theatlantic | Judges, who are mostly technical people, help weave a fabric of
practices, rules, regulations, customs, agreements, and working
arrangements—some local and some regional, some formal and some
informal. The fabric, like that of Penelope, sometimes comes undone
during the night; but we must simply continue to work on the problems
before us. I have always liked FDR’s advice: “It is common sense to take
a method and try it: If it fails, admit it frankly and try another. But
above all, try something.”
Third, and finally, my
legal examples suggest the importance of looking to approaches and
solutions that themselves embody a rule of law. To achieve and maintain a
rule of law is more difficult than many people believe. The effort is
ancient, stretching back to King John and the Magna Carta, and still
earlier. And the effort does not always succeed. I often describe to
judges from other countries how, in the 1830s, a president of the United
States, Andrew Jackson, when faced with a Supreme Court decision
holding that northern Georgia (where gold had been found) belonged to
the Cherokee Nation, is said to have remarked, “John Marshall [the chief
justice] has made his decision, now let him enforce it.” Jackson sent
troops to Georgia, but not to enforce the law. Instead they evicted the
tribe members, sending them along the Trail of Tears to Oklahoma, where
their descendants live to this day.
We do not have to convince judges or lawyers that maintaining the rule of law is necessary—they are already convinced. Instead we must convince ordinary citizens, those who are not lawyers or judges, that they sometimes must accept decisions that affect them adversely, and that may well be wrong. If they are willing to do so, the rule of law has a chance. And as soon as one considers the alternatives, the need to work within the rule of law is obvious. The rule of law is the opposite of the arbitrary, which, as the dictionary specifies, includes the unreasonable, the capricious, the authoritarian, the despotic, and the tyrannical. Turn on the television and look at what happens in nations that use other means to resolve their citizens’ differences.
For my generation, the need for law in its many forms was perhaps best described by Albert Camus in The Plague. He writes of a disease that strikes Oran, Algeria, which is his parable for the Nazis who occupied France and for the evil that inhabits some part of every man and woman. He writes of the behavior of those who lived there, some good, some bad. He writes of the doctors who help others without relying upon a moral theory—who simply act. At the end of the book, Camus writes that
the germ of the plague never dies nor does it ever disappear. It waits patiently in our bedrooms, our cellars, our suitcases, our handkerchiefs, our file cabinets. And one day, perhaps, to the misfortune or for the education of men, the plague germ will reemerge, reawaken the rats, and send them forth to die in a once-happy city.The struggle against that germ continues. And the rule of law is one weapon that civilization has used to fight it. The rule of law is the keystone of the effort to build a civilized, humane, and just society. At a time when facing facts, understanding the local and global challenges that they offer, and working to meet those challenges cooperatively is particularly urgent, we must continue to construct such a society—a society of laws—together.
