The Urgency of the Rule of Law

rule of law - gavel in a courtroom library
 

The theme of this year’s Law Day was “Advancing the Rule of Law Now.” The American Bar Association (ABA) sets the theme for Law Day each year, which is held annually on May 1.

Throughout the month, bar associations, courts, and civic organizations hold programs recognizing the importance of the law and the legal process in protecting our liberty, moving us closer to justice, and contributing to the freedoms that all Americans share.

However, data show that the public doesn’t have much trust in government or confidence in the rule of law. Moreover, given the challenges that the law and legal institutions have faced over the past year, the “Now” is a fitting theme for Law Day.

Advancing the rule of law is foundational to our democratic republic. Where do we start and how do we measure success? I’ll explore this below.

What is the Rule of Law?

The World Justice Project (WJP), a presidential initiative of the ABA that is now an independent, nonprofit organization, describes the rule of law as a durable system of laws institutions, norms, and community commitment characterized by four universal principles. These include:

  1. accountability for government and private individuals;
  2. just laws that are clear, applied evenly, and protect fundamental rights;
  3. open government (i.e., the processes by which the laws are enacted and enforced are accessible, fair, and efficient); and
  4. accessible and impartial dispute resolution, delivered timely by competent, ethical, and independent representatives who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

WJP collects, organizes, and analyzes original, independent data measuring how the rule of law is experienced and perceived around the world in its Rule of Law Index.

The Index breaks down the four universal principles of the rule of law by eight factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.

Although we may view the rule of law as an issue belonging under the auspices of only lawyers and judges, it is repeatedly pointed out in current events that issues of safety, rights, justice, and governance affect us all. Everyone is a stakeholder.

As the WJP points out, effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It’s the foundation for communities of opportunity and peace—underpinning development, accountable government, and respect for fundamental rights.

Where Does the United States Rank?

The WJP Rule of Law Index 2020 provides overall scores on adherence to the rule of law ranging from 0.0 on the weak side to 1.0 on the strong side.

The United States achieved an overall score of .72, unchanged from 2019, but dropping one place on the global ranking to 20 out of 128 countries.

Significantly, however, the United States received below middling scores on the civil justice factors of accessibility and affordability (.45) and no discrimination (.39), and the criminal justice factor of no discrimination (.37).

These findings are interesting when compared to the 2021 ABA Survey of Civic Literacy, which asked respondents to rank their agreement with the statements: “the nation’s judicial system adheres to the rule of law, under which all individuals are treated equally in the eyes of the law” and “the justice system has racial biases built into its rules, procedures and practices.”

As the figures below show, perceptions that the United States adheres to the rule of law unaffected by racial bias vary widely by age and race. Younger and Black individuals more strongly agree that racial biases are built into the justice system while older and white individuals more strongly believe that the judicial system treats all equally under the law.

 

These results harken back to the findings of the Institute for the Advancement of the American Legal System’s (IAALS) “Public Perspectives on Trust & Confidence in the Courts” report, which documented the public’s lack of trust in the courts.

In a piece discussing the significance of low public confidence in the legal system, former IAALS Executive Director Rebecca Love Kourlis spoke to the harsh reality:

“The rule of law is built on the notion that the laws treat every person equally, and it holds America up as a nation in which race, ethnicity, religion, gender, sexual orientation and yes, even pocketbook, do not affect the outcome of legal proceedings. But people do not believe that is true; hence, they distrust the legal system—and they distrust us, the lawyers and judges who populate it.”

Kourlis went on to say that if the public’s distrust in the legal system is a problem of access, we have a way forward “to rebuild the system in a far more open, transparent, accessible way.”

What is Illinois Doing to Advance the Rule of Law?

There are some bright spots on the horizon when it comes to building a more accessible system. Many states have access to justice commissions or organizations devoted to these issues.

Since 2014, the National Center for Access to Justice (NCAJ) has created a system that ranks the 50 states, D.C., and Puerto Rico on the adoption of best policies for self-representation, language access, disability access, and attorney access.

In the NCAJ’s 2020 Justice Index report, Illinois scored 56.03 out of 100 on these policies, which ranked the state ninth in the country. This is an improvement for Illinois, which ranked 10th in the nation in the 2016 Justice Index, with a score of 52.97.

Specifically, in the 2020 Index, Illinois scored 88.37 in support for self-representation, 53.46 in language access, 45.00 in disability access, and 37.30 in attorney access.

Improvements in access to justice in Illinois can be attributed to the hard work of many organizations, including the Illinois Supreme Court Commission on Access to Justice (ATJ Commission). The ATJ Commission has been making concerted efforts to increase access to the legal system in the state, including:

  • Programs aimed at making court services more user-friendly and accessible, like language access programs, as well as standardized statewide forms, legal resources for self-represented litigants, and training for court personnel on interacting with self-represented litigants.
  • A Justice For All project focused on making family court more user-friendly. The ATJ Commission issued implementation recommendations from the project in December 2020. These included making information about practices and policies in family court more readily available, both online and in hard copy, and identifying areas ripe for statewide standardization of court practices and procedures.

Likewise, recognizing the problem of attorney shortages in parts of the state, the Illinois State Bar Association established a Rural Practice Fellowship Program. The program connects rural and small-town law firms with law students and newer attorneys interested in practicing law in rural parts of Illinois.

What Needs to Change?

Data-based decisions would help make the law work better for the people. The “Grasping the Justice Gap” working paper from the WJP and Pathfinders for Peaceful, Just, and Inclusive Societies, provides a blueprint for the effective collection and use of data that “can help transform justice systems from providing justice for the few to delivering justice for all.”

This paper explains that administrative data generally comes from institutions and captures only the “supply-side” of justice systems, failing to account for the experiences of those who deal with justice problems outside of formal institutions.

Instead, the paper says we should be gathering people-centered justice data to 1) understand the scope, nature, and impact of justice problems; 2) design and deliver people-centered justice strategies; and 3) measure what works, then learn and adapt.

On an individual level, we lawyers should be asking ourselves what we’re doing to advance the rule of law.

As Comment 6 to the Preamble to the Rules of Professional Conduct states, lawyers have an obligation to “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

Advancing the rule of law doesn’t mean we must defend everything about the current system. In fact, the same Comment points out that lawyers should also seek “improvement of the law” and to “reform” the law.

There is always a need for improvement and reform. That’s the call of professionalism. And professionalism is analogous to performing art: devoted practice will bring us closer to perfection. The pièce de résistance in law is a more perfect union.

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