This article was originally published September 3, 2021 in Business Law Today. The text of the article posted below is published with full attribution to the American Bar Association and Business Law Today.
While politically and ideologically poles apart, U.S. House of Representatives members Liz Cheney and Adam Schiff, both members of the Select Committee investigating the attack on the Capitol on January 6th, cited the rule of law as the fundamental basis for their concerns. Representative Cheney expressly said that “our most important obligation” is “to defend the rule of law.” She then rhetorically asked, “Will we adhere to the rule of law?” Representative Schiff stated, “Because if we’re no longer committed to a peaceful transfer of power after our elections if our side doesn’t win, then God help us.”
We read or hear virtually every day that the “rule of law” has once again been broken or threatened. There are many books documenting current and recent threats to democracy, widespread economic inequality, and overt discrimination against large segments of our society. Laurence H. Tribe, Harvard constitutional law professor emeritus, and two other law school professors, both former U.S. Attorneys, recently published an op-ed that concluded, “If Garland’s Justice Department is going to restore respect for the rule of law, no one, not even a former president, can be above it.”
What is the “rule of law”? All lawyers, even business lawyers, are charged with responsibility for both adhering to it in our professional practice and preserving it for the benefit of humanity and the social, political and economic order of which we are so proud. But what is it? Where did it originate? Why are lawyers in particular supposed to protect it?
This famous and almost revered term of art describes a both realistic and aspirational concept of universally applicable normative behavior for humans in relation to themselves and others, including animals, plants and other elements of creation. These norms, when initially articulated and established, are prospective, not retroactive; clearly expressed both orally and in writing with unambiguous and coherent terminology; and broadly and commonly accepted as reasonably and objectively interpreted and applied in the situations to which they are intended to apply. They are to be promulgated and enforced by persons and institutions of integrity with widely acknowledged authority to enact and enforce the norms and who themselves are expected and required to comply with them.
King John’s affixing his seal to the Magna Carta in June 1215 is frequently cited as the earliest official act of a divine right sovereign monarch recognizing that he was, after all, subject to restraints on his power. The text reads in significant part:
“No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgement of his peers or by the law of the land. To no one will We sell, to none will We deny or delay, right or justice.”
These ancient words that King John negotiated with his powerful barons expressly forbid the exercise of arbitrary or unaccountable power – and thus the use of violence – coercively to achieve the King’s goals. They further put everyone on notice that the King would not corruptly use the power he retained. These principles plainly are thus embedded in the rule of law.
Our foundational law, the Constitution of the United States, is not the result of a monarch’s recognizing restraints on his powers but is a covenant of a community who, in 1787, stated in the Preamble:
“We the People of the United States, in Order to form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
It is easy to see the basic principles reflected in the Magna Carta also reflected in the Preamble’s language. Establishing justice, ensuring domestic tranquility, providing for common defense and promoting the general welfare, while securing the blessings of liberty, are norms that are not only in the whole community’s interest, but they also allow individual members of the community to pursue happiness, one of the express goals of the Declaration of Independence. These principles are embedded in the rule of law as we commonly understand it today.
Two years ago, the American Bar Association Business Law Section Council established the Rule of Law Working Group, explicitly recognizing that business lawyers, as members of the Bar, have responsibility for not just honoring the rule of law but also for protecting and defending the Constitution, as we are sworn to do upon admission to the Bar. Why has this responsibility been assigned to lawyers? Are lawyers especially equipped to be the custodians of the rule of law?
Lawyers are educated, trained and professionally engaged unfailingly to comply with the Rules of Professional Conduct. These rules require us to be unflinchingly honest with clients, tribunals and each other as we engage on behalf of clients, and to be reasonable (i.e., to make fact-based arguments and proposals) when professionally engaged. We are also expected to assure, to the extent we can, that statutes and other normative rules are lawfully authorized and rationally interpreted and enforced, in order to promote the general welfare and secure the blessing of liberty, both currently and in the future, for the benefit and account of our clients and ultimately, also, the community at large.
These standards are explicitly set forth in the Preamble to the ABA Model Rules of Professional Conduct. “ A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. …  … As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” (Emphasis supplied.)
Of course, lawyers may reasonably be compensated for legal services rendered (Model Rule 1.5), but Model Rule 6.1, “Voluntary Pro Bono Publico Service,” states that “Every lawyer has a professional responsibility to provide legal services to those unable to pay.” Both of these rules and the principles embedded in them are conditions to our being licensed as lawyers. Thus, none of us can legitimately claim that our limited expertise or limited personal interest in knowing or caring about the rule of law, much less protecting and defending the Constitution, excuses us from respecting and indeed, honoring, these responsibilities, both in our professional practices and otherwise as “public citizens.”
- What are the implications of this responsibility?
- What persons or institutions can or should determine normative behavior?
- What restraints, if any, are imposed on the deciders or enforcers of normative behavior for each of these categories?
- What gives the restraints, or lack thereof, authenticity or legitimacy?
How does the rule of law answer or provide guidance for the answers to each of these questions? This brief article is not the vehicle for definitively answering that question, but it is important – and for lawyers, necessary – to have a working knowledge of possible answers. Although the rule of law has applicability beyond the strictly legal realm (such as with respect to the philosophical concept of justice and also with respect to ethics and morality), lawyers over the ages have assumed the mantle of its custodian. It is submitted that our challenge and responsibility is to do our part in the circumstances we currently confront as practitioners and as citizens.