Week 5: The Rule of Law and Substantive Commitments
One of the most rewarding things about working with NCSC is there are many teams focusing on different regions (The Caribbean, Central America, Eastern Europe, the Middle East, Asia) each specializing in a unique area of reform. Every team leader encourages interns to participate through assignments in program management, to data research and gap analysis, to federal contracting. This week, I met the other interns and we shared our professional development profiles. I listed my main areas of interest as: socio-cultural issues, international conventions, mineral rights/extraction, refugee return, criminal law, gender violence and anti-corruption.
This week, I continued my work as Mr. Hughes’s intern-in-charge of COVID related work. Since Tim circulated Guidance #2 to International Programs Division (IPD) staff around the world, my next project is to write a Field office return to work plan specifically for the Sarajevo Field Office in the Federation of Bosnia and Herzegovina. I joined a conference zoom with the Bosnia team and met five incredibly knowledgeable, warm and skilled staffers, two working from the U.S. and three in Bosnia.
The Office was adapting their plans for the mock trial competition, recalibrating their annual training conferences with law professors and conducting surveys among law students. On the call each week, I would give a brief update about the COVID related workplan I was drafting for the Bosnia Field Office.
At the end of the call, we briefly discussed the situation in the United States: protestors in thousands of cities standing up for racial justice. One of the Bosnia staff said to me: “I don’t like passive behavior in the face of injustice.” I agreed with the sentiment and claimed that this generation of Americans is evidently willing to reject the status quo, even if it requires leaving home during quarantine, to demand judicial reform.
On Thursday, we had our first reading-discussion “learning session.” Tim likes to host these, usually once a week, to help interns build a larger conceptual framework throughout the internship, to improve our understanding of NCSC’s role and so that we might be able to share what we learn with others. This week, we discussed a chapter from the 2012 book Can Might Make Rights?: Building the Rule of Law After Military Interventions by Stromseth et. al. The discussion raised a lot of interesting concepts and questions and helped me begin to approach the “rule-of-law” as a concept. (When I tried to explain that I'd be working on Rule of law projects this summer to my mom on our early morning trip to the airport, the concept seemed too simple but complicated.) Here are some quick points:
- The Rule of law (RoL) includes a cluster of concepts like: “fairness, justice, predictability and equality under law.” Aristotle said RoL means a “government of laws, not men.” Justice Potter Stewart said about RoL: “I know it when I see it.” But RoL is always “complex, fragile and may be unrealizable,” if we’re imagining a RoL utopia.
- The Rule of Law relates to the law, and also means: “well functioning, respected courts, judicial review, fair and adequate legal codes [and] well trained lawyers.”
- The RoL, perhaps like the UN, is “meant to protect us from hell rather than bring us to heaven.” RoL protects the public against anarchy, allows people to know the legal consequences of actions and allows them to plan their affairs with confidence. RoL also protects people from arbitrary uses of power.
- RoL can thus be defined as minimalist-formal or maximalist-substantive. The latter requires an extra substantive commitment to, for example, human rights.
- In his 2002 SOTU Address, President George W. Bush said “America will always stand firm for the non-negotiable demands for human dignity,” but the US can and often has become embroiled in projects that become self-undermining.
- “There are profound questions about the legality and legitimacy of some recent interventions.”
- “The Rule of law is a concept no one can dislike.” The World Bank and multinational corporations want rule of law to conduct business in a free market. Human rights advocates argue the rule of law is a necessary condition to prevent torture and extrajudicial executions. National security experts see RoL as an aspect of preventing terrorism.
- The US/International Rule of Law Assistance Standard Menu includes (1) reforming institutions, (2) rewriting laws, (3) upgrading the legal profession, and (4) increasing legal access and advocacy. This model has not worked particularly well in any of the places it has been used, but that doesn't’t mean all those measures are completely wrong.
- In many countries, “citizens know very well that . . . a de jure “equality” on the books and a well-functioning legal system . . . can coexist with de facto discrimination.”
From time to time in our discussions, Mr. Hughes will agree that the more we learn about the rule of law abroad, the more we reflect on the rule of law at home. The last bullet brings us, again, to the elephant in the room, when on May 25th, George Floyd was killed by police officers on camera. In short, while de jure segregation is arguably almost entirely in the past, de facto segregation and structural racism remain today.
Meanwhile, as President Carter stated, the other national scandal continues. The uninsured rate was rising before COVID-19. When millions of Americans lost their jobs during the COVID-19 pandemic, like George Floyd lost his, in many cases they also lost their health insurance. So when it came to COVID-19, America was unprepared and missed the boat. Serious reform would require a substantive national commitment to public health, and perhaps to healthcare as a basic right.
This week, NCSC hosted an internal zoom call on “National Crisis and Injustices in the Criminal Justice System.” I am lucky to work with an organization that is aware of its central role in tracking courts around the country and promoting the rule of law both at home and abroad. As the younger program associates advocated during the meeting, NCSC should do as much as it can. Tim Hughes gave a formidable set of suggestions for NCSC to respond to the unjust murder. NCSC can highlight the event on its website to facilitate informational links, host a chief justices forum to discuss reform, produce briefs and ‘justice case files’, and center civics essay contests on structural racism.