Dean's Address

Musings on the Rule of Law in Troubled Times

By Robert T. Hall, Esq.

I come to you today as Hunter Thompson might, full of fear and loathing. Fear that I have nothing to contribute to your already great body of knowledge about the rule of law. Self-loathing about my inability to convey to you the importance of this subject.

As the Academy grows with the China Program -- the program which Ray and Audrey Tam have done so much to build and which brings so much credit to the Academy -- we must be prepared to discuss with our Chinese guests our view of the rule of law.

When our guests arrive in Hawaii for their annual orientation week, Ray and Audrey host a reception and dinner for them. In the years my wife, Sally, and I have had the privilege of attending, Ray has introduced our Chinese guests to the wonderful collection of Fellows and Hawaiian judges and lawyers he has assembled to teach our guests about our system, “Welcome to America and the rule of law.”

Sally and I had hosted two Chinese guests prior to September 11, 2001. It was very easy and very comfortable to hear Ray say “Welcome to America and the rule of law.” But after September 11th and our response to that dreadful day, I have become less comfortable with and less clear of its meaning. What do we convey to our Chinese guests when we welcome them to America and our rule of law? The phrase seems much more complex now.

The Virginians here know Justice Donald Lemons of the Virginia Supreme Court well. Don is one of the younger members of our Court, and a wonderful, insightful, and dynamic justice committed to the rule of law.

Not long ago he returned to the United States from an Inns of Court meeting in England. While we were exchanging e-mails about his trip, I asked him what he thought we mean when we speak of the rule of law now.

He said, “I'm glad you asked. I'm the chairman of the joint task force to create the rule of law program for the 400th anniversary of the founding of Jamestown. People will be coming from all over the world to that conference. The working committee has crafted a working definition of the rule of law.”

I'll share Justice Lemons’s definition with you in a minute because Justice Lemons ended on a note I think is so important.

After getting his e-mail, I went and did what we do so often these days, I ran a Goggle on the rule of law, looking for a working definition. I found hundreds if not thousands of references to the rule of law, but, with one exception, not a single working definition of the rule of law and what we Americans mean by it. 

I turned to our search of the state laws and federal laws, the cases decided since we started automating our cases, and found no case definition -- surprising -- no case that helped define the rule of law.

Let me return to Justice Lemons's e-mail to me. Please bear with my reading it for a moment because I want to quote him accurately.

"The planning committee for the conference began with the question what does the rule of law mean?

At the outset we all had to acknowledge that a nation's aspirations are often at odds with its practices.

We also had to acknowledge that the rule of law will have different manifestations in different places, different cultures, and at different times in our history.

Whatever it means in aspirational terms, we concluded that the rule of law refers to governing principles which include, at the very least, the following concepts:

private ownership of property, (by the way, the constitution of China was recently amended to guarantee rights of private property)

the integrity of contract,

an independent system of enforcing the first two concepts,

recognition of the dignity and worth of the individual,

freedom of expression,

freedom in worship and belief,

predictable and reasonable rules and procedures to maintain order,

representative government that makes such rules and procedures, and

government that does not concentrate power exclusively in particular people or institutions.”

Justice Lemons concluded with a comment I thought most poignant:

"While it is true that in the United States we look back in shame and embarrassment at episodes in our history that seem contrary to our aspirations, it is nonetheless proper to reaffirm aspirations lest we forget them altogether."

We, as a nation, have had many occasions to be ashamed and embarrassed. The ink was barely dry on our Constitution when our rule of law was challenged. The French Revolution unleashed new forces in Europe, and there was concern that France might attack the United States. Out of a fear of war, and little more, we passed not just the Alien Sedition Act but the Alien Friends Act.

The Alien Friends Act gave complete authority to the President of the United States to seize aliens and have them deported without a hearing, without counsel, and without formal charges. The deported alien didn't have to be from a country with whom we were at war or with whom were about to go to war.

When did we first start to live under the rule of law? Most of the people who respond to that question think it was when we adopted our Constitution. Not a bad guess. Not a bad choice. Some here might tend to agree with it. However, the rule of law at that time not only allowed slavery, it was a rule of law in which women could neither vote nor own property.

We fought a war, the Civil War, because the rule of law failed to resolve the disagreements among our people. After the Civil War and after the abolition of slavery, we spent the next hundred years in which our rule of law accommodated segregation of the races in public services and schools. That rule of law accommodated the fiction that if these services were equal they could, under our rule of law, be separate.

So, I must tell you I'm not terribly comfortable with saying to you that our rule of law commenced with our Constitution. Many nations have constitutions but don't have the rule of law as we know it.

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