What law school ought to be.

OVERVIEW
MULTI-DIMENSIONAL LAWYER
PREVENTIVE LAW AND PROBLEM SOLVING: LAWYERING FOR THE FUTURE
ESSAYS
ASPECTS OF PRACTICE
CORPORATE COMPLIANCE
RULE OF LAW
CENTER FOR CREATIVE PROBLEM SOLVING
OTHER LINKS
PREVENTIVE SUCCESS STORIES
FEEDBACK

 


THE RULE OF LAW

About Proyecto ACCESO and Preventive Law

With the end of dictatorships and a return to democracy in Latin America, the Rule of Law has become the mantra for the Western Hemisphere. Most of the countries of Latin America are transforming their legal systems from the inquisitorial to the adversarial model. Commercial laws are being harmonized and made more transparent; efficient and fair mechanisms for dispute resolution are being developed. This movement will form the basis of the Free Trade Area of the Americas – bringing together the 34 states of the Americas into one market with over 800 million people.

Proyecto ACCESO, headquartered at California Western School of Law in San Diego, has fast become an engine in the drive toward Hemispheric rule of law. Funded in part by the William and Flora Hewlett Foundation, the Organization of American States, the United Nations Development Programme, the U.S. State Department, the Chilean Ministry of Justice, and several national bar associations, Proyecto ACCESO has trained hundreds of judges, prosecutors, public defenders, justice ministry officials, law enforcement officers, and indigenous leaders in new juridical skills. With ACCESO’s curriculum, these new judicial innovation agents are empowered to meaningfully effect sustainable change and enshrine the rule of law in their respective countries.

With these innovative programs, ACCESO is developing leapfrog technology for the era of judicial reform now sweeping the Americas. By combining more supportive, participatory and inclusive forms of dispute resolution (those that are horizontal in nature) with the more traditional, vertical systems of justice, we can develop preventive and problem-solving mechanisms for the Americas that serves all the Americas. At the April 2001 Summit of the Americas in Quebec City, the leaders of the Western Hemisphere stated the following:

“We acknowledge that the values and practices of democracy are fundamental to the advancement of all our objectives. The maintenance and strengthening of the rule of law and strict respect for the democratic system are, at the same time, a goal and a shared commitment and are an essential condition of our presence at this and future Summits. Consequently, any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state's government in the Summit of the Americas process.”

Proyecto ACCESO is striving to assist in this process towards hemispheric rule of law.

 

What is the Rule of Law?

Lots of people talk these days about the Rule of Law. One hears most about it in the context of developing countries and Eastern Europe, in which the Rule of Law is urged as the foundation for both sustainable economic development and democratic governance. With the rise of global communication, human rights abuses and other violations of law no longer go unnoticed. Contract rights must be respected, disputes must be efficiently and fairly settled, and shareholder and corporate rights most be protected. Reforming legal systems to accomplish these goals has been the focus of Proyecto ACCESO and similar efforts.

Even in the U.S., however, Rule of Law issues lurk behind a variety of controversies about appropriate procedures for making decisions. The Rule of Law is conceptually broader than due process. In addition to addressing questions about procedures, the Rule of Law assumes that activities should be structured through laws framed by the state. This raises a variety of issues about freedom, tradition, private association, discretion, trust, and power. World-wide, what aspects of life we want to make subject to the Rule of Law, and what exactly we mean by that, may be one of the more important social questions for the next generation.

We should avoid conceptualizing the Rule of Law in terms of the structures of our own legal system: police, lawyers, adversary process, formal courts, etc. If one thinks of the Rule of Law functionally–making rules clear, giving people access to participate in disputes, ensuring reliability of decision making, earning people’s trust in the fairness of the process–then all sorts of alternative structures could be imagined as fulfilling those functions.

Law has become democratized, in the sense that so many more aspects of daily life are now touched by legal regulation. The old rituals that demarcated entry into the legal system have eroded considerably. One may not easily know when one is entering an aspect of life in which one must take law into account. The result is that many people respond with what legal historian Lawrence M. Friedman calls “legal behavior.” This is the explosion of people altering their behaviors thoughtfully, on account of the existence of some legal regulation, in the course of their everyday lives.

How can law respond adequately to the democratization of law’s reach into such varied life activities, without becoming oppressive? How can the interdependency of people in a modern society and economy be managed without stifling freedom? Establishing or maintaining free markets and economic choice help enormously, but are not sufficient in themselves. Market choices must be supplemented by legal regulation. That regulation, however, should seek to advance central values of inclusion, decentralized decision-making, and respect for both human differences and the bonds of non-coercive relationships. The articulation of such values, and their translation into concrete procedures for resolving legal problems, are important aspects of finding a modern, comprehensive meaning for the Rule of Law.

The proper response of our legal system to this challenge is not to redesign its rules so as to increase discretion in their application. That approach invites discrimination and corruption. The proper response is also not through enacting rules that apply differently to different people.

That practice offends the principles of liberal democracy. Rather, the proper response of the law is toward democratizing procedures and decisionmaking wherever possible. The law should attempt, where possible, to construct procedural alternatives to the detached, authoritative decision making of traditional courts. Legal “judgment,” in the traditional strong sense of a representative of the state who pronounces legal winners and losers, is not needed or appropriate for every legal problem.

Procedural alternatives for the resolution of legal problems are already springing up: in the proliferation of alternative dispute resolution methods, and in the innovations of “problem solving” drug treatment and unified family courts. The search for this new meaning of the Rule of Law is an important goal for preventive law. We seek to describe the Lawyer as Designer, and as Problem Solver–-working to solve legal problems more effectively, sensitively, and democratically.

For further explanation of the origins of the lawyer as Fighter and the expanded vision of lawyer as Designer and Problem Solver, click here to read Preventive Law and Creative Problem solving:  Multi-dimensional Lawyering by Thomas D. Barton and James M. Cooper.