Getting to the Rule of Law: NOMOS L

12. Might Still Distorts Right: Perils of the Rule of Law Project

265 12 MIGHT STILL DISTORTS RIGHT: PERILS OF THE RULE OF LAW PROJECT RICHARD W. MILLER These days, when intervening governments, separately or in coalition , take over a country and reshape its governance, they say that their goal is the establishment of the rule of law. In this project , they are helped by cadres of civil servants, lawyers, academics, think-tankers, and members of NGOs, often under UN sponsorship , who constitute an international network of planners and implementers seeking to advance a goal that they, too, characterize as the rule of law. Perhaps the choices actually made in the projects so described do not track the weight of evidence as to what would advance the rule of law and its underlying values. Still, clarifying that moral and political goal will help to assess those choices and proposals to improve that practice. In light of an appropriate construal, one can pose the following questions, among many others. As a general rule, would more frequent institution of criminal trials to punish those who violated human rights in the order or disorder that has been supplanted advance the values that make the rule of law important ? Would substantial strengthening of the Rule of Law Network (i.e., the international network of planners and implementers who regard the establishment of the rule of law as their goal) advance those values? Would those values be advanced if broadly anti-imperialist sentiments opposed to great power intervention 266 Richard W. Miller were weakened, so that there was more frequent intervention to spread the rule of law by the Rule of Law Imposers (i.e., the governments that exercise or sponsor military force to change foreign governance and say that their postconflict goals include the rule of law)? Would citizens of Imposers advance the values underlying the rule of law by supporting a general precept of great perseverance in shaping governance postintervention? After offering a construal of the rule of law and the values behind it, I will argue that the right response to these proposals to strengthen impositions in the name of the rule of law is “Probably not.” Because of, not despite, the importance of the rule of law, the rule of law project should be anxiously scrutinized and cautiously contained. 1. The Rule of Law and Its Value One familiar construal of the rule of law might be called “justice as regularity”—as John Rawls does in recommending it.1 People are to be governed by imposing general, publicly proclaimed rules, precise enough that they can be reasonably sure of what is proscribed . These rules are to be reliably applied by judges who show no bias and strive for reasoned interpretations making the system of rules as a whole as coherent as possible and giving weight to precedent. Prosecutors and police are to act in ways that serve the same purpose of reliable, impartial enforcement. Rules that people cannot take into account in making choices, above all, ex post facto prohibitions, are to be avoided. Those who obey these rules are in the clear so far as political coercion is concerned: nullum crimen sine lege. The public authority established by law effectively monopolizes permission to use force and grants it under strict, law-governed supervision. In their richly informed, thoughtful inquiry into the rule of law after military interventions, Can Might Make Rights? Jane Stromseth , David Wippman, and Rosa Brooks label this conception of the rule of law “formal” and “minimalist,” noting that a regime meeting this test could impose laws that are unjust in fundamental ways and suggesting that partisans of more substantive accounts “insist that injustice is incompatible with true rule of law.”2 But if this is the whole critique of the regularity account, minimalism should triumph. The alternative would be to make “the rule of Might Still Distorts Right 267 law” mean the same as “just governance,” losing a means of characterizing one specific feature of just governance. A better strategy (consistent with the main thrust of Stromseth et al.’s discussion) is to note that the rule of law, in the narrow sense of regularity, is important because of a moral value of autonomy which can be traduced, not just by irregularity but by regular laws of certain kinds with certain origins. Rather than expressing a pedantic obsession with generality, precision, and clarity, the rule of law in the narrow sense is morally important because...