The International Commission of Jurists: Global Advocates for Human Rights

3. Defining the Rule of Law

Chapter 3 Defining the Rule of Law The State is subject to the law. -ICl, Act of Athens The Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily resposible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized. -ICl, Declaration of Delhi In the late 1980s liberal democratic values enjoyed spectacular triumphs . Eastern Europe and the USSR repudiated Marxism and socialist legality; multiparty democratic reforms swept Latin America and Africa. Academic theorists hotly debated the significance. Was there now universal acceptance of liberal democracy? Had Westernization created a global culture? 1 In the 1950s the United Nations brought together representatives of different legal systems to identify universal human rights. The Universal Declaration affirms: "Human rights should be protected by the rule of law." Two UNESCOsponsored colloquia at Chicago and Warsaw examined the rule of law and socialist legality. The U.N. Commission on Human Rights drafted treaty language to make rights from the Universal Declaration legally binding and enforceable under international law. The United States insisted on separate covenants, one for nonbinding economic rights and a second with enforceable guarantees of political liberty. Defining the Rule of Law 69 The ICJ created an independent NGO procedure for defining rule of law principles and did not seek to influence the U.N. treaties. The jurists became liberal agents of socialization; Western idealists defined the rule of law and influenced elite opinion at the national level. The ICJ convened four international consultations for eminent jurists in Athens, New Delhi, Lagos, and Rio de Janeiro. In preparation for a Delhi Congress working paper, Norman Marsh conducted a survey of seventy-five thousand lawyers from twenty-four countries. Cooperating groups in the United States, Germany, and Italy published survey results describing how the rule of law worked in national practice." Based on questionnaire responses from ABA committee members in seventeen cities, Ernest Angell prepared a one hundredpage publication setting forth the principles of U.S. constitutional democracy." At each congress, American, British, and European jurists led debates on natural law ideals from the Anglo-American common law and continental civil law traditions. The congresses did not include advocates of Marxist, Islamic, or precolonial systems. Communist jurists were regarded as party loyalists incapable of independent judgment . The Koran and Shari'a as enforced in traditional Muslim Qadi courts had been superseded in many European colonies. No lawyers' meeting would be possible without philosophical differences, and the ICJ congresses worked to reconcile conflicting views on economic rights, self-determination, and international enforcement. Natural Law versus Positivism Liberal idealists differed with conservative POSItIvIStSon both substance and procedure. In its most conservative sense, the rule of law assures only procedural fairness. A law-based state respects published rules enforced by independent courts. Such procedural due process leaves the state unlimited power to grant or withdraw substantive rights such as welfare entitlements or religious liberty. If a state requires monogamy for example, the rule of law would not guarantee Muslims or Mormons religious liberty to practice polygamy; it would only guarantee the procedural right to a fair trial. In positivist theory, sovereign states decide which substantive rights to confer; there is no higher natural law that governs how states treat their own citizens. Natural law advocates insist that the rule of law also requires governments to grant fundamental substantive rights. For Thomas Jefferson in the U.S. Declaration of Independence, equality and liberty were "self-evident." Civil libertarians treat individual political rights 70 Chapter 3 as inalienable, free market advocates give personal property highest priority, and socialists insist on economic justice. American and European jurists agreed that the rule of law includes basic civil and political liberties-speech, press, religion, assembly, free elections, privacy. There were minor differences on the scope of those negative rights that limit government power. The U.S. Constitution expresses fundamental liberties in absolute terms; European laws confer emergency powers on governments to limit incendiary speech and to use preventive detention. Unlike most American civil libertarians, European and non-Western jurists also favored positive economic rights to health care, education, and social security. Some advocated not only citizen rights but also civic responsibilities, especially for lawyers. When debating procedures to enforce...