Mohamed Camara (#5: The Rule of Law)

(Columbia Law School)

The idea of rule of law has long historical roots and has inspired many important debates that remain relevant in light of our time. Despite the competing views of the idea, there are points of convergence that exist even between natural law theorists like Lon Fuller and legal positivists like Joseph Raz, who taught here at Columbia. Among these points are the ideals that the law be general, prospective, stable, and equally applied. This view of rule of law, sometimes called the “procedural rule of law”, is not confined to any single political philosophy or geographical location. Rather, it helps make real the principle that the law should serve as a guiding force in society, allowing individuals to shape their lives in ways that help them make sense of the state’s coercive power. What is happening, both in the United States and abroad, are breakdowns in the values that make law a meaningful and consistent framework.

My understanding of this issue is informed by my work in vulnerable communities here and abroad. During my time with the Institute for Human Rights and Development in Africa, I worked with activists, lawyers and community organizers, to investigate and litigate cases of human rights violations before the human rights division of the Economic Community of West African States Court and the African Court on Human and Peoples’ Rights.

In Harlem, I work with the African immigrant community to navigate the United States’ complicated immigration system. Before law school, I worked with incarcerated individuals in both state and federal correctional institutions around New York State. I bring that perspective to this discussion because when there are breakdowns in the rule of law, these marginalized groups often bear the brunt, at least initially.

We are experiencing the executive branch’s subversion of rule of law and the havoc it is wreaking on the undocumented members of our communities. But the breakdown extends beyond the executive branch. In fact, one of the great ironies of our time is that we are now running to the Supreme Court for refuge from executive overreach, when the Court itself seems to lack any meaningful guardrails on its own powers. The Court is overtly political, which is antithetical to our constitutional imaginations of an independent judiciary, and is relentless in its endeavours to roll back on vital institutions that have protected vulnerable groups for generations.

Similar trends can be found in Europe. Recently, I was at the University of Hamburg, in Germany, conducting a comparative research on the United States’ and European Union’s immigration policies. The European Commissions seems to be content to pull inspiration from America’s controversial approach to immigration. The Parliament is considering the New Pact on Migration and Asylum which aims to, among other things, streamline the longstanding Dublin System that allocates immigration responsibilities among E.U. member states. Yet, many human rights lawyers in Europe are deeply concerned that the new framework may further restrict, rather than expand, the rights of migrants.

In Africa, where I was born and where my recent publication—Jurisdictional Restrain: Rescuing the African Court on Human and Peoples’ Rights—we find similar problems.

While I approach these issues from the perspective of marginalized communities, it is also clear that the erosion of the rule of law affects all of us. Universities, including Columbia and Harvard, are being challenged in ways that would have been unimaginable not long ago. Powerful law firms are not exempt. So, this is a problem with wide-ranging effects, one that demands collective thought and collective action.

Which leads us to the question: what can be done? Context matters, of course, but forums like this, where we diagnose and discuss the problem, are crucial. They may not solve everything, but they create awareness. Action through legislation matters too. Senators, for example, hold their offices for six-year terms. That tenure should embolden them to take actions that members of congress may not take out of fear of political retribution from an unruly president. And citizens’ actions—their participation in elections and protests—matter a great deal. The protection of rule of law requires all of us: those who enforce the law and those upon whom the law is enforced.

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