Measuring the Rule of Law
Statement delivered by James Herman, President of the State Bar of California,
October 24, 2002

At the Nuclear Age Peace Foundation Symposium International Law and the Quest for Security held at the University of California at Santa Barbara

I am honored to speak to a this group of activists dedicated not to peace in theory but peace in practice. I congratulate David Krieger on the good work of the Nuclear Age Peace Foundation. As a 1971 graduate of this University, it is ironic I stand here more than thirty years after that time of turmoil to address a new generation studying old problems.

Benjamin Franklin has said “They that can give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” This was brought into special focus during a Peace Foundation gathering my wife, Judge Denise deBellefeuille, and I hosted shortly after the September 11 tragedy last year.

I am a lawyer. The lawyers of the world are dedicated to the peaceful resolution of disputes between citizens and disputes between governments.

I have dedicated my career to the rule of law. I have been to the Hague as a civil trial lawyer practicing under the Hague convention. I was a fellow of the New York University Law School’s Criminal Law Education and Research Center affiliated with the United Nations Crime Prevention Section. When I hear of the International Criminal Court, I know we are substituting law fare for warfare. Our work will be completed not only when weapons are beaten in to plowshares but when battlefields are converted to courtrooms.

I recently—along with my wife, Judge deBellefuille who is a strong supporter of our organization—led a group of lawyers to the Peoples Republic of China. Although known for its human rights abuses, I was gratified that the Chinese Legal Profession is hungry for the rule of law. I was gratified that the government of China has opened over 2500 legal aid offices throughout the country. I was gratified the Women’s Legal Center at Beijing University is doing impact litigation throughout China on women’s and children’s legal issues. I was gratified when a Chinese lawyer said that perhaps China needed fewer party secretaries and more lawyers.

This reminds me of the often repeated but misunderstood line from Henry the VI, part 2, “First thing we do, let’s kill all the lawyers.” Many people, many lawyers think Shakespeare was being anti-lawyer. The context of this line is much different, however. Jack Cade, a would-be revolutionary is plotting to overthrow the government and is looking for suggestions from his gang. Dick the Butcher, recognizing the importance of the rule of law to social stability, responds, “First thing we do, let’s kill all the lawyers.”

Although there are those who say California could use more party secretaries and fewer lawyers, I say trial by jury is a far superior social safety valve than trial by combat. The rule of law is the original alternative dispute resolution.

I was unhappy when the Presidential election was decided by the Supreme Court rather than the voters. But I have realized since that the Supreme Court’s decision was a triumph of the rule of law. Although there was both grumbling and celebration over the decision, there was no violent coup, there was no overthrow of the government by the politically disappointed. There was respect for the rule of law. And as the leader of 186,000 lawyers in this state, I am proud of the role lawyers play in making this a country ruled by law rather than by force.

But I am concerned when we exchange liberty for safety. I am concerned when we deny basic due process to the least among us, to those whom we dehumanize and label as “the other.” I am concerned when we ignore international tribunals in favor of unilateral force. Beware when any government seeks to diminish the role of lawyers in any tribunal because that signals efficiency, not justice.

Child advocate Marian Wright Edelman has written, “the future which we hold in trust for our own children will be shaped by our fairness to other people’s children.” Our fairness to other people’s children. This, above all else, is the measure of the rule of law.