The Rule of International Law
Waldron, Jeremy, Harvard Journal of Law & Public Policy
This Article will focus on how one should think about the rule of law in the international arena. Asking about the rule of law in the international arena is not just asking whether there is such a thing as international law, or what it is, or what we think of particular treaties (such as human rights covenants), or of the value of customary international law, or of the enforceability of international law in our own courts. The phrase "the rule of law" brings to mind a particular set of values and principles associated with the idea of legality. (1) These values and principles are the ancient focus of our allegiance as lawyers. The rule of law is one of the most important sources of the dignity and honor of the legal profession, and an awareness of the principles and values that it comprises ought to be part of all lawyers' professional ethos, something that disciplines the spirit and attitude that lawyers bring to their work.
True, the rule of law is not the only value that lawyers serve. Lawyers must serve justice too, for justice is part of law's promise. (2) And, of course, lawyers serve the interests of their clients and of society generally. But the rule of law constrains lawyers in their pursuit of these other goals: they pursue justice and the social good through the rule of law, not around it or in spite of it. This Article will talk particularly about the obligations the rule of law imposes upon lawyers as they act in various capacities.
Is it clear what the rule of law demands of lawyers in the international arena? Many people think it demands less in the international arena--that it demands less of a national government in the international arena, for example, than in the domestic arena--not just because there is less international law but also because a different attitude toward the rule of law is appropriate in international affairs. This Article is skeptical about that suggestion, and I shall present a number of reasons for rejecting it.
To begin with, what does the rule of law require of lawyers in the municipal arena? (3) Usually one thinks of the rule of law as a requirement placed on governments: the government must exercise its power through the application of general rules; it must make those rules public; it must limit the discretion of its officials; it must not impose penalties on people without due process; and so on. But the rule of law applies to the individual, too. So, what does the rule of law require of the ordinary citizen? Well, it requires that she obey the laws that apply to her. She should be alert to changes in the law; she should arrange for her legal advisors to keep her informed of her legal obligations; she should refrain from taking the law into her own hands; and she should not act in any way that impedes, harms, or undermines the operation of the legal system. Every ordinary citizen has these obligations and can properly expect the assistance of her legal advisors.
As the ordinary citizen goes about her business, she may find that there are areas where the law imposes minimal demands. on her or no demands at all, instead leaving her free to her own devices. This is not a matter of regret. Allegiance to the rule of law does not mean that the citizen must wish for more law--or less freedom--than there is. Neither does it require that she play any part in bringing fresh law into existence if she does not want it. She must obey the law where it does exist, but she has no particular obligation where it does not. It is not up to individual citizens or businessmen to do the lawmakers' job for them. For example, they have no duty to extend the scope of the law's constraint (in accordance with common sense, morality, the spirit of the law, social purposes, or anything else), if the sources of law do not disclose an unambiguous enactment to that effect.
We can take this point even further. According to most conceptions of the rule of law, individual citizens are entitled to laws that are neither murky nor uncertain but are instead publicly and clearly stated in a text that is not buried in doctrine. …