Georgia Bar Journal
February 2021, Vol. 26, No. 4
The Oxford English Dictionary defines the rule of law as “(t)he authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”
The rule of law provides the boundaries within which we all can legally act or behave. It offers consistency, reliability, fairness, equity and protections for every citizen. It protects those seeking to enjoy certain rights against those who attempt to violate laws or the rights of another. It is simultaneously the foundation upon which we build our laws and regulations and the umbrella under which we stand against those who would rain on our rights without fear of consequences, consequences equally and justly applied to all. The rule of law defines how individual citizens should conduct themselves and how society should conduct its business, to both promote and safeguard freedom.
As presented during the March 5, 2008, University of Georgia School of Law Sibley Lecture Series:
“[The Rule of Law] is one of a cluster of ideals constitutive of modern political morality, the others being human rights, democracy, and perhaps also the principles of free market economy. Open any newspaper and you will see the Rule of Law cited and deployed—usually as a matter of reproach, occasionally as an affirmative aspiration, and almost always as a benchmark of political legitimacy.1
“The rule of law ... is not merely rule by law,” John Patrick writes in Understanding Democracy, A Hip Pocket Guide. “(R)ather, it demands equal justice for each person under the authority of a constitutional government. So, the rule of law exists in a democracy or any other kind of political system only when the following standards are met:
Patrick adds, “There is a traditional saying about the rule of law in government: ‘It is a government of laws and not of men and women.’ When the rule of law prevails in a democracy, there is equal justice and ordered liberty in the lives of the people. In this case, there is an authentic constitutional democracy. When rule of law does not prevail, there is some form of despotism in which power is wielded arbitrarily by a single person or party.”
History is rich with examples of the rule of law being used to shore up the pillars of human rights and equal justice. On the global stage, according to Susan Xu Monday, writing for Immerse Education, the post-World War II Nuremberg Trials “marked a key point in the development of a specific international jurisprudence for war crimes, crimes against humanity and crimes of aggression.” In South Africa, the establishment of a Truth and Reconciliation Commission (TRC) was critical to addressing post-Apartheid concerns and moving the nation towards reconciliation. More specifically, efforts to reconcile post-Apartheid through TRC focused on building a society founded upon justice, equality and respect for the rule of law.
Closer to home, for more than two centuries, American society has been governed under one fundamental set of laws: the U.S. Constitution. Our judiciary has the duty to interpret the Constitution and to find whether subsequent laws are in conflict with the Constitution. Laws enacted by simple majorities of the U.S. Congress or state legislatures cannot restrain the constitutional liberties granted by the Bill of Rights or eradicate the basic principles of equal justice and due process of law.
As U.S. Supreme Court Associate Justice Ruth Bader Ginsburg once said, “A Constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom.” Similarly, as opined by Associate Justice Sonia Sotomayor, “I firmly believe in the rule of law as the foundation for all of our basic rights.”
There are multiple components to the rule of law in Georgia, including constitutional, regulatory, statutory and case law. The Official Code of Georgia Annotated contains the general statutory law of the state. Administrative Law consists largely of state regulations. The Constitution of the state of Georgia, most recently ratified in November of 1982, is the latest of 10 constitutions. The first was completed in 1777 to assist in the transition from colony to state.2 Georgia was the fourth state to ratify the U.S. Constitution, accomplished through a constitutional convention.3
With each subsequent version of the Constitution of the state of Georgia, powers of the executive, judicial and legislative branches developed and shifted, with the Legislature serving as the dominant branch of government for a time.4 However, in 1835, an amendment to the 1798 Constitution of the state of Georgia laid the foundation for a state Supreme Court, which would ultimately be established in 1845. Prior to this amendment, local courts worked with no formal oversight or system of review.5
The Georgia Secession of 1861 was the “pinnacle of the state’s political sovereignty.”6 The convention met in Milledgeville from January through March in 1861 and, during that time, voted to secede Georgia from the Union and create a new Constitution of the state of Georgia.7 The next month, the Civil War began with a battle at Fort Sumter, South Carolina.
During the Civil War, which occurred from 1861-65, and Reconstruction that followed, four new constitutions were written for the state of Georgia. The Constitution of 1945, the creation of which was prompted by the University of Georgia’s Institute of Public Affairs publication in 1931 titled “A Proposed Constitution for Georgia,” included a merit system for state employees, a prison board, establishment of the office of lieutenant governor and authorization of jury service for women, among other changes.8
Following the ratification of the 1976 Constitution, the General Assembly created the Select Committee on Constitutional Revision in 1977. The goal of the committee was to make it more succinct, clear and flexible.9 Through these efforts, including leadership support from all three branches of government, a vast majority of Georgia voters approved what became the Constitution of 1983. The Constitution of 1983 divided the courts into seven distinct classes, required court rules to be uniform and the elections of judges to be nonpartisan, and provided an equal protection clause.10
There is notable legislative history relevant to our Bar association as well. In 1883, a small group of lawyers established the Georgia Bar Association. This new professional organization proved beneficial to its members but, since membership was not required of all Georgia lawyers, it lacked power. “Because of its nature as a voluntary association not comprised of all the lawyers in this state,” explained 1946 Georgia Bar President Charles Gowen, “the Georgia Bar Association was unable to address significant needs including uniform discipline throughout the state and the passage of important legislation.”
By 1925, a trend toward unification became evident in state bars across the country, including the Georgia Bar Association, which would struggle for conversion over the next 40 years, enlisting the aid and support of many of Georgia’s most prominent legal minds. The bill to create an integrated bar was finally passed by the Georgia House and Senate in 1963, a move motivated primarily by the concept of regulated self-discipline. “The capstone of the State Bar,” said 1964-65 Bar President Hugh M. Dorsey Jr., “is the power of self-discipline, which has been sought so long and is needed so badly. For the first time, all of us can and will be held to answer to the public for the conduct and character of our profession, and here we must not, and cannot, fail.”
The rule of law is inherent in the practice of law throughout the country and in every state, including Georgia, as applied through the same constitutional, regulatory, statutory and case law as referenced above. Further, as members of the State Bar of Georgia, we adhere to both the Lawyer’s Creed and the Aspirational Statement on Professionalism, as developed by the Chief Justice’s Commission on Professionalism in 1990 and incorporated into our rules and regulations by order of the Supreme Court of Georgia.
The Lawyer’s Creed states, in part,“... To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through the representation of my clients.” In the Aspirational Statement on Professionalism, we each specifically aspire “to avoid all forms of wrongful discrimination in all of my activities including discrimination on the basis of race, religion, sex, age, handicap, veteran status or national origin. The social goals of equality and fairness will be personal goals for me.” We also aspire “to preserve and improve the law, the legal system and other dispute resolution processes as instruments for the common good.” (emphasis added)
Protecting and maintaining the rule of law is vital to the legal profession and society as a whole, during these turbulent times and well into the future. Mark A. Cohen, writing for Forbes magazine, contends that defending the rule of law is a “seminal challenge the industry must focus on … It is law’s version of climate change—an urgent, existential global threat that affects us all. The rule of law is the foundation that supports the pillars of democracy and freedom.”
Cohen notes that U.S. Chief Justice John Roberts warned in 2019, “‘we have come to take democracy for granted, and civic education has fallen by the wayside.’ He cited numerous threats including the instantaneous, pervasive spread of rumor and false information by social media, the public’s need to understand government and the protection it provides, and the importance of a strong, independent judiciary, ‘a key source of national unity and stability.’ ... The rule of law is under siege in the U.S.”
In conclusion, Cohen writes, “The entire legal ecosystem must commit to participate in a comprehensive effort to restore public confidence in the rule of law. There are no panaceas for this multi-faceted challenge. One thing is certain: the legal industry’s duty to take the lead is non-delegable. It must modernize to create impact with speed and at scale. This involves cultural transformation, utilization of technology to advance new models, a commitment to diversity, and an unwavering focus on serving the needs of clients/customers and society. Defense of the rule of law is a ‘bet the democracy’ case. The industry must marshal all its resources to achieve a favorable result. Failure to do so will cause irreparable harm because, as Chief Justice Roberts cautions, ‘we should remember that justice is not inevitable.’”
Every Georgia lawyer is required to defend the rule of law. When first admitted to practice law in the state of Georgia, by order of the Supreme Court of Georgia, we must take the following oath: “I, _______, swear that I will truly and honestly, justly and uprightly conduct myself as a member of this learned profession and in accordance with the Georgia Rules of Professional Conduct, as an attorney and counselor, and that I will support and defend the Constitution of the United States and the Constitution of the state of Georgia. So help me God.”
As members of the State Bar of Georgia, we are equally responsible for upholding the rule of law and all that it represents, including justice, equality and freedom. It is our solemn duty.
1 Jeremy Waldron, The Concept and the Rule of Law, SIBLEY LECTURE SERIES 29 (Mar. 5, 2008) <https://digitalcommons.law.uga.edu/lectures_pre_arch_lectures_sibley/29>.
2 LaVerne W. Hill and Melvin B. Hill, Georgia Constitution, NEW GEORGIA ENCYCLOPEDIA (Aug. 12, 2002) <https://www.georgiaencyclopedia.org/articles/government-politics/georgia-constitution>.
6 George Justice, Georgia Secession Convention of 1861, NEW GEORGIA ENCYCLOPEDIA (June 6, 2017) <https://www.georgiaencyclopedia.org/articles/government-politics/georgia-secession-convention-1861>.
8 LaVerne W. Hill and Melvin B. Hill, Georgia Constitution, NEW GEORGIA ENCYCLOPEDIA (Aug. 12, 2002) <https://www.georgiaencyclopedia.org/articles/government-politics/georgia-constitution>.