Friday, June 9:
The rule of law is often advanced today, especially in Latin America, as a solution to many problems of abusive governmental power, economic stagnation, and corruption. The overarching purpose of this meeting of SELA is to better understand and evaluate this idea. Some see the rule of law as commanding nothing more than the strict adherence to a set of specific rules enforced by an independent judiciary. Is this a sufficient way of understanding the rule of law or is it necessary to incorporate more normative components in order to yield a "thicker" or more robust conception of the rule of law? What might such normative components be? What is the precise value of the idea of the rule of law, however defined? Many treat the rule of law as a transcendent ideal that must be pursued with unqualified commitment and energy. At the same, however, many proponents of this idea accept apparently contradictory practices that grant wide discretion to legal actors. Is such discretion necessarily unjustified or, alternatively, might the rule of law ideal be properly seen as an obstacle to the achievement of desirable, practical ends? We must also explore the possibility that many benefits that are supposed to follow from the rule of law, such as stability, predictability and transparency, are derived not from this ideal as such but from deeper social practices and understandings that are presupposed by the rule of law and upon which it depends.
The challenge of developing and nourishing the institutions and culture necessary for the rule of law is complex. Respect for the law is difficult to achieve in situations where the courts and other legal actors are captured by special interests and the bar is in disrepute. The challenge of giving life to the rule of law has a special urgency in a number of Latin American nations, which in their not too distant past were ruled by dictators who denied the constraining force of law and represented the forces of lawlessness. In these cases demands are made for retrospective justice, and often defended in terms of restoring the rule of law. This panel will inquire into these demands: will retrospective justice reestablish the rule of the law? Alternatively, might the pursuit of retrospective justice disrupt the development of a stable democratic society on which the rule of law depends? Would the public recognition of the truth regarding past conduct, without trial and punishment, be more effective toward achieving democratic stability or the rule of law? In considering these questions of retrospective justice as well as the prospective design of new constitutional protection, the question must be addressed whether the cultivation of mutual understanding, respect and restraint, so necessary to a stable democracy, arise from adhering to the rule of law or instead are the preconditions or are presumed by the rule of law.
- Roberto de Michele
- Alvin Klevorick
- Calixto Salomao Filho
- Roberto de Michele
What is the relationship between economic efficiency and the rule of law? Conventional modern economic thinking holds that the rule of law, which has been understood to entail the recognition of certain property rights, establishment of institutional mechanisms for judicial enforcement of contracts, and guarantees for stability and predictability of legislative and administrative economic regulations, will serve efficiency and is necessary for the functioning of the market. Three different questions can be raised about this purported relationship. The first is whether a public legal infrastructure is in fact necessary for efficient market functioning or whether alternative private orderings could establish sufficiently stable commercial relationships. Recent efforts to find private alternatives to traditional legal institutions, such as those proposed by the Alternative Dispute Resolution (ADR) movement appear to rest on this latter premise. A second question is the possibility that the law itself will express values and concerns, for example, fairness or equality, that will in fact disrupt market efficiency. A third possibility is that extensive legal regulation tends to create such cumbersome market conditions as to cause dysfunctions, such as pervasive corruption. In some Latin American countries, executive action inconsistent with established legal procedures was justified as necessary to spur economic growth or implement essential reforms conducive to market efficiency.
Saturday, June 10:
The rule of law appears to imply certainty and accountability and thus seems to be at war with the discretion commonly found in complex legal systems. This apparent conflict between discretion and the rule of law arises in a wide variety of contexts: criminal sentencing practices; the existence of executive pardon power; the adherence of judges to prior judicial precedent; "liberal" rather than "strict" interpretation of constitutional provisions or embellishing the "plain language" of statutes; requirements that legislatures must enact narrowly circumscribed and transparent statutes (under constitutional doctrines such as "void for vagueness" in criminal law or prohibitions against "excessive delegation" in general legislative matters). In many instances, such as prosecutorial discretion in enforcing criminal laws or the application of rigid criminal sentencing guidelines, the existence of discretion is denied even though it persists, indeed is inescapable. The question arises whether it would be desirable to formally acknowledge the existence of discretion and develop structures for managing and controlling it. This panel will examine these apparent conflicts in different contexts; and thus permit all of us to consider whether it is desirable or even possible to eradicate or substantially constrain various elements of discretion in the legal system.
Many supranational institutions have been created in recent years, some concerned with the enforcement of human rights, others with economic activity. This development in some instances was a response to individual nation-states' abuse of, or failure to protect, their own citizens, and the emergence of new substantive norms or transnational rights based on personhood rather than entitlements derived from national citizenship. In other instances, supranational institutions arose from recognition of the inability of individual nation-states to effectively regulate multi-national economic enterprises or relationships. One question arises whether these supranational institutions are adequately in accord with systems of democratic accountability presupposed by the rule of law. Some of these institutions appear to rest on notions of judicial independence drawn from national constitutional experience, and thus of questionable applicability in the international context. Other institutions are subject to the control of international organizations where the allocation of power is itself at variance with democratic norms. Another question is whether the emergence of these supranational institutions undermine the capacity of national institutions, both in transitions and in the context of addressing deeply rooted domestic conflicts, to evolve on their own and to give local content to the rule of law.
Sunday, June 11:
- Robert Burt
- Enrique Felices
- Ulises Schmill
- Jorge Seall Sasiain
- Robert Burt
In confronting crises such as war, sustained terrorist attacks or severe economic dislocations, demands arise for extraordinary measures, such as officially inflicted torture, suspension of habeas corpus, internment of citizens, or closing legislative or judicial institutions. Although many people presuppose that the primacy of law is an invariable value, practice sometimes contradicts this presupposition and the question thus must be asked whether these practices should absolutely be forbidden or whether observance of these stringent ideals in such crisis situations might undermine the ultimate goal of vindicating the rule of law. One supposed technique for maintaining the primacy of law is to establish legally recognized exceptions for effective response to crisis situations. Is this apparent accommodation a misguided and even dangerous approach? Can the law effectively circumscribe the extraordinary authority or impose subsequent accountability on those who undertake such extreme measures? Does any attempt to legitimize these measures through the law itself ultimately subvert the rule of law?
