New Hampshire Bar Journal
2005 Winter, 48.
Beyond the Rule of Law
New Hampshire Bar Journal Winter 2005Volume 45, Number 4Beyond the Rule of LawBy Attorney Charles A. Szypszak"We are firmly convinced . . . that with nations as with individuals our interests soundly calculated will ever be found inseparable from our moral duties . . .."
Thomas Jefferson, Second Inaugural Address (1805)
Self-reflection can be a reward for having to explain yourself to others. For the past several years, I have worked with Russian judges and administrators in the New Hampshire Supreme Court's Rule of Law partnership with the Russian oblast of Vologda, part of the Russian-American Rule of Law Consortium, a volunteer association of legal communities in several American states and Russian regions. As a lawyer, I am expected to talk about formal laws openly adopted in a democratic process and uniformly applied. These ideas are important. Formal law expresses our expectations about rights and responsibilities and provides a mechanism for protecting individual liberties and resolving conflict. But I have become convinced of the preeminent importance of a concern that many might think is beyond the bounds of what I am expected to discuss as a legal "expert": the importance of virtue.
The innumerable social and business interactions in which we engage depend on norms of behavior that enable us to trust each other to keep our word and to act in good faith. These norms must flourish along with well-reasoned formal laws and legal procedures, not just as a moral imperative, but as an essential component of the free, just, and prosperous society that a rule of law is intended to achieve. The following explains my conclusion, first by considering the meaning of the "rule of law" and its limits; then by briefly examining the essential nature of extralegal norms that govern behavior; and finally by looking at what these norms mean for the prospects of achieving the goals of a rule of law.
THE "RULE OF LAW" AND ITS LIMITS
According to Chief Justice John Marshall's notorious phrase, "The government of the United States has been emphatically termed a government of laws, and not of men."(fn1) The United States Supreme Court continues to refer to the United States as "a society devoted to the rule of law."(fn2) Citizens contribute valuable time and effort to "rule of law" programs, sometimes at risk to themselves and those involved in other countries. What do we mean by this notion of a "rule of law" to which so much is devoted?
This is how economist Frederick Hayek described what the "rule of law" means to individuals living within it: "Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge."(fn3) Predictability of constraint is essential to liberty; yet, more than predictability is implicit in a "rule of law." Other powerful concepts embedded within the notion of a government "of laws" include a conviction that the law, to be legitimate, must be adopted through an open and democratic process, and it must be interpreted by an independent judiciary. The United States Agency for International Development, which sponsors the Russian American Rule of Law Consortium, expresses some of these broader concepts when it says that "[t]he term 'rule of law' embodies the basic principles of equal treatment of all people before the law, fairness, and both constitutional and actual guarantees of basic human rights. A predictable legal system with fair, transparent, and effective judicial institutions is essential to the protection of citizens against the arbitrary use of state authority and lawless acts of both organizations and individuals."(fn4)
Just laws and effective judicial institutions are necessary, but liberty and prosperity depend on more. Institutions can use formal laws to suppress. In 1933, Hitler used the "The Law for Removing the Distress of People and Reich" to give himself the unfettered power he needed for fascist rule.(fn5) The Soviets, who also presided over a brutally repressive regime, were expert at adopting formal rules. Their constitution cynically proclaimed that "[c]itizens of the USSR have the right to protection by the courts against encroachments on their honor and reputation, life and health, and personal freedom and property."(fn6) Yet encroachment upon life, liberty, and property occurred at the pleasure of those who controlled the state and party apparatus.(fn7)
We know that lofty constitutional principles and comprehensive legislative schemes cannot by themselves guarantee rights and freedom. Formal law does not constrain harmful tendencies or protect individual liberties unless it coexists with mutual respect for individual rights within society. Thomas Jefferson warned about confusing observance of formal law with liberty. He said that "rightful liberty is unobstructed action according to our will within the limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of an individual."(fn8) Jefferson thereby reminded us that law can be something worse than an empty or cynical exercise, and time has proved him right. To cite just one example from history, economist Frederic Bastiat, while reflecting on eighteenth century counter-libertarian movements, observed that "the law has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder."(fn9)
Jefferson and Bastiat, philosophers of liberty, knew that formal rules can oppress as well as liberate. This is true not only because law can be a tool for the tyrant, but also because legal rules lose their essential predictive function when they become too distant or unwieldy. A rational concept of "rule of law" cannot mean governance of all behaviors by fixed legal pronouncement. The power of formal law and legal process cannot possibly reach all aspects of interactions among members of a society. As Frederick Hayek said, "rule of law" "means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used."(fn10) The lawyers' Rules of Professional Conduct acknowledge the limitations of rule formalization in the opening comments, which observe that "no worthwhile human activity can be completely defined by legal rules."(fn11) Those who fail to appreciate this limitation do so at great risk. History is full of futile attempts to build a utopia by government design, including by the communist regime in Russia.(fn12)
Although many look to formal law for solutions, in practice we understand the limitations of formal law and legal process. Most exchanges necessarily occur without any government involvement and depend on cooperation and mutual trust.(fn13) As social law scholar Stewart Macaulay observed, contrary to what some may want to believe, "we must remember that the public is somewhat informed, often cynically aware of the true nature of law in action."(fn14) People can be realistic - often skeptical - about the courts' limited capacity to police behavior.(fn15) The legal process often is seen as too inefficient and unpredictable to be the guidepost...