The Rule of Law

January 7, 2005

The Rule of Law
Craig S. Barnes

In early January, 2005, the supreme court of Chile ruled that former president Augusto Pinochet should stand trial for crimes of murder and conspiracy. During the same week the supreme court of Ukraine rejected their prime minister Victor Yanukovich’s claim that he had been cheated out of votes in the presidential election. In one week, that is, two law courts in most unlikely places asserted the rule of law, one against a former supreme patrón and one against a former supreme party boss. Twenty years earlier either action would have been unthinkable.

During 70 years of Soviet rule in the Ukraine, or for that matter anywhere else in the Soviet Union, courts of that country served the interests of established leadership. If leadership accused some person of a crime, conviction was certain. In the tradition of insider government one would therefore have expected that this week the supreme court of the Ukraine would rule in favor of Yanukovich, the established politician. Similarly, in Chile, the notorious influence of friends in high places would have been expected to insulate a former president from court scrutiny. That a Chilean court should, to the contrary, subject Pinochet to criminal prosecution is remarkable. In these two countries the rule of law is gaining ground against the age-old principle that the king is the law.

The principle that the law is above the king is the foundation upon which rest all other of our sacred traditions of free trade, free press, free speech and free elections. No other principle is more important and historically none was harder to come by. In England the evolution from the Magna Carta in 1215 to the enactment of the Bill of Rights in 1689 was a long and tortuous road over the resistance of 21 petulant, spiteful sovereigns. It took 400 years to force monarchs to submit to due process, the rights of parliament and the independence of courts. When the principal was finally established the American colonies had just been launched and our US constitution was eventually founded upon that same bedrock. No man is above the law, neither president, nor judge, nor congressman, nor any other.

But history teaches that people with power, even in democracies, do not like to limit that power or to have it abridged and the temptation to extend even an American president’s power beyond the limits of law is as predictable as the morning sun. Abraham Lincoln abandoned habeas corpus during the civil war. Woodrow Wilson shamefully restricted free speech during the First World War. George W. Bush now claims the right to abandon the enshrined restraints of international law and to strike preemptively at any country he considers—on facts of his own choosing—to be dangerous and to abandon the Geneva conventions as they may apply to persons whom he may from time to time select. Alberto Gonzales, his nominee to be attorney general, has additionally advised the president that he may ignore the constitutional limits to his power in certain other times of his own choosing, so long as he keeps the war going. Gonzales’ advice unfortunately echoes the familiar, ancient prerogative of kings.

Instead of firing Gonzales and the other authors of this unhappy, tattered advice which should have no place in a free republic and which ignores 700 years of legal history, Mr. Bush has nominated him to become attorney general.

History prepares us for this. Those in power always desire more of it. The uncontrolled will of the war leader is what did in and finished off the democracy of ancient Athens. The drive for personal power is what installed Caesar and ended the republic of Rome. All American lawyers are therefore trained to understand that this country is founded upon the principle that power of the king, the patron, or the party boss must be controlled and that the constitution is our means for that control. If the president’s legal advisor counsels him to go beyond the constitution he counsels him to go beyond the control of his people and if a president goes beyond the control of his own people he goes beyond the basic agreement that binds and holds together a free republic. The Ukrainians and Chileans are moving toward this greater understanding. We should not turn back just when others in the world are moving in the right direction.