The Fundamental Problem With “the Rule of Law”

Keep your eye on a fascinating project underway in England & Wales, where the Legal Services Board (overseer of all legal regulators there) has launched a “programme of work” devoted to ethics, professionalism, and the rule of law. These are subjects overdue for a critical reconsideration, given how much the world has changed in the last 15-20 years, and other countries certainly will benefit from the LSB’s work here.

It’s worth taking note, however, of the tone of the LSB’s early forays into this topic. A blog post from the Board’s regulatory policy manager, which makes several excellent and important points about the rule of law, begins by name-checking the Code of Hammurabi and Magna Carta and continues in that vein. It’s the kind of rhetoric we’ve come to expect in discussion of the rule of law: historic, lofty, civilization-is-riding-on-this, that sort of thing.

A very different tone was evident in comments from the Legal Services Consumer Panel, a British consumers’ rights group, in February when it called on the LSB to reduce its focus on the rule of law and professional ethics, and pay more attention to access to justice for those who are socio-economically barred from the justice system.

No one would argue the access problem. Studies continue to confirm that at least 80% of people who experience life challenges that the law could help remedy never seek the assistance of a lawyer. These people either don’t recognize that their problem has a legal dimension, try to solve the problem themselves, or simply resign themselves to their fate. Almost without exception, these people are without money, time, education, and connections.

What I find really interesting in the Panel’s comments, however, is the unspoken assumption that “the rule of law” and “access to justice” are two unrelated and even opposing concepts: attention given to one is at the expense of the other. This is not an isolated view: You’ll find both within and outside the legal sector the idea that “the rule of law” is stodgy and largely theoretical, while “access to justice” is vital and viscerally real.

I think the legal profession needs to shoulder most of the blame for this dichotomy. In countless speeches and publications, we’ve created and encouraged an understanding of “the rule of law” that’s so high-minded and (self)-righteous that it can feel disconnected from the real world. The ABA’s definition is a good example:

“The rule of law is a set of principles, or ideals, for ensuring an orderly and just society … [in which] no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws, there are clear and fair processes for enforcing laws, there is an independent judiciary, and human rights are guaranteed for all.”

You can almost hear “Pomp and Circumstance” playing in the background. At the heart of this definition (with which I completely agree) and others like it are the axioms that “no one is above the law” and “those with power must adhere to the law.” Of course, these are accurate and praiseworthy principles.

But these definitions say nothing about those who are without power. They say nothing about those who are beneath the law.

When we talk about the rule of law as a shield against tyranny and proudly declaim that no one is above it, we’re employing an exclusionary understanding of the term. We’re saying, “These are all the rights and privileges that the law affords. No one, regardless of who they might be, is entitled to more.” This is the rule of law as a “ceiling” on rights, an equalizing cap on its benefits, and it’s great — as far as it goes.

But we should also talk about the rule of law as a sword against inequity, and demand with equal force that “no one is beneath it.” We should employ an inclusionary understanding of the term. We should declare: “These are all the rights and privileges that the law affords. No one, regardless of who they might be, is entitled to less.” This is the rule of law as a “floor” on rights, an equalizing base for its benefits.

An inclusionary rule of law would look at the justice available to the rich, the corporate, and the privileged — the justice on display in superior courts and high-value arbitrations and gleaming corporate law firms worldwide — and say, “Everyone is entitled to this level of care and attention from the legal system. This shouldn’t be the pinnacle of law; it should be the entry point.”

For whatever reason, we’ve never thought of the rule of law this way. We’ve never considered that it might be used not to keep some people from getting too much law, but to make it unacceptable that most people don’t get enough.

Imagine if we did. Imagine what a justice system would look like that said, “The law will afford no less to the poor than it does to the rich.” How would we change the justice system? What would we allow that we now forbid; what would we grant that we now withhold?

That’s my challenge to all of us in the legal sector, including the LSB. Make an inclusionary rule of law foundational to legal ethics and professional responsibility and to justice system accessibility and operations. Bring it to people where they live and work, in their homes and in the streets. Make sure that no one is beneath the law.