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Stephan A. Schwartz

Stephan A. Schwartz

Posted: November 2, 2010 02:11 PM

It was Benjamin Franklin's view that where justice was absent, civil society was impossible. He and the other Founders agreed on the essential importance of justice in a democracy. I feel the same way, and you probably do as well. If you do you will probably be as appalled as I was when I read the World of Justice Project report: Rule of Law Index 2010.

I will not deny that it has left me shaken.

To understand why I think this report is such a big deal, perhaps it will help to say who funded it: The Bill and Melinda Gates Foundation, The Neukom Family Foundation, the GE Foundation, The Ewing Marion Kauffman Foundation, and Lexis Nexis. I list them to make the point that this is the pinnacle of non-partisan philanthropy, not some political think tank with an agenda. We can trust the data.

The project, involving 900 researchers from 35 countries, who have polled 35,000 individuals, in addition to searching each nation's records, presents itself in a way that Benjamin Franklin would have understood and endorsed.

Establishing the rule of law is fundamental to achieving communities of opportunity and equity -- communities that offer sustainable economic development, accountable government, and respect for fundamental rights.... The rule of law is the cornerstone to improving public health, safeguarding participation, ensuring security, and fighting poverty.

When the World Justice Project talks about the rule of law they spell out very carefully what they mean. They refer to "a rules-based system in which the following four universal principles are upheld:

  • The government and its officials and agents are accountable under the law;
  • The laws are clear, publicized, stable, and fair, and protect fundamental rights,
  • including the security of persons and property;
  • The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;
  • Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

With this as the basis for its analysis the Rule of Law Index then lists what it calls the 10 "factors" which break down further into 49 "subfactors." These descriptors are the basis upon which Index evaluates a nation's justice under the rule of law. The outcome of this exercise is a quite extraordinary assessment "of the extent to which countries adhere to the rule of law -- not in theory but in practice." Here are the 10 factors; they all sound very much attuned to the myth we tell ourselves about "America."

  1. Limited government powers
  2. Absence of corruption
  3. Clear, publicized and stable laws
  4. Order and security
  5. Fundamental rights
  6. Open government
  7. Regulatory enforcement
  8. Access to civil justice
  9. Effective criminal justice
  10. Informal justice

As I started reading the report I assumed that whatever other self inflicted wounds we have brought to ourselves as a nation, our justice system was still solid, and that the U.S. would rank at the top of the world's list. Surprise. The WJP groups countries by regions as well as such considerations as income level. Then evaluates them, dropping Factor 10 -- Informal Justice -- because it is does not involve law. Not surprisingly the U.S. is grouped with North America and Western Europe, and there are seven nations in our bloc: Austria, Canada, France, Netherlands, Spain, Sweden and USA. These are the nations where the survey was carried out for the 2010 report, with other countries to follow in later reports. Here is how the results fell out:

2010-11-02-9FactorAnalysis.jpg


For the U.S. it is a death's head portrait of the reality that lies beneath the smug rhetoric we use to hector others about justice and the rule of law. I am embarrassed. We all should be. This has haunted me since I read the report. If America is not a leader in justice, what are we? I could pick a dozen other trends, from closing libraries, to depaving streets, to decline in educational performance, to add to this portrait of America today, but do we need to go further? If America were a patient, what would you tell him about his lifestyle and habits? What would you see as his prognosis?

On the basis of data it is impossible to say America's societal health is good. On the basis of that same data I believe it is reasonable to conclude that policies based on cutting taxes without recognizing that it is in the societal interest to assure a decent quality of life for all, are destructive. We know enough to see that democracy cannot function properly without a healthy and vibrant middle class, and to prove to ourselves we are killing ours. We need to change course not on the basis of political ideology, but on facts. Facts about what does and does not work.

And we must recognize that the middle class holds the key to our national success, just as Franklin saw all those years ago. The middle class has enough money to dream, but rarely enough to do it alone. Success requires working together, finding compromises. And that's what most of us say we want. According to research by Michael I. Norton of Harvard Business School and Dan Ariely of Duke University, 92 percent of Americans would choose to live in a society with far less income disparity than the US, choosing Sweden's model over that of the US. The America Benjamin Franklin imagined sitting beneath his Mulberry tree in the courtyard of his house in Philadelphia over two centuries ago.

 

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