Liberty, Prudence, Imperfection, and Law

“The American Bar Association Strikes Again: the ‘Rule of Law Index’ versus the Rule of Law,” by Bruce Frohnen

Ever-humble, the America Bar Association (ABA) a few years ago instituted one of its many new initiatives, this one called the “World Justice Project.” How is an American trade association (or restraint of trade association, to be more accurate) qualified to bring justice to the entire world? Good question. I am quite certain that in all the murderous hotspots on this planet the oppressed people are not saying to themselves, “what we really need is a lawyer.” Then again, I am also quite certain that many of our friends at the ABA believe the oppressed of the world are thinking precisely that.

A central purpose of the World Justice Project is to publish the “Rule of Law Index.” This rather substantial report (lots of charts, 171 pages) is put together from answers to questionnaires given to in-country lawyers and academics (of course) in more than a hundred nations around the world. The results are predictable, rating Scandinavian countries at the top and the United States a developed world laggard at number nineteen, with various “less developed” dictatorships and former captive nations filling out the list.

The rankings actually seem about right. Whatever the many (many) flaws of Scandinavian societies, they operate according to settled, known laws and the people are almost maniacal in following and enforcing their laws consistently, fairly, and to the letter. Moreover, the presence at number nine on the list of the island nation of Singapore, where committing minor vandalism will get you a caning but the streets are spotless and safe, attests to a common sense understanding of the rule of law. The rule of law does not provide freedom or prosperity, or even justice in any full sense. The rule of law provides order. Order is necessary for higher goods like liberty and such justice as we flawed humans can experience, but it is consistent also with a good deal of severity, unfairness, and even what might reasonably be called oppression.

The World Justice Project moves toward recognizing these somewhat harsh realities of law and its limits. Their questions and resulting scores focus for the most part on issues of noncorruption, legal procedure, and “constraints on government powers.” All these contribute directly to effective rule of law. Rule of law being, in essence, a system under which both rulers and ruled abide by laws that are settled, known, consistent, and applied as reasonably expected, such categories reasonably well capture the principle in practice.

Unfortunately, the lawyers cannot seem to stop themselves from inserting their own ideological vision of the perfect society into their definition of the quite limited institution of law. In the executive summary the report states:

Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of peace, opportunity, and equity—underpinning development, accountable government, and respect for fundamental rights.

There is a way in which all this is true. But it is a very partial and indirect way that shows the danger of such overpromising. A nation that has an effective rule of law (that is, has the rule of law to a significant degree) is by that very fact going to have less corruption, because officials will be following their laws in dealings with the people, rather than selling their services and refusing to do their duty unless paid. Moreover, a nation in which the people know the rules and know that the rules will be enforced as written will be one in which more people are willing to invest their time and savings in various endeavors, including in building up businesses that increase wealth for everyone. As to “protecting people from injustices” and serving as the “foundation” for communities that provide all good things to everyone, well, such utopian ramblings have come to be expected over the last several decades. Nevertheless, the law that rules need not be just (death penalty for jaywalking, anyone?) or impartial in its nature (segregation was formally instituted by law). What is more, many laws impede development and respect for fundamental rights. The Obama administration has done a great job of impeding economic prosperity through its policies imposing vast new costs on small businesses, and it habitually violates constitutional rights by, for example, forcing religious organizations to provide contraceptives and abortifacients to their employees.

The claim that the rule of law somehow automatically produces utopia raises irrational expectations and, at least as important, encourages people to value it for its distant and tenuous products rather than for itself. The result has been tragic throughout the world as nation after nation has “tried” the rule of law for a while then, finding that peace, prosperity, and “equality” have not magically and instantly appeared, has tossed it aside in favor of arbitrary rule begun with promises of material benefits, producing lawless tyranny.

It is true that the rule of law, by binding governors to their own rules, makes them more accountable. But so much of the rest of the World Justice Project formula empowers rulers to make themselves unaccountable through bureaucratic obfuscation that the effect is quite the opposite. If there is one thing we should have learned from the horrific and utter failure of Western attempts to “develop” underdeveloped nations, it is that the demand that they centralize power through administrative rules aimed at forcing the economy into a more “fair” shape that will automatically bring economic prosperity produces dictators and massive violence. The rule of law promises order. It cannot produce even that when, in its name, we place on poor nations with little infrastructure demands that lack legitimacy, because they are not deeply rooted in the culture, and that cannot possibly be met.

There are more problems with the report’s methodology, and they show the potential disaster at the heart of current misunderstandings of the rule of law. Most of the categories used to compile the report are reasonable. But the rankings themselves will soon be corrupted to such an extent as to undermine the entire project. How so? First, the authors insist on including fundamental rights as part of the rule of law—not as potential benefits arising from respect for the rule of law but as part of the rule of law itself. There is some rational ground for this confusion in the experiential fact that some rights, especially property rights and due process of law, serve to restrict governmental power and so foster the rule of law. But these rights themselves are not part of the rule of law and, if improperly conceived, may undermine it.

Many rights we consider fundamental are important goods in and of themselves. But which rights are “fundamental?” And how shall we defend them, or vindicate them, consistent with the rule of law? Perhaps the best way to show the potential conflicts presented here is to point to another “good thing” erroneously presented as a “universal principle of the rule of law” in this report: social engineering. In addition to forbidding “discrimination” (what kind is not spelled out), the report demands that those who “deliver” justice, among many other good things, “reflect the makeup of the communities they serve.”

This misconception of the rule of law casts it as something that can only be upheld through a multicultural mirroring of the people’s characteristics; characteristics which today are always defined in terms of race, ethnicity, sex, and sexual orientation. Precisely this diversity-as-justice view has undermined the rule of law in the United States. In the name of this odd sense of justice, courts, executive agencies, and even legislatures have eschewed known, predictable laws in favor of vague quasi laws they find more useful for achieving their ideological ends and have used them to reengineer elections, local associations, and even the family. Exceptions, waivers, judicial gerrymandering, and raw unlawful power have been used to uphold or strike down everything from college admissions policies to jury selections to electoral maps. In the name of “diversity” judges and various administrators have imposed rules that are unpredictable on the basis of specious, opaque reasoning rooted in their own policy preferences rather than the law of the land.

The same has gone for “fundamental” rights. Here judges in particular have manufactured or distorted rights and dubbed them fundamental where and when they find them useful for upholding or striking down policies, as their preferences dictate. One need only utter the words “right to privacy” to make clear the cynicism with which fabrications have been read into the law, to the great loss of consistency, predictability, and people’s ability to plan their own lives. Meanwhile, in much of the rest of the world, ruling elites promise everything from leisure to healthcare to “equitable” economic development as “rights,” then torture and kill political opponents seeking to judge them according to their promises.

Even if one agrees that the goods espoused in the utopian sections of the “Rule of Law Index” are in fact good, over time their mischaracterizion as part of the rule of law renders these goods, and the rule of law itself, impossible.

 

Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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