Male Speaker:
It is now my distinct pleasure and honor to introduce to you the Law Librarian of Congress, Dr. Rubens Medina.

[ applause ]

Rubens Medina:
Thank you.  Thank you very much and good afternoon.  The Law Library of Congress is pleased once more to host the celebration of our Law Day.  It is a tradition we want to keep.  And I want to welcome and thank you for coming to help us in making this a truly meaningful occasion.  We are honored today with the presence of Senator Lindsay Graham, our guest speaker, and judge Harry T. Edwards, who will moderate our distinguished panelists as they explore the concept of the rule of law and what it means to established and emerging countries.  We will recognize our panelists individually as they are introduced by the judge in a moment.  

It is important that this dialogue takes place today on Law Day.  It is our response to what 50 years ago President Eisenhower stated when he proclaimed the first Law Day as "a day of national dedication to the principles of government under the law."  Since then we have observed the concept rule of law be frequently challenged in the domestic setting as well as on the global stage.  The Law Library of Congress, an institution that has been cultivating and advocating rule of law principles for well over 175 years, is committed to foster the public's understanding and challenge the public perception through discussions such as this of the role law plays in free societies.  Today our program I know will address issues that are current, topical, and important to government officers and to citizens alike.  

As the Law Librarian of Congress, I am privileged to work with over 100 dedicated colleagues who help support the rule of law, maintain the largest law library in the world with over 2.6 million volumes, and serve the U.S. Congress and the nation.  Together, the members of the staff, our colleagues and friends, along with an esteemed panel and guest speaker, will pause and reflect on a free society's rule of law as it stands in the present and its likely projections into the future.  I am sure we are all looking forward to hearing our panelists.  

It is now my pleasure and honor to introduce to you Senator Lindsay O. Graham.  The Senator was elected to serve as United States Senator in 2002.  A native South Carolinian, Senator Graham earned his undergraduate and law degrees from the University of South Carolina in Columbia.  He has logged six and a half years of service on active duty as an Air Force lawyer, has served in Germany, and during the first Gulf War served stateside as Staff Judge Advocate, where he prepared members for deployment to the Gulf region.  Since 1995, the Senator has continued to serve his country in the U.S. Air Force Reserves and is the only U.S. Senator that serves in such a capacity.  Senator Graham serves on five committees in the U.S. Senate: Agriculture, Armed Services, Judiciary, Budget, and Veterans Affairs.  Please help me to welcome our Senator Graham, please.  

[ applause ]

Lindsay Graham:
Thank you.  Thank you.  Thank you.  I wonder if I have any overdue books.  I hope I don't.  I have kind of bad memories from libraries in the sense that I was forgetful about bringing books back.  But what a beautiful setting, what a great place to celebrate the rule of law, the 50th anniversary of what President Eisenhower initiated as a national day of education and understanding, and he would be disappointed you picked me.  I mean, I feel very inadequate compared to my colleagues up here on the stage.  But I love the law.  I enjoy politics, but I love the law.  I've been a South Carolina lawyer for many years now.  I've had all kind of cases, you know, who owns the bird dog.  I've done a lot of divorces, and I'm still not married.  That's probably why.  

But the law is just something that intrigues me and keeps us pointed in the right direction when politics won't.  And I try to explain this when I go to Iraq.  And I don't know if the interpreter can understand what I'm saying, but I do talk slow naturally, so that kind of helps him.  But the bottom line to me, the rule of law at its heart is that if you ever find yourself in a courtroom, it will be about what you did or are alleged to have done, not who you are.  

Now that's a very high concept to embrace.  And we've struggled as a nation and still do.  How many courtrooms are there in America where people wonder, is it about my economic condition?  Is it about my race?  Is it about my affiliation with one group versus the other?  And you can look through our history and find many examples of where the jury verdict was probably not about the evidence but about events or maybe who the person was in front of the court.  But we struggle to keep that at a minimum.  And that's why procedure and process matters.  

You know, this whole idea of being a lawyer and representing guilty people -- you know, I'm constantly asked by my colleagues, "How can you represent someone that you know is guilty?"  I said it's not about my relationship with the client exclusively.  It's about the idea of checking power.  You know, I live in a business of 50 plus one, where it's "Rah, rah, rah," you know.  It's loud; it's nasty.  And it's not always fair.  The law has to be a different place.  It has to be a quiet place where you park politics at the door and you evaluate the evidence.  And you have some pushback against the government.  And that's the role the defense attorney provides.  Regardless of the nature of the charge, what would an established country be like without some advocate representing the most unpopular among us, challenging the government to do it right?  

Now that's the whole foundation of the law in an established nation to me, is to keep check on emotion.  The most unpopular curmudgeon in town who is very wealthy, that nobody likes, shouldn't have his money taken because nobody likes him.  The most loud, obnoxious person, who people don't want to be around, with the weirdest ideas, should never be convicted because of that.  Now that means an adversarial system, where you have a fair-minded judge who owes nothing to anyone other than the law and justice.  

And I worry in an established nation like the United States that our confirmation process in the Senate is going to erode judicial independence.  I worry that our pay scales are lagging behind where they should be for federal judges, and that you're not going to be able to recruit the best and the brightest.  So as we celebrate the law today and realize what it means to us as an established nation, let's be ever mindful of taking care of those who administer justice, that when they come to the Senate, that they can't be taken down because one special interest group doesn't like a decision they may have made regarding abortion or guns or you name it.  And what I see happening in the confirmation process in America is a politicization that over time is going to drive good men away from wanting to be judges.  When you mix in the pay problems, we've got a crisis brewing.

Two-thirds of the candidates for federal judgeships 20 or 30 years ago came from the private sector.  That's about to be reversed because of pay.  So now's the time for Republicans and Democrats to recommit ourselves to establishing an independent judiciary that can attract the best and the brightest among us, not only from the public sector but from the private sector.  So 50 years later my message to you is that an adversarial system that will allow people who have a dispute to go to court and get it resolved without having to take up arms is in jeopardy.  And let us rededicate ourselves to try to protect our judiciary from a move to politicize it and not to pay it an inappropriate amount so we can attract the best and the brightest.  

Iraq.  I've been to Iraq 11 times.  I can't tell you in two or three minutes here what it's like to step out into that country and say, "I want to go a different way."  There's a real rich history in Iraq of the law.  The Baghdad University Law School is one of the oldest and most recognized in the Mid-East.  But to be a judge in Iraq now, you risk not just having bad things said about you in the Senate, you risk getting killed.  There are a lot of American law schools now helping the law schools in Iraq.  And I've been over as a judge advocate twice in uniform, working on rule of law programs to try to create an independent judiciary that's not aligned with sectarian interests but the national interests of Iraq.  I've been very impressed with the quality of people I've met, with their desire to move their nation forward.  

And democracy is not just voting.  There are plenty of places on the planet where you can vote.  Saddam let people vote.  He did very well, by the way.  I haven't quite got the numbers he did.  It makes one think it might have been rigged.  To me, in established nations, the rule of law serves a very important purpose.  Not only does it check power by an adversarial system, it is a place to protect losers.  In a democracy you can lose the election, but no one comes and takes your property.  No one takes your voice away, your ability to try again, to have a say in a minority.  In too many places in the Mid-East it's winner take all.  That's why people fight so hard.  There is no system in place yet in Iraq that people feel comfortable enough with to lay down their guns and have their day in a courtroom if they're in a minority status.  

That's what the law can do for developing nations.  It can create a sense of security among the minority populations, among the less fortunate, that they don't have to take up arms, and they don't have to leave.  So, ladies and gentlemen, as we celebrate 50 years of recognizing the role the rule of law plays in our nation, please do not lose sight of the fact that the rule of law is the one thing that can make this world a better place, more than any other thing I can think of.  Where it exists, where there are fair-minded judges, an honest prosecutor, a well trained, aggressive defense counsel, there's a sense of security and well being that allows the entrepreneurial spirit of mankind to flourish.  Where it is absent, there's a sense of dread and fear that stifles hope, that puts boundaries around the population, that will keep them enslaved.  

I have believed since 9/11 that our nation has been in a state of war with an enemy that doesn't wear a uniform, that has no allegiance to a particular country or capital, that's bent on destroying our life.  As a military lawyer, I've tried to create a system as a senator that would recognize that people at Guantanamo Bay are warriors, not common criminals, and that the rule of law in the area of armed conflict is different than it is in domestic criminal law.  And that's very controversial.  The right of habeas has never been granted to prisoners of war before, nor should it be in this circumstance in my opinion.  But what we have to do as a nation at Guantanamo Bay or any other place where we put prisoners on trial who wish to destroy our way of life is prove to the world that our values systems are better than theirs.  

I know what happens when one of our soldiers are captured in Iraq and Afghanistan.  I know what is done to them.  But I believe the fact that we have a system, that we're trying to create a system that will allow the person to be convicted, if convicted, based on competent evidence, to allow them to have a say and challenge the evidence, to have a judge who's impartial, an independent appeal process to look at the work product, makes us stronger not weaker.  To those who believe that rules and regulations regarding the treatment of detainees makes America weaker -- [ skip in audio ] -- not them.  And my hope is that over time we can demonstrate to the world and to those who are sitting on the fence, "Lay down your gun.  Participate in society through a representative process.  And adhere to the law.  Because the law, when properly applied and properly implemented, will protect you from passion and politics better than anything I know."  God bless you.  Thank you for having me. 

[ applause ]

Male Speaker:
I am honored to introduce to you the moderator of today's panel, Judge Harry T. Edwards.  Judge Edwards was appointed to the U.S. Court of Appeals in February 1980.  He served as Chief Judge from September 15, 1994, until July 2001, and then took senior status on November 3, 2005.  He graduated from Cornell University in 1962 and the University of Michigan Law School in 1965.  Since joining the court he taught law at Harvard, Michigan, Duke, Pennsylvania, Georgetown, and is presently a visiting professor at NYU School of Law.  

He has co-authored five books and published scores of law review articles on federal courts, legal education, professionalism, judicial administration, labor law, equal opportunity, and higher education law.  In the year 2000, he moderated an international symposium entitled, "Corporate Law" -- excuse me -- "Corporate Power, National Sovereignty and the Rule of Law in a Global Economy" that was hosted -- jointly sponsored by -- the Law Library of Congress and the NYU School of Law.  Ladies and gentlemen, Judge Edwards.

[ applause ]

Judge Edwards:
It's a pleasure for me to welcome you to this 50th anniversary celebration of Law Day.  The idea of Law Day came to fruition on February 3, 1958 when President Dwight D. Eisenhower proclaimed a day of national dedication to the principle of government under law.  On April 7, 1961, Congress passed a joint resolution designating May 1 as Law Day.  The resolution provided that Law Day should be a special day of celebration by the people of the United States to show appreciation of their liberties, to rededicate themselves to the ideals of equality and justice under law, and to further cultivate the respect for law that is so vital to the democratic way of life.  Every president since President Eisenhower has issued a Law Day proclamation.  And the American Bar Association has followed a practice of selecting a theme each year to promote Law Day events.  The theme this year is "The Rule of Law: Foundations for Communities of Opportunity and Equity."  

Senator Graham has already suggested some important issues to think about with respect to the rule of law.  You will soon hear from the members of our panel, who will weigh in on these and other important issues.  And as you can see from their biographical sketches on the program, our panel consists of preeminent scholars and practitioners, each one of whom is a recognized expert in areas pertaining to rule of law initiatives.  I'm not going to take time away from their time today to give their biographical sketches.  You have their sketches.  And trust me, they are preeminent.  I'm honored to participate with them today.  It's a real honor to be with such a distinguished panel.  The panel's been asked to discuss what the rule of law means to established and emerging countries.  Before we hear from the experts, I'd like to put the subject in context, to give it a sharper focus.  

The rule of law is not an easy concept to describe.  However, Tom Caruthers, one of our panel members does a good job in his book Promoting the Rule of Law Abroad, where he explains in part that the rule of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone, including the government itself.  I view the rule of law as central to the existence of our democratic society.  Some scholars suggest that the rule of law is not a single, unified good, but is composed of at least five separate socially desirable ends: first, government is bound by law; second, equality before the law; third, law and order; fourth, predictable and efficient rulings; and fifth, human rights.  These ends are distinct and likely to meet different types of support and resistance within countries undergoing reform and often in tension with one another in practice.  However, as Professor Brooks has pointed out in her book, Can Might Make Rights?, where the rule of law exists, life is reasonably orderly and stable and no one needs to fear unfair persecution or abuse of authorities.  

I've always thought of the rule of law as both concrete and aspirational.  It's concrete in the sense that in legal political regimes that embrace the rule of law, we can see published and enforceable norms governing the actions of government officials as well as interactions between the government and citizens, between citizens, and between recognized states and regions within a country.  We can also see reasonable opportunities for citizens to participate in governance, the protection of fundamental rights for all citizens, transparency in government, and an independent judiciary.  And we can see equal justice under law, which insures that all citizens, no matter how well connected, rich, or powerful, are judged for their actions by the same laws equally applied.  

The rule of law is aspirational in the sense that societies can exist without it, say, for example, where a country is governed by a dictator.  It's also aspirational in the sense that societies that profess to embrace the rule of law can fall short of its goal, say, for example, as a result of government corruption, election fraud, and invidious discrimination against citizens.  But in my mind the concept of the rule of law is a true treasure, not only because of its inherent worth, but because of its capacity to facilitate, even promote, change for the better.  

A society founded on the rule of law constantly struggles to find the right balance between serving the common good, insuring equal justice under law, and protecting individual liberties.  This is no mean feat, and we often suffer profound failures in our efforts.  Nonetheless, we are reassured in knowing that the rule of law never admits of stagnation, so we continue to pursue noble ends as a society.  And we have the capacity to achieve these ends, because the rule of law implicitly encourages societies to seek goodness in defining its system of laws, in protecting political and civil liberties, and in affirming individual rights.  

Today the challenge for the panel is to consider what the rule of law means to established and in particular to emerging countries.  Rachel Kleinfeld recently addressed this issue in an interesting paper entitled "Competing Definitions of the Rule of Law."  She first suggest that definitions of the rule of law fall into two categories: those that emphasize ends that the rule of law is intended to serve in society, and those that highlight institutional attributes believed necessary to actuate the rule of law, such as well functioning courts.  Ms. Kleinfeld then argues, and I quote her, 

These two different ways of defining the concept of the rule of law are often conflated and confused.  Current definitions of the rule of law used by organizations working to create it abroad tend toward ad hoc laundry lists of institutions to reform mixed with high flying rhetoric about the ends the rule of law is expected to accomplish.  If institutional reform led directly to improvements in the rule of law ends, the rhetoric might be justified.  Yet because achieving such ends requires reforms across institutions, while institutional reforms are generally carried out within single institutions, institutional reform can be undertaken with no significant effect on rule of law ends.  

Definitions based on institutional attributes lead practitioners to measure the wrong things to determine success and poorly devise reforms.  Rule of law institutions can undermine rule of law ends.  In short, if we focus too much on institutional attributes in defining our rule of law goals, this may have serious repercussions for the success of rule of law building strategies.

Our panelists are uniquely well qualified to address this issue and related questions.  So it will be very interesting to hear from them today as we consider what the rule of law means to established and particularly to emerging countries.  Each member of the panel will now speak for five minutes.  And following their opening remarks, I'll then raise some questions with the panel to allow them to amplify on their views.  I'll then open the floor for a few questions from the audience.  Our first panelist will be Rob Boone.  Rob?

[ applause ]

Rob Boone:
Thank you [ unintelligible ].

Male Speaker:
Yeah.  Go ahead.

Rob Boone:
First of all, thank you Judge Edwards, and to all the organizers.  It's a great honor to be here in the Library of Congress on this 50th anniversary of Law Day.  What I thought I might do in a few minutes -- and actually some of the introductory remarks of the judge I think set this up well -- is to make a few comments about promoting the rule of law overseas.  I think however one might define the rule of law -- and I think there were some good insights as to how one might do that -- Judge Edwards knows this.   I told him by -- Tom Caruthers and I are law school classmates.  So I know this is a topic that he's thought long about and written about.  

So I thought I'd focus a bit more on what the American Bar Association and others do to try and promote the rule of law.  I think to the extent the rule of law exists in a society, it reflects people's attitudes and their behaviors.  And to be sustainable, it must have deep roots in that society.  And I think the point about it really taking hold across the community in which one is looking, so it's not just judges and lawyers and the members of the legal profession.  It's a long-term endeavor to promote the rule of law.  What we've seen in our work -- we've been doing this since 1990.  We're now in 42 countries around the world.  And much of what we do is training, technical assistance, legal technical assistance, indeed with judges, lawyers, law schools, members of civil society. But from our experiences, I think one of the things that we know is that that's not enough and that one also needs to promote a culture of lawfulness within a society.  In other words, structural reform is necessary, but it's not sufficient in successful rule of law promotion.  

What do we mean by a culture of lawfulness?  One might consider it as a fundamental trust and respect for legal norms and institutions, such that laws are followed, even if they're not vigorously enforced.  We're told that colleagues at Columbia University and Berkeley did a study two years ago in 2006.  And one of the things that they concluded -- this was a study of United Nations diplomats in New York City -- and what they concluded was that the diplomats who came from countries where, by whatever measure, there were thought to be low levels of corruption, that those diplomats actually paid their parking tickets in New York City, even though there was going to be no enforcement or despite arguably a legal obligation to do so.  

One of things about these types of societal attitudes is that they're much harder to change than institutions -- and I think that's a concept that Judge Edwards has put on the table -- because these attitudes are deeply embedded among a society's members.  To help change and promote rule of law in this requires a long and sustained effort that's committed not only to developing accountable and ethical institutions, but also broad based civic education programs.  In this way, technical providers must work and learn from other civil society actors to work on promoting this culture of lawfulness in a particular society.  At the ABA, legal education reforms have been a focus of much of our work, particularly some of our early work on clinical legal education, law school curriculum reform.  But in recent years we've increased our emphasis on civic education to help promote the rule of law.  And we've been doing that in increasing fashion.  

I just want to give you two very small examples from two different countries, probably something that people might not think of when they think about the work that one does with, again, the legal profession: judges, justices, prosecutors, defense lawyers.  In Kosovo last year we launched, in conjunction with the Kosovo Chamber of Advocates and the judiciary -- was a public service announcement campaign with something that -- a character actually known as Justice Kid.  And this was the first ever basically cartoon character developed in Kosovo.  And I just use that as an example, because what this has been used for, obviously for very young people, is to promote the concepts of gender equality, rule of law, and human rights.  And of course the idea is to, you know, try and promote this civil education to young people at a very early age.  And, you know, it's obviously something that's going to be very difficult to measure over time.  But while, you know, the adults in the legal profession are being trained on their institutions, the idea is also to instill this sense of some of the attributes the judge mentioned, in terms of fairness and equality, among the younger population.  

Another small example is in Kyrgyzstan.  For the last couple of years we've been working in the Islamic schools and other madrasas in providing, again, legal and civic education through what was known as the Street Law Program.  And basically what this does is it allows law students to go into junior and middle school and help pass on, you know, what they've learned about the study of law, the practice of law, and pass it along to the younger people.  And in one of these, you know, small towns in that country, there was a young woman who had wanted to be a lawyer since she was a child.  And her father prevented her from doing so.  She's now 28 years old, and she's gone through this program.  One of the things that she's committed to do is to go back to her village and teach the skills and concepts that she's learned to her younger colleagues.  

The last thing I'll say is we all struggle to articulate what the effects are, what the progress is that we're making in these efforts.  And it's very difficult because first of all sometimes one measures the wrong results, whether case loads go faster, whether there are more prosecutions, there are more incidences of corruption reported.  And it's very hard to disaggregate whether the process is just working better or the underlying substance is working better.  And I think for that reason I wanted to highlight the cultural aspect.  

The very last thing I'll say, which was just announced, and I think it reflects a different element of cultural or societal visibility in promoting the rule of law, and that's that the American Bar Association Rule of Law Initiative has just announced and just decided to give its annual Rule of Law Award to the judges and the lawyers of Pakistan, who recently have stood up for and championed the rule of law in their country and an independent judiciary and a bar free of undue political influence.  And with that I think I'll stop and be happy to take questions later.  Thank you.

[ applause ]

Male Speaker:
As Rob Boone mentioned, he is the recently appointed Director of the American Bar Association Rule of Law Initiative.  Our next panelist will be Professor Rosa Brooks, who is a Professor at Georgetown University Law School, also a columnist for the Los Angeles Times.  She's currently on leave and serving as Special Counsel at the Open Society Institute.  Professor Brooks?

[ applause ]

Rosa Brooks:
Thank you, Judge Edwards.  And thanks very much to the Library of Congress for inviting me here.  I should say that I am standing in here for my colleague and co-author Jane Stromseff [ spelled phonetically ], who was meant to be on this panel but couldn't make it at the last minute for family reasons.  With Jane and another of our colleagues I wrote a book called Can Might Make Rights?, which Judge Edwards mentioned, which looks at efforts to build the rule of law after military interventions, primarily places like Iraq, Kosovo, et cetera.  So I'm going to talk a little bit about some of the lessons that we took away from our research and what motivated that book.  

But, of course, in addition to being someone who has research and worked in some post-conflict societies in the wake of military interventions, I'm also a U.S. citizen.  I taught in the past constitutional law, criminal law, so I care very deeply about how we sustain the rule of law here in our own society as well.  And so I want to try to draw some connections if I can between rule of law issues and in societies that are in transition, post-conflict societies, and rule of law issues right here at home.  

I think you're going to hear me echo some themes that have already been raised.  That's not a coincidence.  That's because for me, my own views and experience have been very much shaped and formed by some of the work I've seen done by the American Bar Association over the years, by the work that's been done by Tom Caruthers, and so on.  So I hope that's not going to be a bad thing.  What we did in our book was my co-authors and I both through our work with non-governmental organizations and our work through, in my case, the State Department, and in my colleagues' case, the National Security Council, had spent a fair amount of time participating in various rule of law promotion efforts abroad.  

And I think we all came out of that with a little bit of alarmed sense that we were good at spending tax payer money and good at spending private money, and it wasn't completely clear that we knew what we were doing, and it wasn't completely clear that all of this money that we and others were happily spending in Sierra Leone or Kosovo at that time -- this was back in the 1990s, early 2000s -- was having any measurable impact.  And what we decided too, following very much and building much of the work that Tom Caruthers has done, was try to think hard about what do we know, what do we not know about efforts to promote the rule of law.  What do we know about what works?  What do we know about what doesn't work?  

And what we discovered -- here's the bad news -- was that we still don't know that much, and that -- I think actually we are getting better, partly because we have actually collectively figured out what we don't know.  For a long time, a lot of rule of law promotion efforts -- this is a slightly unfair character, but not that unfair -- was very technocratic, focused on building institutions, rewriting codes, refurbishing courthouses, training judges, taking the criminal code and making it better.  And we would invest a lot of money and effort, hard work by really smart, dedicated people, into doing those things.  And then we would look around and say, "Here's your rule of law.  Wait, where are you guys?  You know, you're not here."  So it was the "If you build it, they will come" school of building the rule of law.  And unfortunately a lot of the times in post-conflict societies, they didn't come.  Or they came and it turned out that they weren't that interested or they were interested in something else.  

And that's actually not terribly surprising.  And this is something I think Rob already mentioned.  Especially in post-conflict societies, you start from a negative.  You start with a deficit when it comes to faith in legal institutions and the law, because by and large the institutions of the law at best are seen by ordinary people as ineffective, weak, corrupt, irrelevant to their lives.  At worst, you're in a situation where people see judges and legal institutions as part of the problem, you know, part of the state's abusive apparatus, part of repression.  So you have a tough hurdle to get over to convince people that the law is their friend, that these institutions are ones in which they should put their trust.  

And here I want to emphasize what, in a way, if you could boil our book down to, you know, a single sentence, it would something that Rob has already said, which is that first and foremost the rule of law is a culture.  It is a culture.  You can have all the institutions you want.  You can have the nicest constitution.  You can have the best statutes, the most perfect legislation, the most beautiful org chart, and it will all -- it does not make a single bit of difference if people don't care, if you don't have human beings who are prepared to give their loyalty, put their faith in those institutions instead of, whenever there's a problem, turning to the nearest warlord, the nearest thug, turning to vigilante justice, just giving up, whatever it may be.  It doesn't matter a jot.  

This isn't to say, by the way -- and we can talk about this perhaps more in the discussion -- that institutions and codes don't matter, that they're irrelevant.  They might be necessary.  They probably are necessary in our modern world.  But they're certainly not sufficient.  You know, they don't get you there.  So if you can't get that little magic extra piece, and it is a little bit of a magic extra piece -- it's about faith as much as anything else.  You know, if you can't get people to believe in this stuff, you're going to have wasted your time.  

The problem is we're lawyers, many of you are lawyers.  I see some familiar faces here.  We're really good at rewriting codes.  We're really good at doing training workshops for judges.  We're really good at creating institutions.  That's what we train to do.  We don't know anything about creating cultures.  You know, nobody knows anything about that.  It's really hard.  We can't -- you know, when you think about some of the broken things here in our own country, you know, here in the District of Columbia we struggle to fix the D.C. school system.  

You know, for years some of the smartest people in the country in our nation's capital, a small, closed system -- it's hard to fix.  And then when you think about how -- what are the odds that outsiders can go into a foreign country, work with local people in a relatively short time with relatively minimal knowledge of culture, history, institutions, and radically alter people's cultural commitments.  You know, it's really, really hard to do.  And we don't know much about it still.  I think that we're getting better partly just at being humble and building our programs based on some humility.  We're getting better at being creative as Rob suggested, thinking about the role of popular culture, getting down even to the elementary school level at education, recognizing that this is a long-term project.  But we still have a long way to go, both in terms of developing creative approaches and in terms of figuring out how we actually measure our progress.  

Let me just turn really quickly before I close to what does that have to do with this country.  The same is true here.  And I think again, echoing some earlier comments, if the rule of law is a culture in post-conflict, post-intervention societies, it's every bit as much of a culture here.  You know, we like to congratulate ourselves, and we should congratulate ourselves for being a rule of law society, our nation founded upon rule of law principles.  And that is something to be proud of.  But the rule of law, again, is only as strong as our commitment to it.  It's only as strong as our ongoing commitment, every person's ongoing commitment to it.  

You know, we can talk about this in all kinds of different ways.  We can say eternal vigilance is the price of liberty.  We can say all kinds of things.  And it's the same concept, that we've got terrific constitution, we've got terrific laws, but when people stop caring about them, when people stop paying attention to them, the rule of law can go down the drain pretty fast in this country, too.  And there is a connection between what happens in this country and our capacity to promote the rule of law in other countries.  Senator Graham talked about Guantanamo.  That kind of issue, when we as Americans in particular try to go to places like Iraq and spread a message that says, "We hope that you will consider different kinds of institutions, different kinds of values.  We want you to give your trust, to put your faith in rule of law institutions," that's a hard sell no matter what.  It's a harder sell when there's anything at all that creates even the appearance that we ourselves are not fully committed to those values in tough times as well as in good times.

I think I'll stop here and we'll take up these issues, I hope, in the discussion.

[ applause ]

Male Speaker:
Thank you, Professor Brooks.  Our next speaker is Thomas Caruthers.  He's the Vice President for Studies of International Politics and Governance at the Carnegie Endowment for International Peace.  And as has already been mentioned, Mr. Caruthers has wide experience in this area and has written extensively.  So it will be interesting to hear his comments.  Tom?

[ applause ]

Thomas Caruthers:
Good afternoon.  Ten years ago I wrote an article entitled, "The Rule of Law Revival."  In that article I described something that struck me very much at the time, which was that everywhere on the international stage, people were proposing the rule of law as the answer to policy challenges.  At the time Russia was stuck in a terrible financial crisis, and people said, "If only they would establish the rule of law, they could get out of it."  People were wondering if China could sustain its remarkable economic growth, and they said, "They need to create the rule of law in order to give it a solid foundation."  

Mexico was struggling with drug traffickers trying to take over state institutions, and people said, "Mexico needs the rule of law."  Rwanda was coming out of terrible civil conflict, and in fact genocide, and people said, "What Rwanda needs is the rule of law."  Everywhere I looked, I saw what seemed like almost a magical incantation, which was we need the rule of law.  I actually considered at the time something called "The Rule of Law Cookbook," since cookbooks seem to sell so well in this country, and they seem to always be in search of a new theme.  It occurred to me that this might be the time for such a book.  

Why was the rule of law everywhere on the international policy stage?  Well, if you will remember the 1990s was the decade when around the world two interrelated transitions were being attempted by many countries: the transition to market economics and a transition to democracy.  And it appeared to many people that the rule of law was key to both those things, that in order to have a well functioning market economy you need property rights, transactions, you need good contract law, and so forth.  For a well functioning democracy, you need political and civil rights, you need real constitutionalism, and so forth.  

And so in that article I said the rule of law is appearing to many people as what I called the elixir of transitions, a kind of magic potion which you pour into a transitional situation and that will help it move along.  Ten years later since I wrote that article, to my surprise -- because I can tell you that in the world that I live in of international development work and international political work, fads and fashions are common.  Ideas surge forward and then they pass away, and people get a new enthusiasm.  But the rule of law is still there.  And if anything it commands even greater attention and respect and even desire today than it did 10 years ago.  People are still struggling with transitions to capitalism, transitions to democracy in many parts of the world.  And some policy experts still think the rule of law -- I think correctly -- is key to those things.  

And in addition, as you know in this decade, there've been some very difficult experiences like that in Iraq.  And people say, "Ah, rule of law, that's what we need.  If only Iraq" or Afghanistan or Pakistan, and so forth, "had the rule of law, they would be better off."   And there's a continual sense of discovery about this field.  People read my article from 10 years ago and come to see me and say, "I had no idea people were already thinking about this 10 years ago.  I just discovered it.  I'm really excited about it."  And I say, "Well, you know, it wasn't even just 10 years ago.  There were some people a long time ago, whether it was Greek philosophers or the founding fathers or Montesquieu or lots of other people who thought of this.  There's this continual sense of discovery about this field.  

Now it's remarkable how wide this consensus is, because the characteristic of this decade, and in fact a very troubling characteristic on the international scene, is that the amount of consensus about basic concepts is actually decreasing in my opinion.  And it's a troubling tendency.  If you want a good argument, try the following.  Go to the Middle East, go speak at an Arab university and stand up at a panel like this, which I do from time to time, and tell the audience that liberal democracy is the solution for their society.  I can tell you, you will have a healthy and vigorous argument about the value of that idea.  Or go to East Asia, whether it's China or a number of other places in East Asia, and propose Western liberal democracy as a solution for their political challenges.  

Similarly, the same is true with market economics.  It sounds good here in Washington and here in the United States.  Try going to many South American capitals and telling that audience of people, "We know the right answer for you; market economics, globalization, more capitalism."  Again, you will have a healthy argument on your hands.  The same is true if you go to many parts even of Europe and argue about the value of strong capitalism. 

On the other hand, you can go anywhere in the world in my experience and speak to a room full of people and say, "I believe that the rule of law would be good for this society," and you will meet with contented silence.  And afterwards people will come up to you and say, "Do you know how to do this?  We need this badly.  Help us.  We've got corruption.  We've got crime.  We have lawlessness in the government.  We need this thing you call the rule of law."  They don't argue about whether it's a Western or a non-Western concept.  They don't argue about whether it's bad for poor people and good for rich people like they do with capitalism.  They say, "We want that."  Why is that?  

Why does this one concept have such appeal?  I think there are two reasons.  There are probably a number, but two strike me.  One is that the rule of law speaks to the human desire for justice.  The human beings around the world disagree tremendously about concepts that we hold to be universal, like freedom.  We tend to think, "Doesn't everybody want freedom?"  Well, when you go to other cultures and say "freedom," on the political side a lot of people hear "chaos" or "hyper individualism."  Or if you're talking economics and you say "freedom," they hear "unprotected capitalism."  What about social protection?  But if you say "justice," everyone in the room thinks, "Yes."  Now they may have different things in mind, as I'll talk about, but justice is a concept that appeals almost universally.  It's no coincidence that the name of political parties formed by Islamist movements in the Arab world, Southeast Asia and elsewhere -- they are called the parties of justice or the parties of justice and development, because they're trying to reach the common person with a concept that speaks to them.  So it is this notion of justice that is so powerful and so universal.  

And secondly, the rule of law concept is unusually broad.  It's a capacious idea in which people from different points of view can find what they want.  And so people more or on the right side of the political spectrum, conservatives, will look at the rule of law and say, "Law and order, I like that.  Property rights, I like that.  Good treatment of foreign investors, I like that."  People on the left side of the political spectrum may say, "Political and civil rights for the poor, empowerment of the disadvantaged, fair treatment, I like those things."  People in the center may say, "Government accountability, the technocrat's dream of transparency and fairness of governmental action."  Everybody can find in the rule of law what they want.  

Now this leads me to my last point, which is that the consensus on the rule of law is impressive, but it may be less deep and less secure than it may appear at first sight.  Because it's not just that this definition is broad, in which people find many things; there are competing definitions out there.  To put it in simple terms, there's a kind of a minimalist definition and a maximalist one.  The minimalist one is very economic oriented, and it focuses on procedural fairness, efficiency.  Economists say, "We need the rule of law to make the economy work in a predictable and efficient fashion."  People who are more politically oriented say, "No, the rule of law is intrinsically linked to democracy.  It's about rights.  It's about the treatment of individuals by the government."  
And so you can have a meeting, or you can sit down with a minister of interior from another country and say, "I'm sure you want the rule of law in your society."  And the minister of interior will nod and say, "Oh, I definitely want the rule of law in our society."  And it may not be clear that you and that minister, or the World Bank and that minister, or a group of intellectuals in that room meeting together with their government, they can agree on the rule of law, but they're not necessarily agreeing on as much as they may think.  And so we have to be careful as we use this incantory word that is so attractive, that we really push hard to think what is the consensus that we feel we have achieved.  

You see this most particularly in this decade with China and Russia, two societies, two countries, with which the United States is feeling a great deal of challenge these days.  It's getting along less well in security terms with Russia than we did 10 years ago.  From China we're feeling a sense of a rising economic -- not necessarily threat, but certainly a challenge.  And what's interesting is we find in Russia there was elected eight years ago a president who promised to be a rule of law president, Vladimir Putin.  That was his slogan.  He was going to bring the rule of law to Russia.  Many Russians think he has done so, at least in certain ways.  

In China, the Communist Party decided early in this decade that in order to respond to citizen discontent, they would provide more rule of law.  So on the one hand it's a term that implies consensus, but interestingly the very countries with which we feel the most challenge and rivalry are making that their theme.  This is what makes me think we need to be more careful in thinking about to what extent do we really agree around this term.  Yet at the same time I remain with a basic faith that it's good that people are using this common language.  We simply have to go deeper into it and understand it further.  Thank you for your attention.

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Male Speaker:
The last panelist before we take some questions will be Kurt Schmoke, the Dean at the Howard Law School and formerly the Mayor of the city of Baltimore.  

[ applause ]

Kurt Schmoke:
Thank you very much, your honor.  Ladies and gentlemen, I will be very brief.  I can say amen to everything that you have heard.  I wanted to take just a few minutes, however, to give you a very concrete example of the importance of the rule of law and one aspect of that in a country in Africa.  I was drawn to this topic because of recent events that we've all been watching in Zimbabwe as President Mugabe has also mouthed a commitment to the rule of law but seems honor it in its breach each day.  But this particular example also shows what can happen when the United States is committed to the rule of law and expresses that commitment in countries overseas and really brings about a tremendous benefit to many people.  

The country that I'm speaking of is Madagascar.  Madagascar, as you know, a large island nation off the east coast of Africa, held a presidential election in December of 2001.  That's an important date to understand, because as you know it was just a year after a very controversial here in the United States, in which the courts played a major role in the resolution of that election.  Well, what occurred in Madagascar in 2001 was this.  The president of the country, a man named Mr. Ratsiraka, had been in office for a number of years.  Over a 20-year period he had gone from being a great opponent of the United States, close friend of Colonel Qaddafi and others, to being a close friend of the United States.  In fact he was a great ally of the first President Bush, President 41.  He decided to stand for re-election in 2001.  And he was challenged by a man named Mark Ravalomanana.  Mark Ravalomanana was the mayor of the capital city in Madagascar.  As a former mayor, my support was for Mark.  

But he had done some remarkable things in his community; reaching out to business leaders, to communities.  He had a real can do attitude, brought about some change, great sanitation, improved public safety in the city.  And so he challenged the incumbent president.  There were actually six people in the race.  And normally in that type of situation there is going to be a runoff because no one was win 50 plus one.  As Senator Graham mentioned in his world, it's 50 plus one.  But Mr. Ravalomanana decided that that was his goal, to try to win on the initial ballot so there wouldn't be a runoff, because he thought that the incumbent would control the runoff.  

Well, in fact, much to everyone's surprise, the mayor ran a strong race, did indeed come in first and got more than 50 per cent of the vote.  But the incumbent decided all of a sudden he no longer supported the rule of law and refused to leave office.  This created a great crisis.  It could have resulted, as we are seeing now in Zimbabwe, in armed forces clashing.  What did happen was that some of the supporters of the president decided to take up arms, but the army itself decided not to move -- very, very important.  

The matter then went to the courts.  And the high constitutional court initially decided there should be a runoff.  Then they looked at the results and said no.  Even without hanging chads or anything, they decided that the mayor had actually won.  And so the court stepped forward and said that the challenger won the election.  The incumbent president then decided to flee the capital.  But when he fled the capital, he ordered all of his troops to blow up the bridges around the city, which they did, trying to isolate the city.  He then appealed to some in the armed services, "You have to support me.  We've got to fight these results."  

All the while now, the great countries like the United States and France, which had been the colonial power, are sitting back not doing anything.  And people are petitioning these governments, "Please support this process.  If you believe in the rule of law, if you believe in democracy and elections and fair elections, please support this."  The initial response of the United States was, "No, we'll let the Organization of African Unity -- they can get involved.  We'll let Madagascar handle it."  But then something occurred here in our country.  When people who had just been through a similar process, who had just seen tensions over an election, who had actually seen a high constitutional -- in our view, supreme court -- make a decision, which people had to respect in order to resolve the election, there was a change of heart here by our government.  And on Independence Day in 2002 President Bush sent a letter to the winner of that election, saying that United States had decided to recognize the election of that person.  And so Mayor Mark now became President Mark.  And other countries around the world joined in support of that government.  

That, I think, was an important moment.  I was particularly impressed with that because while all this was going on in Madagascar, we saw military intervention in other countries.  Our commitment to the rule of law is about values.  And when we support those values, when we support fair and open elections, when we lend the credibility of our country to challenges such as what we see going on in Zimbabwe -- and unfortunately we have not been as strong there as we've been in other places -- but when we do that, we can uplift the lives of people and improve the quality of life for millions who are struggling for democracy and freedom in this world.  Thank you all.

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Male Speaker:
Are their mics live?  Are their mics -- they are live?  Okay.  There's a lot to chew on.  Where do you start?  Let me ask the panelists, in light of some of what has been said, how they react to -- there are a couple of big questions that we should start with I think.  Is the rule of law really exportable across national lines?  And if so, what's the purpose?  On what terms should we do it?  You know, foreign aid, incentives, military coercion.  And by whom should it be done?  Government, private institutions, whatever.  

And remember we've got, as Tom Caruthers mentioned here, we've got this tension between the minimalist and maximalist view of the rule of law when you think about exporting it.  And you've also got, I think, a very clear notion that much of what we're talking about is cultural.  So you're walking into other societies where the cultural dimensions are going to have a large effect on what you do, I think.  So the question -- you know, share with the audience your views -- is this really exportable or is it, as Professor Brooks said, something we really just don't know what we're doing often. We're winging it and hoping for the best?  Where are we?   Rob, you want to start?

Rob Boone:
Sure.  I've never thought of democracy as being particularly exportable.  And I guess for the same reasons I wouldn't think rule of law is.  What I think can happen in a positive sense is that people have positive experiences to share, they have lessons learned.  They can help one another.  But -- and I think some of the examples even that Tom pointed out, Russia, China, some other places -- now if it were this simple commodity that could be exported, sort of as a panacea, you know, the silver bullet, then I think we would see some different results around the world.  But I think because ultimately rule of law is something that people have to believe in, that they have to practice on a daily basis for the institutions to work, well beyond the legal profession, whether it's health care, education --

Male Speaker:
Is this a minimalist or a maximalist view that you're taking?

Rob Boone:
Well, I think rule of law --

Male Speaker:
You're talking about how to assess it, so we have to decide is it minimalist or maximalist first.

Rob Boone:
No, I was just trying to -- in terms of whether it's something that can be exported.  Yeah, I think it's something that is done by civil society actors.  I think it's certainly done by government actors.  But it's not something that is transferable.  I think the people of a society can learn from others.  They can craft solutions that fit their society, their value system, and move forward in a positive way.  But it is not a commodity in my view.

Male Speaker:
Professor Brooks?

Rosa Brooks:
I think I agree with Rob, it's not a widget.  It's not something you can put in a box and send a package to Baghdad or Afghanistan or the next place on our menu, Zimbabwe.  I think it might be better to think in terms of less the concept of exporting it as more in terms of cultural diffusion.  You know, we don't know how to export it, but that is not to say that cultures all around the world, people do look at other cultures.  They do adopt things that they like.  They reject things that they don't like.  

And I think that one thing the United States has enjoyed for many years, and is in some danger of losing, but I think we have not lost, although we're in danger of losing, is the capacity to inspire people around the world with elements of our commitment to the rule of law.  I think that historically that's been very important, that historically U.S. commitments to human rights and the rule of law have inspired indigenous dissenters, indigenous democracy movements, indigenous human rights defenders --

Male Speaker:
But at what point do we say -- say we collectively are looking at it and assessing it -- at what point do we say, "Oh, that's success."

Rosa Brooks:
You never say, "That's success."  There's no such thing.  You always say, "We're still working."  We're still working right here.  You never get to sit back and say, "We did it.  We're done."  

Male Speaker:
Tom?

Tom Caruthers:
It's certainly -- I mean these days you can't say, "The rule of law is exportable," because everybody gets upset.  But it's important to look historically and say, you know, in the British Empire the British government did export the rule of law to a lot of its colonies.  How did it do that?  Well, it occupied them and ran them for over 100 years.  Do we want to do that?  Probably not.  Do other people want to be occupied for 100 years?  Probably not.  

And so, yes it's possible for one powerful society to have a powerful effect on another society under certain very particular conditions.  But in this day and age we don't want to do that anymore.  And exportation cannot be done, as Rosa says, as a widget.  Those kinds of exportations that were done in the 18th and 19th and first half of the 20th century were transformative experiences that went on extremely long and at extremely great cost on both sides in certain ways.  And so we have to stop and recognize that theoretically it might be possible, but probably not the way we want.  

And when we look at the occupation in Iraq, we say, "This has been a very painful five years."  Well, ask the British about being in Malaysia.  Or ask the French about being in Algeria.  Occupations are sometimes very painful.  This hasn't lasted that long relative to some of those, and it's been very painful.  And so exportation is possible but probably not something we want to be doing these days.

Male Speaker:
Is there any way in your experience you can somehow break through the cultural problem?  In other words, when you look at a situation, how do you think about -- I mean, all of you have said things to suggest that this really about culture.  I mean, it's hard for us to find what is the bottom line, [ unintelligible ] we're looking for, how do you break into culture?

 Kurt Schmoke:
I think we talked a little bit about culture, but what we haven't talked about as much is economics.  I mean, for example, you can export rule of law when you're looking at things like World Trade Organization.  When a group of countries can say, "You will not have this in your law," or "You will adopt certain types of rules regarding copyright patent, things of that --

Male Speaker:
As a condition.

Kurt Schmoke:
As a condition of getting in.  And so economics can sometimes drive --

Male Speaker:
But does that drive the culture to change?

Kurt Schmoke:
No, but over time if you change the economic system, you do have an impact on the culture.  

Male Speaker:
I mean, thinking about it from the place in which we're thinking about it, which is not political, we can just think about what's best, should certain institutions be doing this?  Or should all institutions be doing it?  And should we be monitoring how it's done?  I mean, do we just let the World Bank do its thing and we do our foreign policy and then private groups do their things and scholars do their things?

Kurt Schmoke:
It's not what we wish, but it's what's going to happen.  I think that yeah, there's so many competing forces internationally, that there's no central control on it.  So I do think that you're going to see this conflict in how the rule of law is to develop in each country, driven by private forces and public forces.

Male Speaker:
Let me take an easy question to build on and come back.  In our notion of rule of law, does there have to be separation of church and state?  

Rosa Brooks:
Not necessarily.

Male Speaker:
Tell me how it plays out then.

Tom Caruthers:
Well, if I take a plane and get off in London, there's an official state church in Great Britain.  And they also don't have a written constitution.  They don't have separation of powers in the way that we think of.  Yet Great Britain certainly has what we would call the rule of law.  There is this American tendency, especially sitting in hallowed places like the Library of Congress, to think that very particular features of the American system are intrinsic to the rule of law.  Yet when you go abroad -- and you don't even have to go very far, as I say, go to Great Britain, and fundamental features of those elements are absent.  Yet they seem to manage to stumble along in their own fashion.

Male Speaker:
Muddle along.

Rosa Brooks:
Judge Edwards, I think that that gets to part of maybe what the answer is to your first question.  You can't export the rule of law.  I think we're all certainly emphasizing the importance of being pretty humble about our capacities to dramatically change cultures not our own.  We struggle to change our own, much less cultures not our own.  But that's not the same as saying that we should give up, that we can provide people in other societies who are themselves struggling to define for themselves the rule of law, we can provide them with tools, with resources, we can create -- including through international institutions -- we can create incentives.  There are some -- it's not that we can do nothing, it's just that we can do less than we sometimes --

Male Speaker:
So I want to come back to my first question, which you all are trying to avoid.  So you say, Tom, look you go to Great Britain and they don't have separation of church and state, but they have the rule of law, they're muddling along.  What are we saying?  What is it that you think is intrinsic?  What is the bottom line that you're looking for that you can say -- not because we have a right to make others do what we want to do, but you can say to yourself when looking at this society, "If they have at least this, in my mind they have the rule of law."  What is the "this"?

Tom Caruthers:
Well, I think there are several key principles to it: sort of fair and equal treatment before the law for all persons within the society, and above all power holders, so that power is subordinated to law; as well as a set of basic rights that insure a restraint of governmental power with respect to the individual; and a certain amount of --

Male Speaker:
Including abortion, homosexuality?  Does that get in there?

Tom Caruthers:
No.

Male Speaker:
Okay, so how do we know that?

Tom Caruthers:
Neither of those are mentioned in our Constitution, if I remember correctly, at least directly.  I mean, different societies can come to different decisions about many social issues based on --

Male Speaker:
On many human rights issues?

Tom Caruthers:
On human rights issues and on social rights, economic rights, political and civil liberties, and make different choices.  In France, people can be locked up for a certain amount of time without the police having to report on this.  Here there are different standards.  Countries can disagree about this, but there are certain underlying principles of fair and equal treatment, predictability of the law, the law is known to people, power holders are submitted to the law, and --

Male Speaker:
What was the last one?  I'm sorry.

Tom Caruthers:
Power holders have to be, you know, subordinate to --

Male Speaker:
Right, government is subordinate to --

Tom Caruthers:
One can create a basic framework and say, "These are things from which you make these more specific decisions about whether you wish to allow homosexuality, whether you wish to allow abortions," and so forth.  But these are decisions that will follow from basic principles.

Kurt Schmoke:
I don't know if independent judiciary --

Tom Caruthers:
Yeah, I was going to say --

Male Speaker:
Independent judiciary?

Kurt Schmoke:
-- in your --

Tom Caruthers:
It depends -- without trying to sound too technical -- it depends what you mean by independent.  Because in civil lawsuits --

Male Speaker:
-- that I won't get shot when I make a decision is one way.

Tom Caruthers:
Yeah, I mean civil law systems like Germany and France, judges are not independent in the way that they are here in the same sense.  They're civil servants who come up through a professional track in a different way.  But what we mean, the core of that is we mean the phone doesn't ring and somebody tells him, "Make this decision."

Male Speaker:
Correct.

Tom Caruthers:
They're allowed to make their own decisions based on law.  But --

Male Speaker:
-- based on their system of --

Tom Caruthers:
Yeah, but the idea of an independent judiciary as a third branch of government is something more particular to commonwealth systems.

Male Speaker:
As a rule of law -- let me add one, Bob, then answer both -- you can start.  Does the rule of law also include the notion that individuals within the society have a right to participate in governance in any way?  And if so, what?  What does that mean?

Tom Caruthers:
Two things I'd say.  One is I'd just expand on the notion of the independence of the judiciary.  I think it's really the judiciary and the legal profession writ large.  So I think it's the lawyers -- and in some ways it goes to your last question, in terms of access to justice.  I think for there to be a strong rule of law in a given society, that the more the people -- it doesn't have to be a democratic system -- but the more that the people are vested in their form of government -- they may choose different forms of government, whether -- the full range of governmental systems that have existed.  But I think the more the people have a stake in their government, whatever the processes, whether in terms of, you know, liberal Western democratic elections or otherwise, the more stable, the most long lasting, the more developed that type of rule of law is --

Male Speaker:
Can you have a strong dictatorship with the rule of law?

Tom Caruthers:
I think almost by definition if there's a dictator then you're getting back to the point about power being greater than the laws.

Male Speaker:
I'm the dictator; I'll make all the laws.  I'll live by the laws that I make, and you'll get a fair trial on the laws that I've made.

Tom Caruthers:
Right, but then I think it comes back to the other principles of fairness, et cetera.

Male Speaker:
So we want some kind of participation by the population?

Rob Boone:
Well, I mean, I think -- you know there's an expression in Portuguese which says, "For my friends, anything; for my enemies, the law."  

[ laughter ]

That's ruled by --

Male Speaker:
-- by law as opposed to law --

Rob Boone:
-- is not subordinated to law and law does not apply equally to power holders as to common citizens.  And so, you know, the government of Singapore is a non-democratic government in which, if you spit on the street, you may come and, you know, be arrested by a very efficient police officer and so forth.  They have a very well developed legal system and very efficient courts.  But the key power holders in society are not fully subordinated to law.  It's the best example of rule by law.  But that falls short of rule of law in that key way.  

Now, political participation falls under that maximal definition of rule of law which says you have to have certain key political rights.  And one of those political rights in the universal declaration of human rights is the right to genuine and periodic elections; political participation in a key human rights document.  And so if you take a broad conception of the rule of law and say it includes key political and civil rights, it would have rights of political participation in it.  That's not what the Chinese government wants when it says, "We want to join the World Trade Organization.  We want to have the rule of law."  They're thinking of a more constrained definition.

Male Speaker:
I think there is a significant conceptual difference between rule by law, which is enhancing the government's position, as opposed to rule of law.  Go ahead.

Rosa Brooks:
Before we leave your earlier question, I just wanted to highlight an implication of what Tom was saying earlier when he talked about the more minimalist conception of the rule of law, having to do with fairness, with a subordination of government officials and political power to neutral procedures and to the same substantive laws that everyone else has to abide by.  One implication of that is that it doesn't require any particular institutional framework, that hypothetically you could have the rule of law in a small scale society in which you didn't have any formal courts, formal legislature, formal executive branch, but in which you ironed out disputes in a process in which everybody sat under the biggest tree and you just had a traditional system handed down which set the rules by which disputes were resolved, as long as everyone knew what the rules were, as long as all of Tom's criteria were satisfied.  

And the reason I think that that's -- I think that's actually important to remember that that's what this about, this project.  It's about achieving that end state.  And sometimes we get very hung up on the idea that, well, in order to get there we need such and such a set of institutions or codes.  We don't.  We need to get -- you know, we need to sort of keep our eyes on the prize.  And that's what the prize is.  And it may be that for any given situation -- you know, we live in a very complicated, global society now -- that it's not feasible for Iraq to say, "Well, we've decided we're going to sit under trees to resolve our problems."  Iraq wants to participate in the global economy.  To some extent they've got to, you know, suck it up and say, "Okay, we're going to have certain kinds of codes and institutions to enable us to fully integrate with a global economy."  But we need to keep in mind that those are means. Those are not ends in themselves.  And they are somewhat arbitrary means of getting to those ends.

Male Speaker:
One last thing before we ask if the audience has any questions, is there any such thing as a rule of law across national boundaries, or do we just assume that where countries have rule of law within, they automatically somehow are able to act -- interact pursuant to a concept of rule of law?  How do we think about it across national lines?

Tom Caruthers:
Well, there's something called public international law, which is the law of nations, in which both by treaties and by customary practice, societies are supposed to -- sometimes do and sometimes don't -- interact with each other in a way that's in accordance with certain international legal norms enshrined in the United Nations Charter and in a number of, you know, multilateral treaties.

Male Speaker:
Is that one of the reasons why we are motivated to try and promote rule of law where it doesn't exist?

Tom Caruthers:
Well, I think the United States as a society likes to believe that there's a harmony between your domestic practices of being a rule of law society at home and your practices abroad.  If you go to the Congo and say, "Tell me what the Belgians were like," because they were certainly rule of law practitioners at home.  Were they like that when they were colonialists?  No, they weren't.  So societies vary.  And the United States has not always acted in accordance with legal norms outside of its borders either, including recently.  And so, yes, we like to see that there's a correlation between the two, but certainly historical practice does not point to an absolute there.  

Male Speaker:
Any questions?  We covered it all.  It's a good panel.  They should have given you good food for thought.  And you can grab them at the reception.  This is not my world.  This is their world.  So it was fun to participate with them.  They're really quite stellar.  When you read some of the stuff that they've done, it's quite spectacular.  And it was expanding my brain when I was supposed to be deciding opinions about the Federal Energy Regulatory Commission.  And I was suddenly in rule of law.  

And they really are quite thoughtful about some very, very hard issues.  This is not an easy concept.  We say it and we think that we know what it means.  It's not an easy concept as well of our panelists have explained.  But we have a sense of it.  And I wanted to get from them to you what they thought the bottom line was.  And I think they've given you an idea of that.  And, you know, hit them at the reception if you can stay and push them a little further.  They can really take care of themselves.  And I want to thank them for begin here today.  

[ applause ]

[ music ]

[ end of transcript ]

LOC - 080501law1300	12	9/26/2008