Democracy and the Rule of Law

Ambassador Robertson shakes the hand of Maribor's Law School Dean Šime Ivanjko	Ambassador Robertson sits alongside Maribor Law School Assistant Professor Jurij Toplak as he takes questions from students

Speech at the University of Maribor Law School
Tuesday, December 20, 2005

It is always a pleasure to come to Štajerska, and I'm delighted to have the chance to talk to you today about a very important topic, Democracy and the Rule of Law.

I know, I know:  this is a big subject.  We could spend all day discussing it.  But I will try to limit it to some key concepts, and hope to keep it simple and focused.
 
As future lawyers, prosecutors, judges, and legal scholars, you represent the future of Slovenian democracy.  There is no more central foundation to democracy than the rule of law.  Yet the importance of the rule of law is sometimes overlooked and underestimated.  You can't televise the rule of law.  It's almost impossible to quantify.  It’s hard to define in some cultures, and it often has an illusory character.  But the rule of law is critical for the functioning of democracy, for economic development, for the sanctity of minority rights, and for the expression of individual freedom.  Cicero captured it well when he said: "We are in bondage to the law so that we might be free."

The "rule of law" has several different elements.  First, the rule of law is a regulator of government power.  Second, the rule of law means equality before the law.  Third, the rule of law means procedural and formal justice.

As a regulator of government power, the rule of law endows citizens with civil and political rights.  In 1215 at Runnymede, England's barons forced the king to abide by the laws of the land and to respect their rights, thereby formally inaugurating the rule of law with the Magna Carta.  In 1789, the American colonies made the limitation of government authority explicit in the American Constitution.  And in the 1970s, Western nations codified democratic standards of behavior for regimes around the world.  The Magna Carta, the American Constitution, and the Helsinki Final Act are all expressions of the democratic rule of law.

The second aspect of the rule of law is the concept of equality.  All must be equal before the law.  Neither rank nor race nor religion nor political affiliation should have any influence on the administration of justice. 

Finally, the rule of law means procedural and formal justice.  John Adams, the second President of the United States, phrased this well when he said: "The law, in all vicissitudes of government…will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men…On the one hand it is inexorable [unyielding] to the cries of prisoners; on the other it is deaf, deaf as an adder to the clamours of the populace."

The rule of law is based on a principle that goes beyond the actual legislation governing a particular country.  Excellent laws can be written, but if they aren't enforced they are meaningless.  (Look at the famous Stalin constitution of 1936!)  At the same time, there is no legal system in the world that relies exclusively on the courts and law enforcement bodies to make its citizens comply with the law.  The legitimacy of the legal system is what makes the rule of law take root, and what makes most of us law-abiding citizens.  This legitimacy is inextricably bound up with the legitimacy of government.  That is why democracy and the rule of law go together.  Democratic government legitimates the rule of law, and the rule of law makes democracy possible.

The Rule of Law in Slovenia
As Slovenia prepares to celebrate the fourteenth anniversary of its independence, the country can look back with pride at the progress it has made in strengthening the rule of law and consolidating democratic institutions.

Under the socialist system, both in Yugoslavia and elsewhere, the state and the party were all-powerful.  Laws were put in the service of the party-state.  Individual rights may have been enshrined in the constitution, but there were only very limited means of enforcement.  Judges were under the control of the party and were subservient to prosecutors or Ministry of Justice officials.  The law and the justice system were tools of the state, used to advance state power and control the citizenry.  This led, understandably, to cynicism about the very idea of the “rule of law.”

Today, in democratic Slovenia, the independence of the judiciary has been strengthened and the rule of law is more firmly grounded in democratic institutions.  But as you know better than anyone, laws are not static.  Societies change and develop, and laws need to be continuously adapted to the changing needs of society.  Those of you in this room today will be writing, interpreting and amending Slovenia's laws for the needs of the 21st century.  You have a big challenge in front of you.  But it's an exciting one.

Threats to the Rule of Law
For the rule of law to take root, people need to believe that justice is being served.  If people are cynical about the application of the law, they become less inclined to comply with the law themselves.  That means corruption, government abuse, and fraud need to be dealt with swiftly and firmly.  Fighting corruption isn't easy, but it is crucial to building confidence in the rule of law. 

Countries that suffer from corruption, cronyism, economic mismanagement, and political instability have a weak rule of law.  Laws are the only mechanism that a society has to punish crime, protect private property, enforce contracts, and maintain reforms. Under a strong rule of law, people feel that their personal liberty and the fruits of their labor will be protected.

This sense of "safety" is the basis of sustained economic activity because people and businesses will work, save, and invest when they have a guarantee that their property, their investments, and the fruits of their labor will not be taken from them. In contrast, under a weak rule of law, there are no guarantees that any effort by citizens will be respected, nor are there limits to government abuses, bribery, special interests, and general corruption.

Building an independent judiciary is crucial to fighting corruption and strengthening the rule of law.  During the socialist era, judges were generally appointed with the approval of the Party. Once in office, their activities were overseen by the Ministry of Justice, which had budgetary and disciplinary control over judges.  Judicial decisions were sometimes dictated by the party leadership and could be overturned by the State Prosecutor.  Judges were not independent.

It is heartening to see that the Slovenian judiciary is increasingly taking control of the courts, playing a dominant role in disciplining its own members and ensuring that those who are appointed to judgeships are appropriately qualified.  Judges are among the most highly esteemed members of American society, and they should be held to a similar degree of esteem in Slovenia as well.

However, judges need to earn this esteem.  This means that the efficiency of the judicial system needs to be improved, both here in Slovenia as well as in the United States.  Judicial backlogs urgently need to be addressed, because justice that isn't speedy isn't fair.  Think of a child involved in a custody dispute or a situation involving child abuse.  If the judiciary isn't able to adjudicate such cases quickly, the damage done to the child may be irreversible.  Similarly, if the system is too slow, Holocaust survivors waiting for restitution of their property may not be around for justice to be served.  It is vital that new ways be found to ensure that justice is served as quickly and as efficiently as possible.

The Rule of Law and Economic Development
Market economies require the rule of law. A society without state protection of individual rights, especially the right to own property, would not build private long-term assets, a key ingredient of a growing economy. Yet an excess of rules -- and in the extreme case, socialist central planning -- has also been shown to stifle innovation and produce economic stagnation.
 
A tension has always existed between a desired continuity in the laws and regulations governing trade and business practices, and the necessary updating that is required to keep pace with a growing and, hence, changing economy. Uncertainties that stem from the arbitrary enforcement of the body of prevailing rules are reflected in higher risk and cost of capital, which, in turn, inhibit economic growth.

Implementing an effective rule of law, however, has its own difficulties. One key component, the law of contracts, governs the resolution of disputes between parties. Yet if adjudication were requested for more than a very small fraction of contracts, the court system would be swamped into immobility and the performance of the economy would suffer. Thus, if the market system is to function smoothly, the vast majority of trades must rest on mutual trust, and hence only indirectly on the law.
 
A more general concern is that laws can never be fixed in perpetuity. As societies and economies evolve, the details of the law, though generally not its fundamental principles, need to change. But any uncertainty about the clarity and fixity of the law adds to the risk of trade, which is reflected in a higher real cost of capital.

We in the United States tried to lessen legal uncertainty by embedding our most fundamental principles in the constitution, which we made difficult to amend.  The commercially and economically salient specifics are expressed in our federal or state statutes.  In general, this arrangement has provided us with a healthy balance of continuity and predictability and yet with the requisite flexibility to respond to evolving economic and societal circumstances.

Let me say a word about the importance of property rights for economic development.  If you look at the history of Slovenia, and indeed of Europe as a whole, over time you find that state sovereignty is extremely unstable.  Slovenes have changed rulers numerous times in the last hundred years.  Some older folks may have passports from as many as four different countries.  First the Austrian empire, then the Kingdom of Yugoslavia, then socialist Yugoslavia, and now, finally, an independent Slovenia.  In places like Primorska and Prekmurje, borders have been constantly shifting to and fro.  Very unstable.

But yet, if you look at Slovenia more closely, at the "micro level," you will find that gospod PetriÄ? still lives in the same place he always did, and gospod KavÄ?iÄ? is still living in the same place he always did.  Property rights are the result of a grassroots contract, and they stick even when sovereignty fragments.  As the economist Hernando de Soto has argued persuasively in The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, the way to promote economic growth -- indeed, the only way to promote economic growth -- is to establish an infrastructure that protects these legal property rights.

Slovenia is on solid ground in this regard, but more needs to be done in the region if economic development is to continue.  If one looks beyond Slovenia to the other parts of Southeastern Europe, one finds property rights severely lacking.  In Kosovo, for example, one of the biggest impediments to economic development is the absence of clearly specified property rights. 

Reigning in corruption and organized crime is also crucial for the economic development of the region.  Many of the countries in this region look to Slovenia as a natural role model, precisely because of its high level of economic and political development.  You should be prepared to assist your neighbors to the east and south further develop their own rule of law, because that will spur economic development and contribute to political stability throughout the region. 

Regional seminars like the one on bankruptcy law organized in cooperation with the Slovenian Supreme Court and the Slovenian Association of Judges can help share best practices in the field of property rights.  Twenty judges from Bosnia and Herzegovina attended the seminar which featured two American judges sponsored by the U.S. Embassy.

We at the American Embassy have also recently begun to provide prosecutor training to share U.S. experience in fighting economic crime.  We have worked closely with the Ljubljana District Court to share our best practices in the field of Alternative Dispute Resolution and provide support when Slovenia hosted the first meeting of the International Association for Court Administration in 2004, bringing law clerks together to discuss the role of clerks in increasing judicial efficiency and providing speedier justice. 

We urge you to also share your experiences and best practices as widely as possible.  Bankruptcy law, tax law, securities law: these are all growth areas for promising young lawyers like yourselves. 

Law Enforcement
In speaking about the rule of law, one must never forget about the other side of the coin: law enforcement.  As the American president James Madison famously said, "if men were angels, no government would be necessary."  We unfortunately live in a dangerous day and age, when terrorists, organized criminals, and white-collar criminals are capable of exacting very high costs on our societies.  To fight against these groups, effective law enforcement and prosecution are necessary.

Slovenia's new State Prosecutor, Mme Brezigar, has made the fight against white-collar crime a priority.  It must remain so.  And so must the fight against organized criminals, traffickers in human beings, and terrorists.  In this fight, it is absolutely critical that various government agencies work together to make law enforcement more effective.  Customs, police, prosecutors, border guards, and intelligence services must share information about criminals if they are to have any chance of capturing and prosecuting them.

In the U.S., we learned this lesson the hard way.  After 9/11, it became apparent that our FBI and CIA and Drug Enforcement and Firearms agencies weren't working together and sharing information as well as they should have been.  We've now made some changes to the system to make sure that "stovepiping" of information between different government agencies doesn't occur.  In your future roles as judges and prosecutors, it will be vital for you to break down these inter-ministerial barriers and promote collaboration between law enforcement agencies.

I'm happy to say that the United States recently supported the election of a Slovenian, Mitja MoÄ?nik, as the director of the Southeast European Cooperation Initiative--or SECI Center for Fighting Organized Crime.  It's great to see that law enforcement cooperation in the area of border security, export control, combating trafficking in persons, organized crime, and counter-proliferation is a top priority for the Slovenian government.  I hope that as you advance in your legal careers, you will always remember that your success in the law will depend on your ability to work closely with those who may not be lawyers, but whose cooperation—be they police officers, diplomats, customs officials, social workers, or your everyday citizen, the man on the street—will help your do your job better.
 
Before I close, let me say how envious I am of all of you sitting in this room.  You are about to embark on a journey that is really quite remarkable.  Despite all the lawyer jokes that I'm sure you've heard before -- how many lawyers does it take to change a lightbulb? (Answer: how many can you afford?) -- the legal profession is one of the most rewarding because it brings you into contact with so many different facets of society.

Allow me in closing to quote from the great American Supreme Court Justice Oliver Wendell Holmes, who spoke about the legal profession in the following terms:
"What a profession it is!  No doubt everything is interesting when it is understood and seen in its connection with the rest of things. Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one soul? In what other does one plunge so deep in the stream of life—to share its passions, its battles, its despair, its triumphs, both as witness and actor?

"When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be wooed with sustained and lonely passion—only to be won by straining all the faculties by which man is likest to a god."
As I said at the beginning, you are the future of Slovenian and European justice and the rule of law.  As you prepare to enter your careers, do not let cynicism about the shortcomings of justice in your society—or in mine—weaken your passion or your energy to see justice done.  You must turn your back on that cynicism, use your own moral compass and your passion for the rule of law to make this world a better place than the one my generation will pass on to you.

Thank you very much for attention, and good luck to all of you.