THE RULE OF LAW
POSTED BY HOWARD S. FREDMAN, ESQ. || 19-JUL-2016
Most lawyers join bar associations for networking, community service and professional development. I joined the Century City Bar Association for a different reason. I had lost an important case and believed the law was unfair as written. I was upset. I knew that California was more focused on statutes than judge-made law and that the BHBA was very active in law reform through the Conference of California Bar Associations.
The BHBA even had its own lobbyist and made an annual pilgrimage to the Legislature in Sacramento to support a particular law reform proposal. So I joined the Resolutions Committee, attended a Conference and was hooked.
I became part of BHBA’s commitment to advocacy and to making the law better, more fair. The pursuit of justice.
The Century City Bar Association was founded in 1931 by 22 lawyers on the Westside of Los Angeles, who were looking for an alternative to our large County bar association which, at the time, excluded Jews, Blacks and women, among others.
From its very beginning, the BHBA was about inclusion, rather than exclusion. And it was also about advocacy: righting wrongs, making our society more just.
The Vision of the BHBA was and is “A world in which there is justice for everyone.” Its Mission includes advocating “for justice in our community.” And our Goals include educating the “public about the legal system,” facilitating “access to legal services,” and improving “the justice system.” The Rule of Law is at the core of that Vision, Mission and Goals. That includes stomaching adverse rulings and working to change laws by advocacy within the political system.
Mr. Justice Breyer knows a great deal about stomaching bad decisions: he wrote the main dissenting opinion in Bush v. Gore in December 2000. Twelve years later, during a visit to China, he was asked, “What if judges make wrong decisions?” He responded, “Five justices voted for Bush. I voted for Gore. The decision was not popular – at least half of the population was against it. The decision itself may be wrong, at least I personally believe so. Nonetheless the decision was enforced.”
When students suggested that the legal process should have been ignored, he responded “Absolutely not.” He explained: “The Rule of Law does not guarantee that everything will be all right. But it helps to organize people, prevent tyranny, advocate prosperity, human rights and democracy” and also “encourages people to take control of their own lives.” He contrasted countries which don’t believe in the Rule of Law, states rife with revolution, repression or both, states that foster violence rather than law.
The Rule of Law is too precious to ignore. As lawyers we should be committed to battling injustice—but through the law.
So what is the Rule of Law? The World Justice Project boiled that down to four principles, which include constraints on government power, absence of corruption, fundamental rights:
- The government, individuals and private entities are accountable under the law.
- The laws are clear, publicized, stable, and just, applied evenly and protect fundamental rights, including the security of persons and property.
- The process of enacting, administering and enforcing law is accessible, fair and efficient.
- Justice is delivered by competent, ethical and independent representatives and neutrals who are sufficient in number, have adequate resources and reflect the communities they serve.
Our concept of the Rule of Law is a great deal older than Magna Carta and 1215. In Exodus it states: “You shall neither side with the mighty to do wrong …nor shall you show deference to a poor man in his dispute.” (Exod. 23:2-3.) “Do not take bribes, for bribes blind the clear-sighted and upset the pleas of those who are in the right.” (Exod. 23:8.)
Later in the Bible, Moses charged the judges he had deputized: “Hear the disputes between your people and judge fairly, whether the case is between two Israelites or between an Israelite and a foreigner residing among you. Do not show partiality in judging; hear both small and great alike. Do not be afraid of anyone, for judgment belongs to God.” (Deut. 1:16-17.) He gave priority to the administration of justice, which he memorably summarized: “Justice, justice, shall you pursue.” (Deut. 16:20.)
That’s what the BHBA is about and what I propose to strengthen and continue. The BHBA promotes access to justice by staffing – through its Barristers – the Roxbury Park Free Legal Clinic and Teen Court, its primary activity this year.
Linda Spiegel, my predecessor, launched a modest means legal program to match an under-served public that is unable to pay high hourly rates with under-employed young lawyers, and a pilot mediation service which will again provide three hours of free mediation to litigants for a modest administrative fee.
The BHBA advocates for legal reform in the Conference and lobbies for legal change in Sacramento and with the Open Courts Coalition.
We are not limited to domestic concerns: BHBA Barristers are developing a program regarding Lawyers at Risk in China – the persecution of 250 human rights defense lawyers who were rounded up in China this summer.
In the recent past, BHBA’s amicus briefs have advocated for Marriage Equality in the California Supreme Court, and for attorney’s fees for lawyers who volunteer to pursue public benefit issues in the courts. The issues all relate to making our system more fair and accessible.
So, as Yogi Berra said, “When you come to a fork in the road, take it.” The BHBA knows which fork to choose and will continue to take the path forward. Yogi Berra also said, “If the world were perfect, it wouldn’t be.” So we must expect the unexpected, because the world has its shortcomings. And as Yogi also said: “Take it with a grain of salt.”