The Connecticut Bar Association is pleased to announce that its Rule of Law Conference will take place on November 16, 2012. The topic of this year’s Conference is informal rulemaking, and particularly whether such rulemaking creates interference, delays and increased costs to doing business in Connecticut.

Announcement

In the months leading up to this year’s Conference, the Rule of Law Blog will speak with Connecticut leaders in business, academia, and law to preview the discussion. As we gear up, please enjoy the Rule of Law Blog’s interview with Steven Greenspan, Francis Brady, and Wesley Horton – three of the Conference’s chairs – on how they define the Rule of Law.

Steven Greenspan, Francis Brady, and Wesley Horton

What is the Rule of Law?

Francis Brady

My point with respect to the Rule of Law is that it has to constitute a structure wherein all citizens are governed equally and fairly. Much emphasis has been placed on the importance of democracy, and certainly democracy is important to society in a number of fundamental respects.

I suggest the controversial point, however, that there does not have to be a democratic institution that sanctions or develops the Rule of Law. It can be an autocratic system. One that comes to mind is the military where there are very strict rules adopted by a top-down administration.

There is no flexibility for most of the members of the military in contributing to that structure of the Rule of Law. But there is a fair and uniform administration of that rule. And that is what’s important to the principle.

Wesley Horton

There are two points I wanted to make. The first is that the Rule of Law has to apply to the government itself. The government must follow the Rule of Law just as everyone else must. The second point is that it is certainly true that nondemocratic societies need a Rule of Law as well as anyone else.

The best example that was given at the Rule of Law Conference was by the business people who said that they would much rather deal with China than Russia today, even though neither is a model of democratic governance.

This is because at least in China, there appears to be less of a problem of corruption and less of a problem of government leaders pressing their thumb on the judges and the judicial system.

Steven Greenspan

It is necessary for any civilized society to have a strict set of rules that can be applied on a consistent basis, and more importantly, that the citizenry can have some predictability in terms of the Rule of Law. In the business context, no one wants to invest in a country where there isn’t a predictable set of laws.

In the social context, it is important that the Rule of Law be understood so that the impact of individual conduct is clear, rather than rules being applied on an ad hoc basis. So I think Francis is right. You could have a very autocratic government.

You could, in fact, have a dictatorship with a very strong set of laws, and those laws might be applied in a harsh way. But if they are evenly applied on a consistent basis, then you have a consistent Rule of Law that people could rely on. It is uncertainty that undermines the Rule of Law.