The Rule of Law and the Judicial Function in the World Today
O'Scannlain, Diarmuid F., Notre Dame Law Review
Good evening. (1) It is a pleasure to be here at the University of Notre Dame London Law Centre, and I am deeply honored to have been asked to speak from the "Judge James J. Clynes, Jr., Visiting Chair in the Ethics of Litigation within the Judicial Process." The ethics of litigation, of course, is not just for practitioners. It is also for judges. It is for that reason that the Clynes Chair has, as one of its concerns, the "practice of handling and resolving cases, both at the trial and appellate levels." While I wish to offer today some observations on that practice, I will not address it directly and at once, as would be my tendency as a judge. Rather--this being a scholarly affair--I will do my best to proceed as would an academic, taking up the question obliquely, incrementally, and only after addressing a more abstract subject to which I have lately been giving much thought: namely, that universally invoked term the Rule of Law.
The world's oldest written constitution still in effect has many inspiring lines, but perhaps the one that most stirs the souls of the patriotic appears in Article 30. (2) Delineating a familiar separation of powers, that Article forbids the legislative, executive, and judicial branches from swapping or mixing functions. "[T]o that end"--and here's the line--"it may be a government of laws and not of men." (3) John Adams, the author of that line and most of the rest of the Constitution of the Commonwealth of Massachusetts, penned those words in 1779, eight years before the adoption of the second oldest written constitution still in effect. Writing just over twenty years later, the great Chief Justice John Marshall would affirm, in Marbury v. Madison, that "[t]he government of the United States has been emphatically termed a government of laws, and not of men." (4) Of course, neither Adams nor Marshall was on to something new with this "government of laws" notion. The idea that law, rather than certain men, ought to govern men--or, put differently, that men ought to self-govern through law--is quite old. In Western civilization, it is as old as political philosophy itself.
We invoke it still today, perhaps more vociferously than ever before. From the lips of Socrates and the quill of Chief Justice Marshall, the principle of the Rule of Law now takes center stage in the theater of international relations. This is no doubt because, as a global community, we are painfully aware that the Rule of Law has had some bad years of late--indeed, a bad century. In the concentration camps of Nazi Germany, the gulags of Soviet Russia, the killing fields of Cambodia, and the genocidal wastelands of Kosovo, the Rule of Law was nowhere to be found (though perhaps, with enough searching, one could uncover its remains--it has a way, after all, of being tyranny's first victim). The nightmare of the twentieth century having passed, we naturally wish to do all that we can to ensure that such tragedies never happen again. As most recognize, that project begins and ends with understanding, spreading, and strengthening the Rule of Law in every corner of the globe.
Spearheading the rhetorical effort on this front lately has been, perhaps surprisingly to some, the United Nations itself. Last September, I had the fortune of attending the historic High Level Meeting on the Rule of Law of the 67th Session of the U.N. General Assembly. At that session, leaders from more than eighty countries gathered to reiterate not only their own commitments to the Rule of Law but to reaffirm our commitment as a global community to that principle. To that end, the General Assembly adopted a declaration. (5) "[T]he rule of law," it reads in part, "applies to all States equally" and ought to "accord predictability and legitimacy to their actions." (6) The Rule of Law, it also says, entails democracy, independent judiciaries, and the securing of human rights. (7)
This is heartening language. …