The Rule of Law and a Petition Regarding the Russian-Georgian Conflict
In today's e-mail I was invited to sign on to a letter initiated by two fellow deans with experience "in the project of building a stronger legal education system and a system of accreditation for law schools" in Georgia, as part "of a larger project, aided by resources from the ABA and USAID, to promote the Rule of Law in Georgia by building an independent judiciary and a strong and independent legal system." Their professional colleagues in Georgia have asked for support from legal educators in the United States and Europe in trying to stop the violations by Russia of international norms and of Russia's efforts to defeat the progress of Georgia toward the Rule of Law and its values. They go on to say that they do "not seek to take sides in the underlying political and ethnic controversies. We seek only your support for the Georgians' desire to have freedom from military attack and from interference in their work to a strong system of justice and law."
I rarely sign petitions, in part because I think that something worth saying is worth saying in one's own voice, though I like to think I would have signed the Declaration of Independence. Group letters come with a kind of agency problem. Someone asks you to sign a letter, and you have less ability to inquire into the facts behind the cause, and so forth. Here, I think we tend to root for Georgia because they, or at least members of the current government, are Western-leaning, like the U.S., and seek to emulate us and certainly, as we see, some of our institutions. I share these sentiments, I confess.
It is the "Rule of Law" thing that irritates. I think this is an expression I will eliminate from my own vocabulary. I take it to mean a devotion to the idea that law is above any individual, that we should not be tyrants who proceed on our own in the face of legal opposition, and that we need to effect change through the prevailing legal system, properly constituted. Unfortunately, in every conflict, both sides can argue about whether the Law was properly brought into being. Moreover, there are so many examples of heroic objections to the apparent Rule of Law that it is hard to know where to begin. Whenever there is conflict or terrorism or all-out war, educators and judges can say that the conflict is interfering with the Rule of Law because it makes the place less safe for intellectual inquiry, not to mention the accreditation of law schools. Thus, I suppose the same letter could have been issued after Georgia overplayed its hand by launching an attack on Tskhinvali, capital of South Ossetia. In that case, the letter would have declined "to take sides" but would have criticized the attack as bringing about instability and thus threatening the Rule of Law. I do not mean to say that everything is contextual, that there are no rights and wrongs, and all that. We do need a vocabulary to object to tyranny, to oppression, and to unnecessary violence. But I do not think that the Rule of Law provides, or any longer provides, the right words or sentiment. It is simply too easy and far too common for both sides in a debate to claim the Rule of Law. And in the Georgia-petition case, if it simply means that stability and peace are helpful to one's enterprise, then again too much can be said to offend the Rule of Law.
I think these petitions do have meaning. Readers of newspapers are often confused about issues of the day and the citizenry can be influenced by news of a large number of educated persons choosing to speak out. Moreover, it is good to speak out. But I would rather not do so under the guise of protecting the Rule of Law.