Rosa Brooks

American Society of International Law Proceedings

March 31-April 3, 2004

Proceedings of the Ninety-Eighth Annual Meeting of the American Society of International Law

CONCEIVING A JUST WORLD UNDER LAW: A PANEL SUMMARY

Rosa Ehrenreich Brooks

To me, the phrase "a just world under law" summons up the idea of "the rule of law." Of course, this is just replacing one neat phrase with another; now I have to say something about what the rule of law means. This is a complex concept. Volumes have been filled on the subject. To radically oversimplify: At a minimum, most of us conceive of the rule of law as requiring neutral legal procedures that can protect us against arbitrariness, procedures that apply equally to all, both ordinary citizens and government officials, and that are rooted in a substantive conception of fundamental human rights.

With a rule-of-law theme to guide us in the years to come, I see two main challenges for ASIL. The first is the challenge of creating and fostering the rule of law around the globe, especially in societies scarred by conflict or repression. The second challenge is safeguarding the rule of law here at home. Let me speak briefly about each.

Much of my prior work, both inside and outside the academy, focused on efforts to promote the rule of law in societies like Kosovo, Sierra Leone, and Iraq. What has struck me most, I am sorry to say, is that we are pretty bad at creating the rule of law. We have seen at least as many failures as successes.

Why are we so bad at promoting the rule of law in troubled societies? Part of the reason is that international and U.S. rule-of-law efforts tend to focus on creating new institutions, rewriting legal codes--the formal aspects of the law, the law on paper and on organizational charts. Such things are of course important, but we tend to forget that no institutions or constitutions make a jot of difference if people lack a cultural commitment to the rule of law. For institutions and laws to matter in a given society, ordinary people need faith in a vision of the rule of law, a faith so strong that they will turn away from violence, self-help, or patronage and look instead to the law's neutral mechanisms to resolve disputes.

It is very hard to create that faith in the rule of law in people who lack it, especially in post-conflict settings. In such settings, the law has often been badly discredited, either because the pre-existing legal system was dysfunctional and irrelevant to begin with, or because abusive leaders used the legal system as an instrument of repression. When faith in the law has broken down, it is hard to create a rule-of-law culture overnight.

Perhaps that is the reason we focus on institutions, structures, and statutes. It is not surprising that this is our focus; for most of us lawyers, this is what we know how to do. This is what we are trained to do. This is what we are good at. We are far less good at understanding how to foster broad cultural commitments to a particular normative vision of the rule of law. Changing a culture, in a society not our own, is a complex and poorly understood process. It requires creativity and skill of a kind most lawyers have never really thought about.

One challenge for the ASIL as we move forward into our second century, then, is getting better at understanding how to create not just legal institutions but rule-of-law cultures. It will not be easy in societies with no particular reason to believe in that vision of the rule of law. But with so much of the world torn by conflict, this is a challenge we need to face.

Our second challenge--related, of course, to the first--is to reinforce and reinvigorate a rule-of-law culture here at home, in the United States.

Let me start by noting another reason we are not very good at promoting the rule of law around the world. When we Americans go abroad, we bring with us the perspective of people who have always had the luxury of taking a rule-of-law culture for granted. We live in a constitutional democracy. In the United States, when you change the laws or the formal structures, people's behavior changes--including the behavior of government officials. When the tax code changes, we grumble but most of us pay up. When the Supreme Court says that the counting of ballots must stop, it stops. It is therefore unknot surprising that we ourselves have faith in the power of law, and that we bring our own assumptions with us when we go to Kosovo or Iraq.

What we forget, of course, is that formal law matters here in the United States only because, and to the extent that, we all share a cultural commitment to the rule of law. We share a faith in a vision of power and violence constrained by law. At any rate, until a few years ago, I would have said with confidence that we all share such a faith. Since 9/11, events have shaken my conviction that we do indeed live in a rule-of-law culture in the United States.

Most notably, many U.S. government actions in the "war on terror," though often couched in terms of law, even international law, suggest a deep lack of comprehension of what it means to live in a society governed by law, not men--a deep lack of commitment to a vision I used to assume we all shared.

I will not take up your time detailing the many recent government actions that have made me feel this way. I will only note, by way of example, the government's position in several cases currently before the Supreme Court. In the Hamdi and Padilla cases, the executive branch has asserted that it has the authority to detain any citizen, at any time, in any place, on the basis of secret and unchallengeable evidence, and to hold that person as long as it sees fit, without counsel, charge, or trial. In the Rasul and al Odah cases, the government asserts that no U.S. court has jurisdiction over any U.S. actions at Guantánamo--that, in effect, Guantánamo is literally a law-free zone.

Many of us have objected to such sweeping assertions of uncheckable executive power. Under the government's logic, the executive branch could kill any U.S. citizen at will, anywhere, if it deems him or her to be an enemy combatant. Similarly, the government could mistreat or torture detainees and there would be no mechanism for judicial review or remedy.

To such anxieties, the government appears able to offer only one answer: Trust us. Trust in our benevolence and good judgment.

Our rights should not depend on such fragile assurances. Our rights should not depend on the benevolence of any particular set of government officials. To suggest otherwise seems to me to miss the whole point of the rule of law. It misses the whole point of having a government of laws, not men. The core idea of the rule of law is that executive power is not absolute or limited only by the wisdom and consciences of those with power; instead, executive power operates only within the constraints and guidelines imposed by democratically legitimate law. Indeed, most of human history teaches us that reliance on executive good intentions is an insufficient safeguard against abuse of power.

When our leaders in America cease to understand or respect the vision of the rule of law, the damage is incalculable, and the damage is not just here in the United States. Because the United States is the world's sole superpower, others look to our example; we are indeed as a city upon a hill. When we appear to have lost faith in the idea of the rule of law, others around the globe will see little reason themselves to have faith in the rule of law. Worse, our government's apparent disdain for the rule of law emboldens and empowers abusive regimes worldwide.

ASIL's second challenge, then, is how to reinforce respect for the rule of law right here at home--particularly among our leaders. This challenge is not so different after all from the challenge of building the rule of law in the rest of the world.

Part of our challenge will be to focus on institutions and structures; although I have argued that these mean nothing without an underlying cultural commitment to the rule of law, it is also true that when laws and institutions become archaic and incoherent, both ordinary people and leaders will find their commitment to the law wavering. For this reason, it is important to have workable institutions, such as the International Criminal Court, and workable legal frameworks that reflect current realities and threats. We need to make sure that the law of armed conflict, for instance, is up to the challenges posed by the increasing presence of dangerous nonstate actors like globally diffuse terrorist networks.

At the same time we need to reinvigorate normative commitments to the rule of law. It is hard, in times of threat and fear, to make people believe in abstractions like the rule of law, but times of threat and fear are precisely when we most need the rule of law. We will have to take on those who will say that we privilege empty legalisms over the safety of Americans. As Attorney General Ashcroft put it after 9/11, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists for they erode our national unity." In other words, we must choose between the rule of law and our very security.

Our message back must be that this is a false choice. Our security depends on our liberty. In an open society we can separate good policies from bad, and correct our errors; if we are a society based on the rule of law, other rights-loving peoples will stand with us against our enemies and help us in the struggle against terror. If we abandon the rule of law, we only isolate ourselves and alienate our allies.

And there is more to it that that. There are some ideas for which it is worth risking our safety. The rule of law is one of those ideas. One phrase that is bandied about a great deal these days is that "the Constitution is not a suicide pact." If that phrase simply means that we ought not to let technicalities stand in the way of doing what must be done, fine--few would disagree. But if that phrase is used to suggest that we should jettison the idea of the rule of law in exchange for a possibly illusory security. then I would suggest that perhaps the Constitution was in fact a "suicide pact" of sorts--and so it should be.

The American Constitution embodies our deep national belief in the rule of law. We are a nation founded upon the rule of law, and the Constitution itself is imbued by the spirit of a still older document, the Declaration of Independence. As the Declaration recounts, the American colonies were pushed into revolution by the British monarch's violations of the rule of law. Some of those violations, as described in the Declaration, bear a chilling resemblance to those engaged in by the Bush administration today. In any case, as the Declaration makes clear, it was the British monarch's trampling on the rule of law that led the founders of this nation to take the exceedingly risky step of rebelling against Britain.

Most Americans can quote the opening lines of the Declaration by heart, but here I want to quote one of its least famous passages, a passage at the very end. Just before the list of signatories, we find the words, "And for the support of this Declaration... we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."

The signers of the Declaration of Independence were not being melodramatic when they pledged their lives, their fortunes, and their sacred honor. Had the rebellious colonies lost the war of independence, all those men we now revere would have met a terribly unpleasant fate. From the perspective of Britain, they were traitors; had they lost the war, they would surely have been tried, convicted of treason, and hanged.

Of course, fighting a war was also not without risk; they all knew that their lives might be lost in the fighting. In some sense, then, you might say that the Declaration of Independence was a sort of suicide pact, a mutual pledge that the founders of our republic would rather die than give up their freedom. The Constitution reflects this same deep conviction that there are some values for which it is worth taking risks, some ideals for which it is worth laying our lives on the line.

The vision of a "just world under law" is such an ideal.