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.

Comments

[Michael F. Martin]

Please say more about what it is about the phrase that seems inapt. Is it that law no longer seems autonomous? How so?

[Joe Average USA]

Well maybe those professors are full of bullshit, just like the President of Georgia who is Columbia University Educated. As usual, there is a complete lack of independent research on this subject. Suffice it to say, that Georgia is getting exactly what it deserves. For the clueless out there, the Russians completely have the moral high ground in this instance. Dick Cheney, whom I have no personal reason to bash, has once again shown his clear lack of judgement. George Bush, is again to my chagrin, intellectually MIA. The Georgian bullies are getting what they deserve for damaging their neighbors for their simple Georgian political conceit.

[edited to remove gratuitous abusive language]

[Rising 2L]

Professor Levmore,

As Justice Cardozo used to say, "Justice is not to be taken by storm. She is to be wooed by slow advances." To do otherwise would be an obvious dereliction of our duty and would almost certainly result in a moral hazard. However, I'm not a normative guy, I just like to predict the dots and it seems that Russia is already otherwise deterred by the distinction made by Messrs. Hines and Price. I do wish, for the sake of Georgia though, that the Russian tanks will be error-minimizing in their attacks, lest they be responsible for recurring misses. But I fear regardless of any petition or diplomacy, however we allocate strength in the region, ultimately the parties will get together and bargain for the correct outcome.

Cheers, Rising 2L

[Roach]

I am sick of the concept of international law. At best it is appropriate in intramural fights among civilized nations to regulate things like procedures; wearing uniforms, not molesting ambassadors, executing spies. Otherwise, it is just silly. This is not Metternich's Europe anymore. The big kids with the big guns still get to make the rules. At best we can cultivate consensus on a few dastardly acts like deliberate terrorism or hiding amongst civilians, but other than that we should not hold our breath that war itself can be put into a legal framework.

The Georgia case is a useful one. Why should Georgia's Soviet-Era borders be sacrosanct? Why can't the Ossetians be independent (in light of what the US just pulled off in Kosovo)? Why can't the Russians protect their near-abroad from anti-Russian regimes and anti-Russian NATO enchroachment.

Any concept of international law must accord with the realities of power in some broad sense and generally benefit both small and big nations or it will have no credibility and no vitality.

[Colin]

Dear Dean Levmore,

In the context of discovering a reason not to support a petition, your disagreement with the phrasing is useful: it does not tell your correspondents that you disagree with the merits of their petition (neither does it tell them that you agree).

While the punt on language is, on the whole, fairly easy, it's a much more difficult task to sort out whether the petition has merit. (By that I mean to assert neither that you are disinterested in the subject of the petition nor that you might be disinclined to investigate as warranted.)

The petition-writers raise two points: (1) Georgia needs assistance in developing a legal education system; (2) assistance should help Georgia fend off Russian aggression. The first point is objectively laudable and easily supportable, in that improving legal education is accepted as a good thing (I certainly don't dispute it).

The second point is more nuanced (particularly as seen from 1111 E. 60th Street): (a) Georgia attacked Tskhinvali; (b) South Ossetia only came under Tbilisi rule when it was handed to the Georgian Soviet Socialist Republic by Georgia's most (in)famous son, Joseph Stalin; (c) calls for independence from South Ossetia have not found the same support as calls for independence from Kosovo (for example); (d) respect for autonomy, territorial integrity and sovereignty is a two-way street (disregarded by Saakashvili in attacking Tskhinvali as well as by Coalition forces in attacking Iraq); and (e) The Law School has its fingerprints on the Georgian constitution (http://chronicle.uchicago.edu/951207/georgia.shtml).
Working through these nuances (among others) and formulating a coherent framework for assessing and weighing the competing claims takes more time than reading a petition and signing up. I appreciate that you have stronger means of expressing your opinions (without agency issues). It would be gratifying to know that your decision not to subscribe is founded on something more concrete than mere distaste for the phrase "promote the Rule of Law".