Editorial: Two and a Half Cheers for the Rule of Law

Becky O’Malley
Friday July 09, 2004

No phrase is more firmly enshrined in democratic iconography than “the rule of law.” The concept is frequently invoked both to criticize and to justify government actions. In the United States, respect for the rule of law has deep roots. In the Anglo-American legal tradition, it goes all the way back to 1215, to the Magna Carta. The Declaration of Independence, whose birthday we just finished celebrating, is all about law and the lack of respect signers thought the English crown was showing for it in 1776. 

There’s even a website named for it: the-rule-of-law.com. Unfortunately, most of the material on the site, created by professors at Stanford’s law school, is counter-examples, cases where the rule of law has not been followed. There’s a passionate warning against the invasion of Iraq signed by law professors around the country and a scathing denunciation of the U.S. Supreme Court’s decision in Bush v. Gore. Both were ignored. In the past few years, the rule of law has taken a bad beating. 

Recently, however, there have been a few bright spots on the legal horizon. Against all odds and defying many predictions, the unfortunately politicized U.S. Supreme Court has finally found something up with which it will not put. Even for fundamentally undemocratic justices like Antonin Scalia (who recently made news by summarily confiscating a journalist’s tape of one of his speeches) the idea of habeas corpus still resonates. This principle, enacted in England soon after the Magna Carta, says that prisoners cannot languish in jail without charges, but must be brought before the court to determine if there’s any reason they’re being held. Eight of the nine justices, in a group of somewhat murky decisions, upheld the concept. (Only Clarence Thomas still doesn’t get it.) The court clearly said that the Bush administration’s contention that prisoners with alleged terrorism connections could be held indefinitely goes too far. How much too far is still to be determined. 

Another faint bright spot on the rule-of-law horizon appeared in Israel. Israel is the beneficiary of an even lengthier tradition of adherence to law, going back much further than the Magna Carta. There, the Supreme Court also came out against the notion that anything goes, saying that building a “security” fence in the occupied territories between Israelis and Palestinians was okay in principle, but in detail must have a genuine demonstrable connection to security. Friends of Israel who are not afraid of occasional constructive criticism have been much heartened by this decision. 

Liberal commentators have also pointed to whatever is going on to investigate the Abu Ghraib torturers as somewhat of a bright spot. Here, the jury is still out. We’ll have to wait and see if the officers and Defense Department officials are allotted their share of blame, or if enlisted personnel take most of the hit. The televised arraignment of Saddam Hussein in what seemed to be a conventional courtroom setting in Iraq was praised in some quarters, though an Arabic-speaking Berkeley commentator who watched the proceedings on television told us that the judge sounded like a scared kid, deferential and unsure. The fact that the U.S. conquerors have not asked for a prestigious international tribunal like the Nuremburg trials is not a plus for the rule of law. 

A sidebar to a discussion of the rule of law might be entitled The Rules for Lawyers. A petition condemning the use of torture by the U.S. in Iraq has been signed by many well-respected law school professors, including Harvard’s Larry Tribe and Alan Dershowitz, who don’t always agree on such questions. Many of them were already on record criticizing the shoddy legal work represented by the memo which the Justice Department produced to justify the practice.  

Students at UC’s Boalt Hall School of Law have called for the ouster of Boalt professor John Yoo, one of the authors of the questionable memo, as well as of another justifying the treatment of Guatanamo prisoners which was rejected by the Supreme Court. His role in those cases, when he was working for Ashworth’s Justice Department, has been defended by some under the hired gun theory of legal representation: those who hire the lawyers get to call the shots. This theory is often invoked by criminal defense lawyers who defend rapists or mob figures. Few would deny that all defendants, no matter how vile, are entitled to some sort of representation.  

But when the criminal element is the U.S. government, and when the defense attorney is subsequently hired to teach law students the tricks of his trade, there seems to be something wrong somewhere. Academic freedom is of course very important, but when a law school hires a teacher who does not seem to have fundamental respect for the rule of law, it appears that a mistake has been made. As consumers of legal education, the students have a right to question what their tuition dollars are buying. On the other hand, very similar arguments were used to justify attacks on professors suspected of being “Communist sympathizers,” on the theory that Soviet communism did not respect the rule of law. Even those who have called for Yoo to be fired will probably agree that witch hunts like those were bad policy.  

The line for lawyers should probably be drawn somewhere between ethics and sophistry. The ethical considerations embodied in the concept of the rule of law suggest that government decisions should be consistent and based on established laws and legal principles. Lawyers, and those who teach lawyers, should believe in the rule of law. 

Sophistry, on the other hand, says that whatever works is good. In a May 30 Wall Street Journal op-ed, published before the Supreme Court decision on Guantanamo, Yoo said that “The reasons to deny Geneva status to terrorists extend beyond pure legal obligation. The primary enforcer of the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does the same with American POWs.” Well, yes, but what if he doesn’t? Is the U.S. then free to disregard the law? As California taxpayers, we might be entitled to hope that our future lawyers are being taught that respect for international law “trumps” (in the ugly gamesmanship metaphor that has lately become fashionable) the barter system as a guide for action by our government.  


—Becky O’Malley