The ethics of global justice lawyering.

Author:Roesler, Shannon M.
 
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In the last two decades, as states, international institutions, and private donors invested heavily in the rule of law and human rights, lawyers gained a prominent place in transnational projects to reform domestic laws and institutions. As the U.S. legal profession moves into this global arena, we should pause to consider the ethical questions raised by the practices of "global justice lawyering." Broadly conceived, two questions govern this inquiry: (1) What ethical justifications support the U.S. lawyer's role in reforming the laws and political institutions of other societies? (2) Even if we can justify this role in theory, can we justify the particular practices of global justice lawyers?

To answer the first question, I draw on the ethical doctrine of cosmopolitanism, as well as the U.S. legal profession's commitments to the rule of law and reformative justice, to conclude that there are strong ethical reasons to promote global justice. These reasons do not, however, justify promotion by any means. This is the dilemma of the cosmopolitan lawyer: the cosmopolitan project of global justice--although morally justified in theory--presents ethical questions in practice. In the final section of the Article, I suggest that to avoid ethical concerns, global justice lawyers must reject an "import" approach to law, in which foreign laws and institutions are transplanted into new environments, in favor of a normative approach to the processes of lawmaking.

The protection and promotion of the universal values of the rule of law, human rights and democracy are ends in themselves. They are also essential for a world of justice, opportunity and stability.

--Kofi Annan, Secretary General, United Nations (1)

About the ideal goal of human effort there exists in our civilization and, for nearly thirty centuries, there has existed a very general agreement. From Isaiah to Karl Marx the prophets have spoken with one voice. In the Golden Age to which they look forward there will be liberty, peace, justice and brotherly love.... Not so with regard to the roads which lead to that goal. Here unanimity and certainty give place to utter confusion, to the clash of contradictory opinions....

--Aldous Huxley (2)

  1. INTRODUCTION

    Law-reform activities designed to promote the rule of law, human rights, and democracy have expanded to more regions of the world as private donors, Western states, and international institutions have "poured hundreds of millions of dollars into rule-of-law reform," (3) particularly in the last two decades. (4) The United Nations (U.N.) currently conducts rule-of-law operations and programming in over 110 countries around the world. (5) The American Bar Association (ABA) has greatly expanded its international rule-of-law initiative; what began as the ABA's Central and Eastern European Law Initiative has grown into the Rule of Law Initiative with staff and programs in countries around the world. (6) Various U.S. governmental entities also support similar programs worldwide, as do large networks of activists and non-governmental organizations (NGOs). And U.S. law schools are increasingly involved in a similar mission as they expand their reach overseas through international programs, clinics, and exchanges. (7)

    These practices are not new; they are the complex products of historical trends, including the law and development movement of the 1960s and the emergence of an international human rights system after World War II. (8) In the 1980s, law played a critical role in the dominant vision of economic development grounded in market economies. In response to concerns regarding this neoliberal vision of law and development, objectives shifted in the 1990s to a focus on "good governance," a model that seeks to moderate open markets with the "rule of law" in the form of legal regulation, rights enforcement, and political accountability. At the same time, human rights activists increasingly mobilized across borders, seeking to implement a global vision of social justice by asserting international human rights claims in domestic and international fora. Today, in word and deed, Western states and international institutions extol the virtues of the rule of law and human rights as guarantors of democracy, stability, and economic growth.

    In emphasizing the rule of law and human rights, this approach to world justice and stability is intrinsically legal in nature. In short, public interest law is increasingly global. In the words of Scott Cummings and Louise Trubek, lawyers are today the "architects of the global system" and as such are "subject to praise or scorn, depending on one's point of view, either as the vanguard of change or the agents of imperialism." (9) Indeed, some scholars have charged that these transnational lawyers are architects of a "new legal orthodoxy" that serves to legitimate a hegemonic neoliberal globalization that benefits Northern elites at the expense of most of the world's population. (10)

    In light of these empirical and theoretical concerns about the role of U.S. lawyers abroad, an ethical inquiry is long overdue. For the most part, debates in the legal ethics literature continue to revolve around the appropriate conception of the lawyer's role in the U.S. system of justice and democracy. But as the U.S. legal profession adapts to this global picture of public interest law, we should pause to consider the ethics of these new transnational practices. Broadly conceived, two questions govern this inquiry: (1) What ethical justifications support the U.S. lawyer's role in reforming the laws and political institutions of other societies? (2) Even if we can justify this role in theory, can we justify the particular practices of these transnational lawyers?

    To answer these questions, this Article proceeds as follows. In Part I, I briefly describe the kind of transnational practices at the heart of this inquiry. In Part II, I address the objection that transnational lawyering unduly interferes in other societies, rejecting the claim that moral relativism mandates noninterference. I then explore the possible ethical foundations for what I call "global justice lawyering," a phrase that captures the practices of transnational lawyers involved in rule-of-law assistance and some forms of human rights advocacy." Drawing on the ethical doctrine of cosmopolitanism and the legal profession's commitments to justice, I discuss the ethical reasons and justifications for acting to promote justice abroad.

    Although I conclude that there are strong ethical reasons to promote global justice, these reasons do not justify promotion by any means. This is the dilemma of the cosmopolitan lawyer: the cosmopolitan project of global justice--although morally justified in theory--presents ethical questions in practice. In Part III, I explain the ways in which the practices of global justice lawyering--that is, the means by which lawyers promote legal reform abroad--risk violating the dignity of others. Sociolegal studies raise concerns that reform efforts are ineffective in whole or part because imported legal rules, strategies, and institutions are perceived as illegitimate. This lack of social acceptance has important implications for the ethics of global justice lawyering. If lawyers impose a predetermined means to political justice by importing the political institutions, legal rules, and legal strategies with which they are familiar, they risk violating the dignity of those they hope to assist. In the final section of the Article, I suggest that to avoid ethical concerns, global justice lawyers should focus not on importing familiar laws and institutions, but on facilitating processes of lawmaking and social change. I conclude with a discussion of the particular challenges global justice lawyers face in facilitating these processes in societies transitioning to liberal democracy given the absence of an established democratic political culture and lawyers' own ethical commitments to political justice and human rights.

    With this Article, I hope to begin a conversation and acknowledge that, in covering much ground, I cannot adequately explore the nuances of all the questions and issues raised. My approach draws on scholarship from different disciplines, including moral philosophy, legal ethics, sociolegal studies, and legal and political theory. Although questions concerning the ethics of global justice lawyering intersect with issues at the heart of different disciplines, my discussion of many of these issues is necessarily limited in an effort to maintain my overarching focus. In addition, I explore the ethics of transnational practices from the standpoint of the individual lawyer, rather than from the standpoint of international institutions and nation-states. In other words, I do not directly respond to the geopolitical critiques of international development assistance or the debates regarding the political legitimacy of international human rights. That said, my critique of the practices of global justice lawyering does implicate these debates insofar as changes in the practices of transnational lawyers would necessitate changes in the practices of donor organizations, including international institutions and nation-states. (12)

  2. JUSTICE ABROAD: THE PRACTICES OF GLOBAL JUSTICE LAWYERING

    1. Rule-of-Law Reform

      The rule of law is a notoriously open-ended and contested concept. In the history of political and legal thought, it is defined and used in such varied ways that we might conclude it is an empty vessel devoid of any enduring content. (13) Despite this conceptual history, international aid entities typically subscribe to a version, or definition, of the rule of law that includes not simply procedural elements, but also substantive human rights norms. For example, the U.N.'s ambitious definition of the rule of law includes an extensive list of legal and institutional principles:

      [The rule of law] refers to...

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