Building The Rule Of Law

U.S. Supreme Court Justice Kennedy is no liberal. But, he isn't a hard core conservative either. His take on the law is typical of rank and file registered Republicans, and on the moderate end of what elected officials running on the GOP ticket espouse. There are probably fewer than 40 Democrats in Congress who even approach his level of conservatism. But, he is also a good example of the fact that there are some issues that are widely bipartisan, even if the fringes of the Republican party don't agree. One of those issues is the rule of law, principle that only the powerful but tiny Dick Cheney wing of the Republican party seriously disagrees with in principle.

Justice Kennedy recently spoke on the issue (Hat tip to SCOTUS Blog) to the American Bar Association, as it presented the most powerful judge in America (because he is the swing vote on the highest court) an award.

"In the developing world, there are not enough lawyers, there are not enough paralegals, there are not enough college-educated persons to make such a system work," Kennedy told delegates . . . In some countries, he said, half to three-quarters of the population works in the "shadow sector," with no licenses or legal regulation, and half the people have no official birth records. Lawyers can't merely advise millions of young people in those nations to wait decades while the groundwork for a legal structure is established, Kennedy said.

But he said lawyers are well-suited to educate and recruit those young people to promote law by fighting lawlessness - families in Asia that sell their young daughters into the sex trade, an African nation that charges fees to women who want rape complaints investigated, nations that hold prisoners incommunicado and without charges for a decade, "the ongoing and looming greater disaster in Darfur."

Lawyers should tell their listeners, "Here is a cause for your passion and your anger and your youth and your energy," Kennedy said. And he said U.S. lawyers must also realize that "the rule of law cannot stand here unless you address those problems in other nations."

The issue he charged American lawyers with is not an easy one. How do you build a legal system with few or no lawyers?

The most recent serious effort to try to do so has been in China, with decidely mixed results. But, the absence of formal legal education doesn't mean that a society has to be without lawyers all together.

The Washington Post recently highlighted the remarkable authority that a "Children's Parliament", run, as the name suggests, by children, in Goma, Congo has developed (as modest as it is) amidst a failed overall legal system, largely on the strength of the fact that it is not corrupt and makes a good faith effort to apply the law to the facts, despite the fact that its opinions are not themselves binding.

Prior to 1890, when New Hampshire adopted one, there was no such thing as a bar exam; every state, but one, had one by 1915. A college education wasn't a prerequiste to law school in the United States until about 1900 (and is still not in most of the world). When Yale Law School was founded in 1843, there were only eight law schools in the country and many lawyers learned the profession in another lawyer's office rather than in a law school. From 1779 to 1817, there was only one law school in the United States (at the College of William and Mary). Harvard Law School, founded in 1817, was the second.

Also, as far removed from actual practice as American law schools are, they are far closer than their civil law cousins, who lean on bar exam preparation courses even more heavily to teach students substantive law than do American law schools.

Early Americans were actually far more litigious than we are today, but most of the cases would have been considered small claims and were dealt with in the style of a modern small claims court. For every day legal purposes, the "Justice of the Peace" concept, in which lay persons met out justice in minor civil and criminal cases, are considered a pretty abysmal failure compared to status quo alternatives in places like New York State, where professional judges with graduate degrees in law in well organized state courts of record do a far better job. But, compared to a system like that of Liberia, which has only 22 judges (about a tenth of the number of judges per capita as Colorado), it looks attractive.

Both the civil law system, and the British, distinguish between a core group of litigators, and other lawyers with less formal credentials, reducing the size of the core group -- although the civil law system achieves this partially by having far more judges than common law systems do, per capita, and by entrusting much transactional legal work to the notary public's office.

The Roman legal system, one of the earliest, referred essentially all private law cases to rent-a-judges paid by the parties and largely independent of a formal court system, much like modern day arbitrators, another attractive option in a country with a weak state.

English law has its roots in the Norman Conquest, after which the occupying Army, itself in a military hierachy, divided up the conquered territory among Army officers, creating the foundations of the modern aristocracy, and granted each aristocrat the authority to met out justice in his own territory. Originally, this was mostly done directly by nobles hearing disputes between his subjects, but, eventually, this task became specialized and largely delegated to skilled specialist servants of the local ruler. The early Islamic empire, which fused religious and political authority followed a similar pattern, allocating the power to mete out justice largely to local rulers who often acted on the advice of educated servants.

Justice by general purpose local political leaders is another attractive alternative to bureacratic lawyer based justice, which, while it has its flaws, also offers a desirable alternative to the anarchy that prevails in much of the world today.

The notion that law without lawyers is a desirable thing is mostly a hoary myth that ignores the downside of that approach. But, as Justice Kennedy appropriately points out, the Rule of Law is a necessity that the much of the world can't afford to conduct American style.

Then again, as in the health care area, one wonders at what we get for our money, partially due to Justice Kennedy's own personal dithering. When he bemoans "nations that hold prisoners incommunicado and without charges for a decade," I have a hard time looking anywhere but in the mirror.