most qualified people from becoming judges.
Law has to be “a different place,” he argued, “a quiet place where you park politics at the door.”
Harry T. Edwards, judge for the U.S. Court of Appeals for the District of Columbia Circuit, moderated the panel and provided opening remarks to frame the discussion. He acknowledged that the rule of law is not an easy concept to define. It is, he argued, both concrete and aspirational.
To illustrate that the rule of law is concrete, Edwards cited the existence of published and enforceable laws. Conversely, he noted that societies, such as dictatorships, can exist without the rule of law, making the concept aspirational. Under the rule of law, he argued, there is a constant struggle to balance the protection of individual liberties with the common good, while administering equal justice under the law.
Rob Boone, director of ABA’s Rule of Law Initiative, declared that to be sustainable, the rule of law must be deeply rooted in a society. He noted that the ABA, while engaged in providing training for judges, lawyers and civil servants in 42 nations, has promoted a “culture of lawfulness.” Citizens must have a respect for legal norms and traditions even if they fall short on enforcement. He believes that it is much more difficult to change societal attitudes than to alter institutions. Therefore, Boone said, the ABA has focused on long-term, broad-based civic education. For example, in Kosovo the ABA has developed a cartoon character, “Justice Kid,” to educate children on issues related to the rule of law, including gender equality and human rights.
Georgetown University Law Center Professor Rosa Brooks, co-author of “Can Might Make Rights? The Rule of Law after Military Intervention,” believes that “first and foremost, the rule of law is a culture,” said Brooks.
She observed that a country may have all the institutions associated with the rule of law and well-written constitutions and laws, but these are meaningless if people do not have faith in these things. She believes this is the case in the U.S. as well as around the globe.
“The rule of law is only as strong as our ongoing commitment to it,” she said. She added that our commitment to the rule of law must be displayed in order for the U.S. to promote the concept elsewhere in the world.
Thomas Carothers, vice president for Studies-International Politics and Governance at the Carnegie Endowment for International Peace, began by referencing an article he wrote 10 years ago. Written at a time when many countries in Europe were undergoing a transition to democracy and market economies, the article referred to the rule of law as “the elixir of transitions.” A decade later, he observed that the concept of the rule of law continues to command respect even though there is less of a consensus about its definition. According to Carothers, there is widespread agreement that the rule of law is a positive concept.
Carothers suggested several reasons for its widespread appeal. First, the rule of law speaks to a human desire for justice—a universally attractive concept in and of itself. Additionally, the rule of law is such a broad concept that everyone, even people with opposing views, can find in it something that resonates with them.
The final panelist to speak was Kurt Schmoke, former mayor of Baltimore (1987-1999), now dean of Howard University School of Law. Schmoke described an election in Madagascar in December 2001, one year after the controversial U.S. presidential election of 2000, which was ruled upon by the Supreme Court. In Madagascar, six people were candidates for the presidency. Following the election, one candidate—not the incumbent—garnered more than 50 percent of the vote. When the incumbent refused to yield to the victor, the army did not take up arms, but rather the courts decided that the challenger had legitimately won the election. The United States and France initially refused to support the winner, but eventually, President Bush sent a letter endorsing the newly elected president.
“When we do support the rule of law, we can uplift the lives of millions,” concluded Schmoke.
Judge Edwards then queried the panelists on whether or not they believe the rule of law exportable.
Boone responded that while he had not thought of the rule of law as exportable, there are positive examples and best practices to share in regard to what the ABA is trying to do to promote the rule of law.
For her part, Brooks does not believe the rule of law should be viewed as a transferable commodity. She prefers to think it is possible to pass along the concept through “cultural diffusion.” In this regard, she argued, the United States has lost some of its ability to inspire others.
Carothers noted that the British exported the rule of law by occupying countries for more than 100 years, but he does not believe this approach is palatable today.
Schmoke pointed out that promoting membership in organizations such as the World Trade Organization or the World Intellectual Property Organization may be a way to drive cultural change.
Edwards then asked the panelists whether or not separation of church and state is intrinsic to the rule of law.
Carothers responded that in Great Britain there is a state religion and the absence of a constitution, yet the rule of law prevails. He suggested several fundamentals of the rule of law: those in power must be subject to the law; there must be fair and equal treatment under the law; basic rights must be protected; governmental power must be restrained with regard to the individual; and laws and their dissemination must be predictable.
Also, Carothers noted that in Singapore, where there appears to be a rule of law, the key power holders are not bound by the laws in the same way as most citizens.
“We should not confuse the rule of law with the rule by law,” concluded Edwards.
Janice Hyde is a program officer in the Law Library.