Rule of Whose Law?*

The project I am working on here is called a rule of law project. Generally, that means promoting a society that depends on its formally written laws and legal systems to function. Rule of law means you don't speed because you could get a ticket. You don't accept bribes because the you could go to jail. You don't build an addition to your 4th floor apartment and support the whole thing with two cement posts because you will violate building codes.

The concept of a society that does not depend on formal law is tricky for us to understand because we consider a workable, if imperfect, legal system as a fundamental prerequisite to a functioning society. But it isn't necessarily so. People will work out their problems and try to find some sort of justice in the most efficient means available, whether they are written, formal, or merely understood.

This is not to say that having a strong legal system isn't good. In fact, a strong, accountable, and consistent legal system is maybe the only 'export' from the West that I have seen that doesn't come with significant drawbacks (and I've considered democracy). It's something I feel confident standing behind.

I had a conversation with an Armenian law professor and my ABA director at a case law training for judges during the first week I was here. I've been mulling it over since. Here's what I've got.

When Americans and Europeans (and others) talk about rule of law we assume a very basic concept- that of a social contract. I remember a little of my 10th grade World Civ and the idea that governments exists in order to protect people from a 'state of nature,' in which we would all run with axes. We forfeit the right to drive as fast as we want to the government for protection against those who would drive faster and more dangerously.

But what if the government, and therefore the laws, don't exist to protect the people it governs? If you are part of a larger empire, a colony, or a conquered land, the rules, the laws, and the bureaucracy would most likely be in place to benefit whoever is actually in charge. In a system such as this, the rule of law calculus is different. If you obey the law, you might avoid punishment but it is unlikely that you will be substantially better off. So, those who succeed are those who skirt the system enough to benefit themselves. Survival of the cleverest rule breakers.

In Matenadaran, the Armenian ancient manuscript museum, there are lots of maps dating back thousands of years. You see Armenia on maps with Assyria, ancient Greeks and Romans. It is often marked by an ark, the one that Noah crashed into Mt. Ararat. It is an old, old place with a storied history of great empires and crushing defeats and a distinct ethnic identity that has persisted throughout it all. But, for the last 1500 years or so, Armenians have not ruled themselves. First there were the Arabs, then the Byzantian empire, Seljuk, Mongols, Ottomans, and finally the Soviets. (thanks wikipedia!)

In some ways, 1989 was the first time in 1500 years that Armenians have been free to make their own law, without a ruling party looking over their shoulder. Of course this is a vast simplification, but I think it makes sense in some ways. Since the Russians left, Armenians have stepped into the role the ruling party that governs for their own benefit. The judiciary is a prime example. In significant cases, judges often wait to hear how they should rule from 'above.' Those that buck the trend are fired, without recourse.

So, promoting rule of law is about teaching case law, how to brief a case, strategies for questioning prosecution witnesses, but it is also about a deeper, paradigmatic shift.

ps On my walk to work this morning I saw a man shaving his nose hairs with a bic razor in the side mirror of his car while his wife sold vegetables out of the trunk. If you think this is weird, talk to my Armenian friend Alina who lived in a house in Gaithersburg, MD with roommates who were into 'furries.' If you don't know, I'm not going to tell you....

* This post, as all posts, consists of RHU musings only and should be taken with several large grains of salt. And maybe a fact check to boot.