The rule of law and the judicial function in the world today.

• Author: O'Scannlain, Diarmuid F.
• Position: 2013 University of Notre Dame-London Law Centre Lecture

INTRODUCTION

Good evening. (1) It is a pleasure to be here at the University of Notre Dame London Law Centre, and I am deeply honored to have been asked to speak from the "Judge James J. Clynes, Jr., Visiting Chair in the Ethics of Litigation within the Judicial Process." The ethics of litigation, of course, is not just for practitioners. It is also for judges. It is for that reason that the Clynes Chair has, as one of its concerns, the "practice of handling and resolving cases, both at the trial and appellate levels." While I wish to offer today some observations on that practice, I will not address it directly and at once, as would be my tendency as a judge. Rather--this being a scholarly affair--I will do my best to proceed as would an academic, taking up the question obliquely, incrementally, and only after addressing a more abstract subject to which I have lately been giving much thought: namely, that universally invoked term the Rule of Law.

I

The world's oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in Article 30. (2) Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. "[T]o that end"--and here's the line--"it may be a government of laws and not of men." (3) John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of the second oldest written constitution still in effect. Writing just over twenty years later, the great Chief Justice John Marshall would affirm, in Marbury v. Madison, that "[t]he government of the United States has been emphatically termed a government of laws, and not of men." (4) Of course, neither Adams nor Marshall was on to something new with this "government of laws" notion. The idea that law, rather than certain men, ought to govern men--or, put differently, that men ought to self-govern through law--is quite old. In Western civilization, it is as old as political philosophy itself.

We invoke it still today, perhaps more vociferously than ever before. From the lips of Socrates and the quill of Chief Justice Marshall, the principle of the Rule of Law now takes center stage in the theater of international relations. This is no doubt because, as a global community, we are painfully aware that the Rule of Law has had some bad years of late--indeed, a bad century. In the concentration camps of Nazi Germany, the gulags of Soviet Russia, the killing fields of Cambodia, and the genocidal wastelands of Kosovo, the Rule of Law was nowhere to be found (though perhaps, with enough searching, one could uncover its remains--it has a way, after all, of being tyranny's first victim). The nightmare of the twentieth century having passed, we naturally wish to do all that we can to ensure that such tragedies never happen again. As most recognize, that project begins and ends with understanding, spreading, and strengthening the Rule of Law in every corner of the globe.

A

Spearheading the rhetorical effort on this front lately has been, perhaps surprisingly to some, the United Nations itself. Last September, I had the fortune of attending the historic High Level Meeting on the Rule of Law of the 67th Session of the U.N. General Assembly. At that session, leaders from more than eighty countries gathered to reiterate not only their own commitments to the Rule of Law but to reaffirm our commitment as a global community to that principle. To that end, the General Assembly adopted a declaration. (5) "[T]he rule of law," it reads in part, "applies to all States equally" and ought to "accord predictability and legitimacy to their actions." (6) The Rule of Law, it also says, entails democracy, independent judiciaries, and the securing of human rights. (7)

This is heartening language. Still, it is just language. And perhaps, given the events surrounding the meeting, we ought not to be all that encouraged by it. After all, while diplomats in New York were busy reading listlessly from their prepared statements, the death toll in Syria climbed to 25,000 (8) and, just a week before, terrorists in Benghazi, Libya destroyed an American diplomatic mission. (9) In addition, Iranian President Mahmoud Ahmadinejad, billed to speak at the U.N. that day on the very subject of the Rule of Law, took the opportunity instead to condemn the West and repeatedly to insult Israel. (10) To many commentators, these were indications that, indeed, something more than high-soaring language was necessary to edify the Rule of Law worldwide. As a writer for The Guardian newspaper put it, "in the end, world leaders fell short. After more than a year of planning, all they could muster was another day of talk." (11) He continued, "It did not have to be this way. Back in March, [U.N. Secretary General] Ban Ki-moon had proposed much more.... The secretary general [had] called for clear goals, with benchmarks to measure progress." (12) Instead, all we got was a flimsy, content-light "declaration." (13)

Louise Arbour, former U.N. High Commissioner for Human Rights, also expressed bewilderment, but she offered a different diagnosis. (14) The problem, she wrote, was not that the U.N. or the Secretary General had lacked the spine to take concrete action toward the advancement of the Rule of Law. It was, instead, that the whole idea of the Rule of Law, framed so abstractly and described so genetically, is a non-starter. (15) "Everyone believes in [the Rule of Law] and wants to promote it. But ... it is doubtful that states even agree what the term really means," she argues. (16) "Do-gooders and democrats try to convince dictators to improve [the] rule of law," she continues, "while repressive regimes are more than happy to refer to 'rule of law' as they crack down on dissent at home." (17) In this critique, the Rule of Law is nothing more than an ideological Rorschach Test. A totalitarian looks at it and sees the need for severe laws, uniformly enforced. An egalitarian, by contrast, reads it to call for the universal provision and enforcement of all manner of "human rights"--rights to health care, rights to education, and all the rest. (18)

B

I have witnessed this confusion first hand through my work as chairman of the Committee on International Judicial Relations of the Judicial Branch of the United States Government. Established in 1992 by the Judicial Conference of the United States, the Committee endeavors to foster the Rule of Law throughout the world. (19) In fact, our panel of federal judges was formed for the express purpose of "respond [ing] to the growing number of requests for judicial assistance in newly emerging democracies and developing countries." (20) In my conversations with judges and political officials in these nations, though, I have encountered mixed conceptions of precisely what the Rule of Law is. I recall one gentleman positing that the Rule of Law was a negative thing, an authoritarian principle by which, through the trappings of legality, dictators carry out their evil flats--call it "Rule of Law, heavy on the 'rule.'" To others, it represents nothing more than Americanism in the worst sense of the word: an effort by our country to re-create other societies in our own image, with something like our Constitution, our Bill of Rights, our division of powers, and all the rest. If this is the Rule of Law, some would rather do without it.

But these, of course, are misconceptions. The Rule of Law is not a license for tyranny, be it an out-and-out tyranny or even a tyranny conferring myriad procedural rights and safeguards. Nor is it simply repackaged Americanism.

C

But then, what exactly do we mean by the Rule of Law? Let's briefly survey two accounts of the concept. The first is perhaps as close to an international, twenty-first-century consensus as we have managed to achieve: The World Justice Project's Rule of Law Index, (21) The second--and, here, I must beg the pardon of the philosophers and historians in the audience--is my own boiled-down account of the Rule-of-Law principle as developed through our civilization's intellectual history, particularly as that concept relates to the judicial function.

2. MEASURING THE RULE OF LAW TODAY: THE WORLD JUSTICE PROJECT'S RULE OF LAW INDEX

   The World Justice Project, founded in 2006 as an independent, nonprofit organization, has as its sole mission the "advance[ment of] the rule of law around the world." (22) The Rule of Law, as the Project understands it, is important not because it has any inherent moral worth, but because history has proven it so often to be instrumentally useful: "Without the rule of law, medicines do not reach health facilities due to corruption; women in rural areas remain unaware of their rights; people are killed in criminal violence; and firms' costs increase because of expropriation risk," it tells us. (23) Consequently, "[s]trengthening the rule of law is a major goal of governments, donors, businesses, and civil society organizations around the world." (24)

   Capable of being realized, the Rule of Law as applied must in some sense also be measurable. And, if that's so, the Index reasons, we would do well to measure it, if only to determine how various regimes stack up and to encourage them all to do better: "[R]ule of law development requires clarity about the fundamental features of the rule of law as well as an adequate basis for its evaluation and measurement." (25) In an effort to furnish such clarity and to provide such a basis, the World Justice Project has set out--now for the third time--to provide the world with a "quantitative assessment tool designed to offer a comprehensive picture of the extent to which countries adhere to the rule of law in practice." (26) Armed with data collected through extensive general-population...