By Kevin Ryan, Esq.
I sometimes fear we have lost the “feel” for the rule of law in this country. Take, for instance, the dull reaction (not so much among lawyers, though it was muted enough there) to the recent mass killing of lawyers in Quetta, Pakistan. A couple of weeks ago, about sixty Pakistani lawyers were killed in a single attack. They were at a hospital emergency room, where they had gone to mourn the loss of a slain colleague (one of several individual incidents in the past few months). Then a suicide bomber blew himself up in the midst of the assembled mourners. In one afternoon, the city of Quetta lost what the Washington Post described as “an entire generation of lawyers.” That loss likely leaves Quetta, and the province of Baluchistan of which it is the capital (a province teetering on the brink of anarchy), literally lawless. The usual suspects claimed “credit” for the attack (a Taliban offshoot, the Islamic State) – these groups take great pride in asserting their responsibility for such inhumane actions, even when they had nothing to do with them. To the very limited extent to which the incident was covered by Western media, the storyline had to do with these groups (you know, “global terrorism”) not with the work being done by the dead and the consequences of their loss.
Karl Jaspers said, “Our usual condition is one of heartless unfeeling. The most frightful things can happen around us, the most hideous wrongs can be inflicted on men by men – we are seized with pity and no doubt with apprehension that such things may happen to us, but then we are caught up again in the business of existence, and in the main we forget and muffle our compassion. In regard to those who are anonymous and far away, we are not even touched by compassion.” In response to Quetta, though the State Department condemned the attack and the Clinton campaign released a brief statement, the U.S. media provided remarkably little coverage. No one (aside from a small handful of journalists) seemed to give the incident much thought, or expressed much concern over this direct attack on legal professionals – an indifference nearly as disturbing as the attack itself. It seems that American audiences are just not titillated by assaults on foreign lawyers on foreign soil. Could it be because they are Muslims? That would be appalling. Could it be because they were lawyers? Not much less appalling.
Tocqueville famously observed – in the 1830s – that the American judicial system and American lawyers served the important (indeed necessary) function of restraining the potential tyranny of the majority. Do we still live in that nation? Certainly, the public attitude toward lawyers, never particularly positive, has not improved over recent decades. And the silence that greeted the killing of the Pakistani lawyers may well reflect the general (however mistaken) view that the legal profession may be more parasite than protector. As American popular thought becomes pervaded by a kind of unrestricted populism, Dick the Butcher’s phrase (from Shakespeare’s Henry VI, Pt. II) “The first thing we do, let’s kill all the lawyers” seems more and more to reflect one portion of the public mind – when it happens, when someone somewhere kills all the lawyers, nearly no one bats an eye.
I know one person from Pakistan. His name isZafarull ah Khan and he is Executive Director of the Pakistan Institute for Parliamentary Services. I met Mr. Khan at an international civic education conference – the Asia Pacific Forum on Civic Education – held in Changwon, Korea in 2010. Mr. Khan’s outcry on Facebook immediately following the incident in Quetta spoke of being “shocked with unexplainable grief.”
I met many people like Mr. Khan at the Changwon conference, people concerned about the future of constitutional democracy in their countries, people deeply dedicated to the rule of law. It was inspiring to be among so many people who spent their lives fostering the kind of education necessary to make constitutional systems work. Many of the people I met in Changwon, like Mr. Khan, came from nations struggling with the forces of backwardness, tyranny, traditionalism, and authoritarianism, nations whose constitutional roots are not deep and whose commitment to the rule of law is tenuous. We come from a different place, an alien place. And so we can have no idea of the uneasiness, the despair, the utter horror and fear evoked by this incident in those who, like Mr. Khan, have devoted their lives to the nurture of what was exterminated in Quetta.
It is easy to praise the rule of law in the United States. It is easy because legality has deep roots in our history. It is easy because most of us don’t give it much thought, but do give it obeisance – and rattle off the words glibly. There is no one – well, nearly no one – in our society who would contend that the rule of law is not important. It is taken for granted here, much as democracy is taken for granted. These phrases slide easily off our tongues without taking up residence in our heads. But their very given-ness can be dangerous, for it means that the reality to which they (supposedly) refer can be lost while the words linger, hanging around much the way republican forms lingered on during the imperial period, when they no longer referred to anything in actual existence.
The general lack of thought about these matters is important, and perilous. As John Stuart Mill argued, people unused to having their ideas and beliefs regularly challenged and, therefore, unused to defending those ideas and beliefs with sound, rational arguments, may be ill-prepared to defend them when they are challenged. If we don’t know how to defend the rule of law, but only how to bow down before the phrase, it becomes a precarious possession. We cannot defend democracy (except in the most superficial, meaningless way) if we no longer know what democracy means, or can no longer defend the claim that it is good – let alone if we can’t make the case that we have one (it is not preposterous to claim that, if anything, we have rule in the name of the people rather than rule by the people).
Most people in the United States have heard about the rule of law, but how many have a deep understanding (or anything other than the most superficial understanding) of what it means? Probably most simply assume it must mean that we have a system of rules rather than arbitrary dictatorship – a condition better named “rule by law” rather than “rule of law,” a condition that does not distinguish us much from nations whose governmental systems we claim to dislike. We just take so much for granted. But because we never stop to think about what it is we say we believe in, what we say we proudly possess, our belief is superficial and our possession insecure.
In contrast, the people I met in Changwon must struggle every day to create a culture in which things like legality, impartial courts, and democratic structures can be attained and supported. My friend Zafarullah Khan hopes to strengthen constitutionalism, to foster the rule of law, to root democracy deep in the heart of a people. Events like those in Quetta make that task onerous indeed. And yet Mr. Khan struggles on, like his colleagues in other largely non-Western lands. He does so in the face of odds we cannot imagine, in circumstances with which we have no familiarity, within a cultural environment largely unsupportive of his efforts. If he is to achieve the rule of law (and not just rule by law), he must first begin the slow process of changing the circumstances in which he sows the idea. While we sit back and rest unthinkingly on our past achievements, he must struggle against drought and blight and pestilence. Sitting back is not an option.
There is a lesson to be learned here. Ideas can come into practice and go out of practice; they can give shape to deeds and, later, they can persist as empty forms unrelated to deeds. The ground may not yet be fertile, or it may no longer be fertile. When we turn a blind eye, when we forget and go more-or-less merrily on our way, we jeopardize our own heritage by taking it for granted. Instead of heartless indifference, we must call out that the rule of law is important, that lawyers are critical for its establishment and maintenance. And we must be able to explain why. It is a matter both of heart and mind. Can it remain in our heart if it is no longer in our mind?