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The rule of law must be a just and equitable one

Shani Mitchell

Shani Mitchell

The rule of law is a principle where all persons, institutions and entities are subject to laws which provide accountability, equal applicability, public promulgation, and accessible justice. Is the rule of law “void ab initio” when it fails to be applied equally?
— Shani Mitchell, President, Rochester Black Bar Association

I have always felt honored and privileged to be a lawyer.  And I feel honored and privileged to have served a year as the president of the Monroe County Bar Association.  I am in many ways an institutionalist, supporting the institutions of our government.  And in

Jill Paperno

Jill Paperno

the last several months I have spoken out in support of the rule of law.  But has my insufficient analysis of the rule of law been, in part, a function of my privilege and failure to acknowledge that institutions have failed so many, and especially Black and brown communities, through our history?  While I believe we must have institutions and a government that are founded in the rule of law, I also believe we must become more active in ensuring that rule is equitable and just.

— Jill Paperno, President, Monroe County Bar Association

 

Advancing the rule of law seems a broad responsibility we, as lawyers,

Randi Proukou

Randi Proukou

may place upon ourselves. That responsibility to this principle is likely many different things to many different people — be it defending the rule of law, advocating for change in the law, or demanding justice in application of the law. But we must have our eyes wide open to intersection as well as the differences in those we serve and the way we promote the rule of law in order to truly have a commitment to the rule of law in fairness, equality, and justice for all.

— Randi Proukou, President, Greater Rochester Association for Women Attorneys

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As we celebrate the theme for this year’s Law Day, “Advancing the Rule of Law Now,” we should recognize the evolution of the phrase and concept. The rule of law dates back at least as far as Aristotle, who wrote, “It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.”

While past notions of the rule of law have recognized the primacy of the institutions and their rules over individual choices, they did not always include substantive notions of equality and fairness.  The online Stanford Encyclopedia of Philosophy states,

The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. The procedural principles concern the processes by which these norms are administered, and the institutions — like courts and an independent judiciary — that their administration requires. On some accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty and respect for private property rights.  https://plato.stanford.edu/entries/rule-of-law/.

The ABA website, the United States Courts’ website and others reflect an evolved concept of the rule of law, incorporating into their definitions values of equality and fairness.  As defined by the American Bar Association, the rule of law is “the idea that no one is above the law and everyone is treated equally under the law.”  The ABA further states on its Law Day web page that the rule of law ensures an orderly and just society. The United States Courts’ website provides a different definition of the rule of law: “Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are: publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles.”

Our country, which is considered to be one based on the rule of law, has spent much of its history adhering in many ways, though not completely, to the former concept of the rule of law, which did not require equity and fairness.  We are all familiar with the many stains on our history from slavery, the Trail of Tears, Jim Crow, the Dred Scott decision, Japanese internment camps and the Korematsu decision, the denial to women of the right to vote, and so many more.  Some of these historical tragedies are addressed in this discussion between renowned attorney Michael Tigar and the Hon. James Wynn presented by the ABA here: https://abaruleoflaw.blogspot.com/2021/04/event-recap-arc-of-moral-universe.html.

The last months have tested this country’s adherence to the rule of law under either definition.  But as we move forward and continue to face such challenges, we believe it is important to clarify which version of the rule of law we support.  Instead of supporting institutions, rules and laws simply because we support the rule of law, we must take a critical view of each, and urge that the rule of law be based on equity and fairness.  As attorneys, we are in the best position to distinguish between form and substance and ensure that our message is that for all of us to invest in, and support the rule of law, it must be a just and equitable one.

Shani Mitchell, President, Rochester Black Bar Association

Jill Paperno, President, Monroe County Bar Association

Randi Proukou, President, Greater Rochester Association for Women Attorneys