rule of law (was RE: Iraqi and American democracy)

Wed Jul 20 15:10:38 PDT 2005

Yes to Prof Schor. Of course, this is why pro-executive power Justices lean
toward tough standing doctrines, as per Lujan v.  Defenders of Wildlife
(1992) where Scalia for the Court refused to follow Congress' 'citizen suit"
provision -- thus allowing executive controlled agencies to cut
environmental protections passed by earlier Congresses and not yet repealed.
Refusal to allow "citizen standing" and insisting that courts exist only to
decide controversies between individuals makes it much harder for citizens
to control executive (and legislative) over reaching.  
	Much of this thread assumes that the US is fairly legitimate.  I
would argue that while some places are much worse, the US is far from good
enough.  Not merely because of slavery in the past (or its current still
heavy shadow) but because of many other reasons, including the "bundling" of
issue decision (by allowing citizens to vote only for individual
representatives who decide many issues) which insulates most political
choices from popular control. 

Malla Pollack
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law
mpollack at uidaho.edu
208-885-2017

-----Original Message-----
From: Miguel Schor [mailto:mschor at suffolk.edu] 
Sent: Wednesday, July 20, 2005 2:59 PM
To: msellers at ubalt.edu
Cc: SLevinson at law.utexas.edu; mpollack at uidaho.edu; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
Subject: Re: rule of law (was RE: Iraqi and American democracy)

If the rule of law means limiting governmental discretion through rules laid
down in advance and following the rules laid down, then isn't our entire
system of adjudication problematic?  What makes the rule of law invaluable
in facilitating political legitimacy is that courts have considerable leeway
in following the rules laid down.  This is the reason why the Bush
administration is so worried that those arrested in the war on terror might
actually be tried in civilian courts.  You have to love a defense lawyer
such as Padilla's who can beg the court to please make the government indict
his client or free him.  Miguel

==============Original message text===============
On Wed, 20 Jul 2005 4:58:32 pm EDT "Mortimer Sellers" wrote:

I too would strongly recommend Tamanaha's book on the Rule of Law to those
of you who have not read it yet.

He points out that the concept of "the rule of law", like "democracy", tends
to be expanded to include everything good (in the eyes of the speaker) and
particularly human rights, because "the rule of law" has such favorable
connotations.

Here, too, I would say that the clear straightforward and simplest
definition is the best.  The rule of law requires limiting governmental
discretion through rules laid down in advance, and following the rules laid
down.  This means that it would be possible to have an unjust rule of law
regime, just as it would be possible to have an unjust democracy.  No state
is just without the rule of law, but there must also be just laws.

I assume that judges who embraces the rule of law as a value also accept the
fundamental justice of the legal system under which they work and believe
that it constrains their discretion in interpreting the law.

          Tim Sellers

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
Sent: Wednesday, July 20, 2005 4:34 PM
To: Malla Pollack; Mortimer Sellers; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
Subject: RE: rule of law (was RE: Iraqi and American democracy)

I don't think that Marla is in the least "odd" in raising these questions.
A superb overview of the notion of "rule of law," incidentally is contained
in a recent, short, and very readable book by Brian Tamanaha (Cambridge U.
Press).  

sandy

  _____  

From: Malla Pollack [mailto:mpollack at uidaho.edu] 
Sent: Wednesday, July 20, 2005 3:33 PM
To: 'Mortimer Sellers'; Sanford Levinson; Hamilton02 at aol.com;
conlawprof at lists.ucla.edu
Subject: rule of law (was RE: Iraqi and American democracy)

Prof Sellers lists "the rule of law" as one central component of legitimate
governments.  This prompts me to raise the meaning of that phrase in regards
to the confirmation of justice nominee Roberts.  CNN keeps replaying Pres.
Bush's assertion that the candidate should be confirmed because inter alia
he believes in the rule of law.  Also repeated in the media is the claim
that pro-choice advocates should not be alarmed because Roberts said that
Roe was "settled law" during the hearings on his nomination to the D C Cir. 

            However, I have always thought that to a Sp Ct justice, the
"rule of law" and "settled law" are much less constricting than to other
legal and political actors.  I wonder if I am "odd" in believing that (i)
Robert's comment re Roe does nothing to suggest he would not vote to over
rule Roe if a Justice, (ii) his belief in the "rule of law"  tells  me
little, if anything, about his views on the proper actions of Sup Ct
Justices. 

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mortimer Sellers
Sent: Wednesday, July 20, 2005 1:19 PM
To: Sanford Levinson; Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Subject: RE: Iraqi and American democracy

Sandy is right about the value of clarity, which is why we should try to use
the simplest and most straightforward definitions of important terms such as
"democracy" in discussing constitutions.

Politicians will, of course, cling to any term that has positive
connotations and try to use it for their own purposes.

Still, I think that President Bush is right to say that no government is
legitimate unless it is democratic.  He should add (and sometimes has, I
think) that just governments must also respect the rule of law, fundamental
human rights and constitutional checks and balances.

Just because important values are abused and disrespected by politicians
does not mean that they should not be praised and carefully articulated by
law professors.

         Tim Sellers

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
Sent: Wednesday, July 20, 2005 4:01 PM
To: Mortimer Sellers; Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Subject: RE: Iraqi and American democracy

I have no particular objection to Tim's stipulative definition, especially
when it is accompanied by his point that
"democracy-as-unrestricted-majority-rule" is in obvious tension with
standard notions of "constitutionalism," including protection of
"fundamental rights" against majoritarian abridgement.  The point is to be
clear about the definition one is using, which one rarely finds in the
speeches of, say, George W. Bush (or, to be fair, John Kerry or any other
politician who loves to prate about the concept).

sandy

  _____  

From: Mortimer Sellers [mailto:msellers at ubalt.edu] 
Sent: Wednesday, July 20, 2005 2:58 PM
To: Sanford Levinson; Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Cc: Mortimer Sellers
Subject: RE: Iraqi and American democracy

Sandy raises the question of what we mean by democracy and suggests that it
may be an "essentially contested" concept.

Democracy does not strike me as a particularly difficult concept to grasp.
It means majority rule.  The problem arises from overvaluing democracy.
Democracy is an important element in any just constitutional order, but not
the only value.  Human rights, the rule of law and constitutional checks and
balances (including the separation of powers) are also extremely important.
By using lazily "democracy" as a shorthand for this broader set of values we
make it easier for governments to establish illiberal (and therefore unjust)
democracies.  All legitimate governments are democracies.  Not all
democracies are just.  Being a democracy is not enough, on its own, to
legitimate the constitutional order in Iraq (or the United States).

             Tim Sellers

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Sanford Levinson
Sent: Wednesday, July 20, 2005 12:20 AM
To: Hamilton02 at aol.com; conlawprof at lists.ucla.edu
Subject: RE: Iraqi and American democracy

Marci writes:

.   I suppose the U.S. is going to have to decide what it means by a
democratic Iraq.  Do we mean a democracy patterned after our values, or one
that they choose?    

This, of course, raises the deepest question of what we mean by democracy.
I.e., is it enough that a newly empowered majority of Shiite Moslems will
use their voting power to "put women in their place," or does "democracy"
require some (but how much?) linkage to "liberal" values such as genderk,
religious, or ethnic equality?  Do we expect our own political leaders
(including our undemocratrically selected president (in 2000), at least if
majority rule is a sine qua non of democracy) to have a coherent theory of
"democracy," or is it sufficient for them to babble about "democracy" or
"freedom" without recognizing that these are, to put it mildly, "essentially
contested concepts"?  

sandy

===========End of original message text===========

Miguel Schor
Associate Professor of Law
Suffolk University Law School