The rule of international law.

• Author: Waldron, Jeremy
• Position: International Rule of Law

I.

This Article will focus on how one should think about the rule of law in the international arena. Asking about the rule of law in the international arena is not just asking whether there is such a thing as international law, or what it is, or what we think of particular treaties (such as human rights covenants), or of the value of customary international law, or of the enforceability of international law in our own courts. The phrase "the rule of law" brings to mind a particular set of values and principles associated with the idea of legality. (1) These values and principles are the ancient focus of our allegiance as lawyers. The rule of law is one of the most important sources of the dignity and honor of the legal profession, and an awareness of the principles and values that it comprises ought to be part of all lawyers' professional ethos, something that disciplines the spirit and attitude that lawyers bring to their work.

True, the rule of law is not the only value that lawyers serve. Lawyers must serve justice too, for justice is part of law's promise. (2) And, of course, lawyers serve the interests of their clients and of society generally. But the rule of law constrains lawyers in their pursuit of these other goals: they pursue justice and the social good through the rule of law, not around it or in spite of it. This Article will talk particularly about the obligations the rule of law imposes upon lawyers as they act in various capacities.

Is it clear what the rule of law demands of lawyers in the international arena? Many people think it demands less in the international arena--that it demands less of a national government in the international arena, for example, than in the domestic arena--not just because there is less international law but also because a different attitude toward the rule of law is appropriate in international affairs. This Article is skeptical about that suggestion, and I shall present a number of reasons for rejecting it.

II.

To begin with, what does the rule of law require of lawyers in the municipal arena? (3) Usually one thinks of the rule of law as a requirement placed on governments: the government must exercise its power through the application of general rules; it must make those rules public; it must limit the discretion of its officials; it must not impose penalties on people without due process; and so on. But the rule of law applies to the individual, too. So, what does the rule of law require of the ordinary citizen? Well, it requires that she obey the laws that apply to her. She should be alert to changes in the law; she should arrange for her legal advisors to keep her informed of her legal obligations; she should refrain from taking the law into her own hands; and she should not act in any way that impedes, harms, or undermines the operation of the legal system. Every ordinary citizen has these obligations and can properly expect the assistance of her legal advisors.

As the ordinary citizen goes about her business, she may find that there are areas where the law imposes minimal demands. on her or no demands at all, instead leaving her free to her own devices. This is not a matter of regret. Allegiance to the rule of law does not mean that the citizen must wish for more law--or less freedom--than there is. Neither does it require that she play any part in bringing fresh law into existence if she does not want it. She must obey the law where it does exist, but she has no particular obligation where it does not. It is not up to individual citizens or businessmen to do the lawmakers' job for them. For example, they have no duty to extend the scope of the law's constraint (in accordance with common sense, morality, the spirit of the law, social purposes, or anything else), if the sources of law do not disclose an unambiguous enactment to that effect.

We can take this point even further. According to most conceptions of the rule of law, individual citizens are entitled to laws that are neither murky nor uncertain but are instead publicly and clearly stated in a text that is not buried in doctrine. If the state impacts individuals by way of penalty, restriction, loss, or incapacity, then individuals are entitled to advance notice through clear promulgated laws. (4) To the extent that the law is unclear, individuals are entitled to the benefit of that uncertainty. (5) In the absence of a clearly stated constraint laid down in a promulgated legal text (like an enacted rule or a well-known precedent), there is a presumption in favor of individual freedom: everything is permitted if it is not clearly forbidden. It is not inappropriate for lawyers to help their clients navigate the legal system with this in mind--looking for ambiguities and loopholes, taking advantage of them where they exist, and not going out of one's way to defer to laws whose application to a client's case is ambiguous or unclear.

These actions are legitimate and entirely consistent with legality because (on most accounts) the whole point of the rule of law is to secure individual freedom by providing a predictable environment in which individuals can act freely, plan their affairs, and make their decisions. (6) To eliminate uncertainty in the interests of freedom and to furnish an environment conducive to the exercise of individual autonomy constitutes the raison d'etre of the rule of law. So it is perfectly appropriate to approach legal matters in this arena with the freedom of the individual in mind--freedom from any restrictions that are not promulgated clearly in advance.

III.

What happens when attention is turned from the individual to the government? (For the moment, this is still in the municipal arena; international law is still left to one side.) Unlike the individual, the administration does not have an inherent interest in freedom of action in the municipal arena. It does not have an interest in being unconstrained by law, in the way that the individual does. Quite the contrary: it is important that the government should in all things act in accordance with law. In doing so it upholds the ideal that, when it comes to governance, this is a nation of laws, not men. So the presumption for the government goes in a direction exactly opposite to the presumption for the individual. Governmental freedom is not the raison d'etre of the rule of law. The rule of law does not favor freedom or unregulated discretion for the government. Quite the opposite is true; the government is required to go out of its way to ensure that legality and the rule of law are honored in its administration of society.

For the citizen, absence of regulation represents an opportunity for individual freedom. But absence of regulation represents a very different case for the state. It means that official discretion is left unregulated; it means that power exists without a process to channel and discipline its exercise; it means that officials are in a position to impose penalties or losses upon individuals without clear legal guidelines. Such absence of regulation is not an opportunity for freedom, but is rather a defect, a danger, and a matter of regret for the rule of law. A government committed to legality should feel pressed to remedy this situation by facilitating and taking responsibility for the emergence of new law to fill the gap. This does not correspond to any equivalent obligation placed on an individual citizen faced with the silence of the laws regarding her own conduct. So, although from the citizens' perspective "the more law the better" is definitely not true, something like that is true for the government. When it comes to the regulation of government discretion, more law is better--or at least that is true from the perspective of the rule of law, even if it has to be qualified from the perspective of other ideals that apply to the government. (7)

Accordingly, the responsibilities of a lawyer advising the government are different from the responsibilities of a lawyer advising the private citizen or the individual...