The rule of law and human dignity

We often speak about the rule of law as an abstract and highfalutin ideal. But the rule of law is no meaningless abstraction once we spell it out in tangible, everyday terms. When we do, it often turns out to mean something as mundane as the most humdrum cases of ordinary lawyers like Cyril Gross.

In Kosovo, where one of my legal colleagues went to work for the UN “building rule of law capacity,” the rule of law meant something equally mundane: getting municipal judges to take down their provocative Albanian flags from the courtrooms when Serbs were litigants, and teaching the foreign police enough about Kosovar law that they knew what evidence to collect when they investigated crimes.

In the United States, as in other rule-of-law regimes, we take thousands of minor institutional niceties like these for granted.

Yet, to observe the rule of law in everyday life, we will do better looking at humdrum real-estate transactions or business contracts - say, a contract between a chain of gas stations and a paper company to provide paper towels for gas station bathrooms (an example used by the legal philosopher Lon Fuller).^[3] For Fuller, law is not a body of statutes or doctrines; rather, it is the activity of lawyers as “architects of social structure.” Law enhances human dignity by knitting together thousands of details that make it possible for ordinary people to accomplish ordinary business smoothly. Fuller’s per­spective on what lawyers do strongly pervades many of the arguments that follow. From this perspective, the rule of law depends on how Cyril Gross did his job, not just how heroic human rights lawyers do theirs. In an important sense, the pervasive, inconspicuous work of ordinary lawyers on humdrum cases makes the heroic work possible. It creates the baseline of regularity that allows us to see outrages for what they are. And, of course, it maintains the legal institutions that heroic human rights lawyers rely on for their successes and even for their physical safety.

Obviously, the connection between the rule of law and the enhancement of human dignity is neither tight nor direct. Legal positivists remind us that there is no necessary connection between legality and morality. Laws and legal systems can be brutal, inhuman, and oppressive. All legal systems have been so at one time or another, and even the most enlightened systems still contain pockets of oppressiveness - and not only among anachronistic stat­utes left over from yesteryear. In what way, then, does the rule of law enhance human dignity? If the law is bad, won’t law’s rule be bad as well?

That is the wrong question. No technology of governance provides a magic bullet against brutality and oppression. The right question is how the rule of law stacks up against alternatives. Suppose we ask whether a brutal dictator will prefer to operate under the rule-of-law requirements of reg­ularity, transparency, and constraint, or a regime of arbitrariness, secrecy, and unfettered discretion. I think the answer is obvious. Although no logical inconsistency exists between the rule-of-law virtues and substantively hor­rible laws, oppression is far more easily accomplished outside the rule of law than within, and it would be puzzling for an oppressor to bind himself to the rule of law.^[4] Transparency may itself discourage brutality by exposing it to outside condemnation.

In practical terms, when states institute the rule of law, they transfer power to lawyers. To those who believe we are being smothered under a vast parasitic swarm of lawyers, this may seem like a problem, not a solution. I disagree completely. Historically, an independent bar, like an active and free press, has often formed an important counterweight to arbitrary authority. In his famous discussion of the American legal profession, Tocqueville observed that when a prince entrusts to lawyers “a despotism taking its shape from violence... he... receives it back from their hands with features of justice and law.”^[5] Fussy lawyerly formalism may be tedious and exasperat­ing, but it domesticates power.

One theme of this book, then, is that ordinary law practice by ordinary lawyers deserves attention because it is central to the rule of law. I develop this theme most prominently in chapters 3 and 4. A second theme, developed and argued in chapter 2, is that familiar dilemmas in legal ethics can best be understood as defenses or assaults on human dignity - and, conversely, that one way to give content to the concept of human dignity is to examine how it emerges when people engage with lawyers and the legal system. In chapter 2, I examine four issues of legal ethics - the right to counsel, the duty of confidentiality, lawyers’ paternalism toward clients, and the duty of pro bono service - and draw from them a naturalized account of human dignity as a relationship among people in which they are not humiliated. Non-humiliation plays a key role in my understanding of human dignity. Drawing on Avishai Margalit’s idea that a decent society is one whose institutions do not humiliate people, I argue that human dignity should best be understood as a kind of conceptual shorthand referring to relations among people, rather than as a metaphysical property of individuals.

Chapter 5, by contrast, turns to the dark side of lawyers and human dignity. It examines the work of the “torture lawyers” - US government lawyers whose secret memoranda loopholed the law to provide cover for the torture of War on Terror prisoners. Although this is a much more time-bound, fact- and law-specific topic than the more philosophical subjects treated in the remainder of the book, it seems impossible to write about legal ethics and human dignity without discussing one of the most egregious cases in recent memory of lawyers twisting law to assault human dignity. It demonstrates that fussy lawyerly formalism does not always domesticate power, particu­larly when the lawyers can keep their handiwork secret. In the same chapter, however, I argue that the torture lawyers reached the results they did only by betraying their own craft values - a backhanded acknowledgment that the connection between legal ethics and human dignity is more than wishful thinking or happenstance.^[8]