Promoting the rule of law and respecting the separation of powers: the legitimate role of the American judiciary abroad.

• Author: Smith, D. Brooks

INTRODUCTION

The rule of law (1) is fundamental to the freedom enjoyed in the United States today. John Locke explained its essential nature well before the Revolutionary War:

Freedom of men under government, is, to have a standing rule to live by, common to every one of that society ... a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man. (2) Yet, the rule of law so central to American democracy today has deep historical roots, which long precede even Locke's lifetime. In ancient Greece, Aristotle considered a variety of constitutions before concluding that "it is more proper that the law should govern than any of the citizens." (3) During our nation's infancy, Thomas Paine wrote in Common Sense that "the world may know that, so far as we approve of monarchy, that in America the law is tang. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other." (4) John Adams later memorialized this principle when drafting the Massachusetts State Constitution of 1780, declaring "to the end it may be a government of laws, and not of men." (5) While it was clear the rule of law would play a central role in the federal government following the Revolution, the Founding Fathers deliberated carefully for eleven years before incorporating it into the Constitution in a way that would thwart tyranny and best achieve a free, yet ordered, society. (6) The success and stability of our nation today flows, in large part, from our faithful adherence to the rule of law.

In addition to its central and vital role in any strong democracy, (7) the rule of law has been described as an "unqualified human good." (8) It stands alone in terms of its extensive international endorsement. (9) There is a wide consensus among the international community that democratic values, including the rule of law, should be universal--furthered in all nations--because these values preserve and protect human dignity, facilitate accountability in government, and allow access to the political process. (10) Reflecting its own growing commitment to fostering democracy abroad, the United States has formally incorporated rule-of-law promotion in its foreign assistance efforts in conjunction with traditional monetary aid. (11) The rule of law is increasingly considered one of the most valuable American exports to developing and transitioning nations. (12)

Effective administration of the rule of law requires an independent, transparent, and accountable judiciary. (13) Because of the experience and expertise our federal judges gain in their domestic role, they are well positioned to promote the rule of law abroad. (14) And indeed, federal judges have played a significant role in the effort to advance the rule of law and the democratic values essential to it in other parts of the world.

Each year, dozens of federal judges assist in presenting seminars abroad that educate and train judges in other countries on a host of topics including how to oversee a case, how to write an opinion, and the importance of impartiality. I have had the privilege of participating in at least a dozen such programs. Beyond the exhilarating human experiences these programs have provided me, I have gained some background in their structure, objectives, and efficacy. My experience has also given me reason to pause and consider some of the tensions created by the participation of the federal judiciary in efforts to promote the rule of law abroad. One of the more sensitive concerns relates to the federal judiciary's involvement in matters that touch upon foreign policy, a province conferred by the Constitution to the politically accountable branches of government. (15) Judicial participation in these efforts may also raise questions concerning government funding and compliance with judicial ethical obligations. That said, clearly defined roles for participating judges coupled with cognizance of these tensions will allow these important efforts to continue in a manner that maintains the delicate separation-of-powers balance and comports with the Canons of the Code of Conduct for United States Judges. (16)

This Article will proceed as follows: Part I will outline the historical development of American rule-of-law programs and democracy promotion efforts abroad. Part II will explore the specific challenges faced by developing and transitioning nations as they work to establish the rule of law and democratic systems of government. Part III will describe the structure and nature of the current national and international rule-of-law promotion programs in which federal judges are involved. Finally, Part IV will address the tensions raised by the involvement of the federal judiciary in these efforts and attempt to outline a responsible approach whereby these efforts can continue in a way that maintains judicial independence, satisfies judicial ethical standards, and comports with basic separation-of-powers principles.

I.

Perhaps because of the debate regarding nation-building in Afghanistan and Iraq, a common misperception exists that programs promoting the rule of law and democracy abroad are a recent development. They are not. (17) The relationship between economic development and legal development is not a new phenomenon. (18) Since at least the 1960s, the legal community has advocated democracy and rule-of-law promotion as the United States has placed a greater emphasis on nation-building. This may be because Americans perceive the law as "the proper medium for social reform." (19) We often view "[t]he civil rights or public interest lawyer [as] the protagonist of a drama which is variously perceived as 'achieving social justice through law,' 'reforming the system,' [and] 'righting the wrongs of society.'" (20) American commitment to promoting democracy abroad became clearer upon its incorporation into the nation's foreign policy during the last half of the twentieth century.

During the latter stages of the Cold War, the Reagan Administration explained its intention "to foster the infrastructure of democracy, the system of a free press, unions, political parties, universities, which allows a people to choose their own way to develop their own culture, to reconcile their own differences through peaceful means." (21) Although the promotion of democracy began as a means to stem the tide of Soviet Communism, it soon became a broader vehicle, facilitating efforts such as electoral reforms in Latin America. (22)

These efforts to promote democracy abroad were only further encouraged after the fall of Communism. The end of the Cold War presented a new opportunity for the United States to foster democracy as a type of foreign assistance, distinct from simple monetary aid. After the fall of the Berlin Wall, Congress passed the Support for East European Democracy Act (23) and the Freedom for Russia and Emerging Eurasian Democracies and Open Markets Support Act. (24) Each was an attempt to provide not only monetary aid to Eastern Europe, but also to foster the rule of law and democracy. (25) For the former Communist countries making the transition to democracy, words of Winston Churchill come to mind. Addressing Congress shortly after the bombing of Pearl Harbor, he noted: "I was brought up in my father's house to believe in democracy. 'Trust the people'--that was his message." (26) It is this trust of democracy, and the citizens who live under it, that has motivated the United States to promote change in these countries.

In 1990, the United States Agency for International Development ("USAID") (27) began promoting its Democracy Initiative. The new agency observed that "there is growing evidence that open societies that value individual rights, respect the rule of law[,] and have open and accountable governments provide better opportunities for sustained economic development than do closed systems [that] stifle individual initiative." (28) The programs born of the Democracy Initiative have sent hundreds of judges to countries around the world, promoting the rule of law.

II.

Before discussing the challenges faced by emerging democracies, it is helpful to first consider what we take for granted here in the United States. Our judicial systems, both federal and state, are immensely honest and open. They have, throughout our history, been so free of systemic corruption that the rare and unfortunate cases that have occurred are aberrational--and are viewed as such. (29) Beyond institutional integrity and a high level of legal competence, American judges, especially federal judges, enjoy institutional independence. Once in office, we are isolated from the forces of partisan politics. (30)

In many developing countries, the strong and independent judiciary so central to the rule of law simply does not exist. Oftentimes, the judiciaries in emerging democracies have been closely overseen, if not directly run, by executive powers. (31) They struggle in their attempt to transition from an arm of the executive into a separate and distinct branch of government, founded on the rule of law. This is particularly true in former Soviet-bloc countries that operate under civil law systems. The role of the prosecutor in those countries is much more powerful than in our own, and the role of the judge is, usually, concomitantly diminished. (32) Judges in these countries are often treated more as bureaucrats, both by the public and the government, than as members of an equal branch of government. (33) Further, they are often marginalized and demoralized by meager compensation, little respect, and poor job security. (34) In some nations, the executive appoints and removes judges, and can do so at will. (35) Thus, the transition to a society where judges apply the rule of law impartially, instead of doing the bidding of the executive, brings...