Saturday, January 20, 2007

Bridging the divide between lawyers and mediators, Part 1: valuing the rule of law

I begin my series on "Bridging the divide between lawyers and mediators" in contemplation of the rule of law--what has been described as "the bulwark of our democracy". Law after all stands at the center of our political and civic lives. It is the backbone of our political systems, provides certainty to our commercial transactions, reduces arbitrariness, offers recourse to the wronged, and ensures equality and individual liberties.

For any of us to appreciate the work that lawyers do, we need to begin by appreciating the law itself.

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Earlier this week the U.S. observed Martin Luther King Day, when virtually the whole nation pays homage to key elements of the rule of law--the importance of justice and the value of civil liberties in a democratic society--or at least pays lip service to those things. The problem though with holidays like this is that for one day the words "liberty" and "justice" are on everyone's lips. But, like the words "peace" and "good will" at Christmas, on the following day they seem conveniently forgotten.

Here in post-9/11 America, the rule of law has really taken it on the chin.

Political leaders have threatened or taken steps to strip courts of jurisdiction to hear certain kinds of cases. Most notoriously, last year federal courts lost the authority to hear challenges by foreign nationals to challenge their detentions as terror suspects.

As anger at "activist judges" spreads, death threats against judges for controversial decisions are on the rise. Attacks on judicial independence are increasingly common--consider for example South Dakota's Amendment E which would have stripped judges of their immunity to allow lawsuits against them by dissatisfied litigants. Meanwhile, just about everyone these days hates lawyers.

That's the state of the rule of law in the 21st century.

For just a moment, let's wind back the clock to a time almost half a century earlier when the rule of law actually earned its own special day of recognition: Law Day, May 1, a day proclaimed by President Dwight Eisenhower in 1958 to recognize and honor the rule of law.

I invite you to read the text of the 1958 radio broadcast by then American Bar Association president Charles Rhyne announcing the enactment of Law Day. At the time Rhyne spoke these words, Communism was the political threat du jour. Therefore as you read the text of the broadcast replace the words "Communism" and "Communist" with their 21st century analogues. And as you do so, try very hard if you can to imagine the current White House administration, members of Congress, and state and local politicians throughout the U.S. affirming Rhyne’s words. Be sure to watch out for the following language:
In America law reigns supreme. No man in our Country is above law, not even the President of the United States...

The rule of law has been the bulwark of our democracy. It has afforded protection to the weak, the oppressed, the minorities, the unpopular; it has made it possible to achieve responsiveness of the government to the will of people. It stands as the very antithesis of Communism and dictatorship...

The lawyer is the technician in man’s relationship to man. There exists a worldwide challenge to our profession to develop law to replace weapons before the dreadful holocaust of nuclear war overtake our people...

In our country ignorance of the value of law in international relations and what it could do for the people of the world is appalling. A major purpose of "Law Day-U.S.A." is therefore to demonstrate to our people that the need for law in the world community is the greatest gap in the growing structure of civilization...
Say it loud: I'm a lawyer and I'm proud.

Coming up next in this series: "What mediators can do for lawyers".