The legal profession has long embraced the view that lawyers have an obligation to uphold the rule of law. Upon close examination, however, it seems clear that lawyers are not expected to do much to promote it. If we take the bar’s pronouncements seriously, we see that, for the most part, so long as lawyers zealously protect and pursue their clients’ interests within the bounds of the law, they are in fact fully discharging their obligation to uphold the rule of law. This Article argues that this conventional view—that mere compliance with formal legality satisfies the lawyer’s duty to uphold the rule of law—is problematic. First, this view makes the duty to uphold the rule of law superfluous, because lawyers are already obligated under the ethical rules not to violate the law. Second, this view assumes—almost as an empirical matter—that compliance with the positive law is sufficient to maintain a society that lives under the rule of law. Yet, a growing body of scholarship on “legalistic autocracies” casts doubts on that assumption. What these legalistic autocracies seem to demonstrate is that it may be possible to observe formal legality without the rule of law.
This Article offers a wider, alternative account of the lawyer’s rule-of-law obligations that better comports with our strong, albeit vague, intuition that the rule of law demands far more than bare compliance with legal norms and is far more complex than what is conventionally assumed. This alternative view is grounded in the realization that “the rule of law” is a teleological notion—in other words, to be understood in terms of its point: we seek the rule of law for purposes; we enjoy it for reasons. Because of the inherent teleological character of the rule of law, no check-the-box criterion—such as compliance with formal legality—will guarantee the valued state of affairs in which law actually rules. This Article argues that the substantive value, or telos, that lies at the heart of the rule of law is the restraint of the arbitrary exercise of power, a concept that comes from the republican intellectual tradition. By taking this substantive value seriously and constructing a thicker, more substantive understanding of the rule of law around this value, we better appreciate the myriad ways in which our society falls short of that ideal, and we can better see why and how the conventional view of the lawyer’s duty to uphold the law, grounded in legalism, falls short of respecting and nurturing the rule of law.
* Professor of Law, UCLA School of Law. The author welcomes comments sent to: sung.kim@law.ucla.edu. The author is indebted to the following readers for helpful comments and conversations during the early stages of this project: Sameer Ashar, Asli Bȃli, Ann Carlson, Moeen Cheema, Evan Criddle, Scott Cummings, Deborah Demott, Evan Fox-Decent, Diana de Wolff, Bryant Garth, Stephen Galoob, Andrew Gold, Laura Gómez, Robert Gordon, William Henderson, Renee Knake Jefferson, Peter Joy, Jerry Kang, Christopher Kumpan, Thilo Kuntz, Máximo Langer, Carrie Menkel-Meadow, Paul Miller, Melissa Mortazavi, Stephen Munzer, Christine Parker, Russell Pearce, Teddy Rave, Richard Re, Emily Scivoletti, Hilary Sommerlad, Brian Tamanaha, Andrew Tuch, Iris van Domselaar, Julian Velasco, Brad Wendel, Noah Zatz, the participants of the UCLA Faculty Re-treat (2015), the Symposium on Legal Ethics and Corporate Lawyers sponsored by the Free University of Amsterdam and the Amsterdam Centre on the Legal Professions of the University of Amsterdam (2017), the International Legal Ethics Conference VIII at Melbourne Law School (2018), the Seventh Annual Fiduciary Law Workshop at Rutgers Law School (2019), and the Legal Ethics Schmooze at UC Irvine School of Law (2019). Excellent research assistance was provided by Mariah Lohse, J.D. class of 2019; Chaliz Taghdis, J.D. class of 2021; Margaret West, J.D. class of 2021; Iryna Lopushen-ko, LL.M. class of 2022; and the world class librarians of the UCLA Hugh & Hazel Darling Law Library. This Article is dedicated to Professor John T. Juricek, professor of history emeritus, Emory University.
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