Toward a Democratic Rule of Law: East and West

Article 2: The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice....Article 7: The organs of public authority shall function on the basis of, and within the limits of, the law.

- The Constitution of the Republic of Poland, April 2, 1997

Chapter 1, Article 1: The Slovak Republic is a democratic and sovereign state ruled by the law. It is bound neither to an ideology, or to a religion.

- The Constitution of Slovakia, September 1, 1991

Chapter 1, Article 1: The Czech Republic is a sovereign, unified and democratic law-observing state, based on the respect for the rights and freedoms of the individual and citizen.

- The Constitution of the Czech Republic, December 16, 1992

Preamble: We, the members of the Seventh Grand National Assembly, guided by our desire to express the will of the people of Bulgaria...hereby promulgate our resolve to create a democratic, law-governed and social state, by establishing this CONSTITUTION.

- The Constitution of Bulgaria, July 12, 1991

As these constitutional provisions suggest, the rule of law is a fundamental and prominent value for the new democracies of Eastern Europe.(1) By looking at one of the more controversial practices that these democracies have developed to establish the rule of law, the practice of lustration ( i.e., the removal or disqualification from public office of former state or party officials),(2) and the parallel between this practice and the Western practice of affirmative action, I hope to accomplish two things. After discussing why the liberal conception of the rule of law cannot countenance either of these practices, I argue for a more democratic conception of the rule of law that is compatible with certain varieties of lustration and affirmative action.

This is not an argument for either lustration or affirmative action in general, but rather an argument that both of these practices are compatible with a democratic conception of the rule of law and should not be rejected because they conflict with its liberal interpretation. On the contrary, the democratic conception of the rule of law that I want to move toward is a plausible extension of the liberal conception under certain difficult or what John Rawls calls "unfavorable circumstances."

This argument rests on two strong assumptions. First, contrary to legal positivism, a democratic conception of the rule of law should be grounded on the values of trust and inclusion as well as individual freedom and collective security. Second, the difference between transitional and consolidated democracies is one of degree, not kind.(3) I cannot fully defend such strong assumptions here, and hence the tentative title of this essay. However, if democracies are by nature in transition - breaking, repairing, and building trust among a widening circle of old and new members, then it is certainly worth considering how a conception of the rule of law appropriate to democracy, East or West, can contribute best to this common project.


I. The Rule of Law and the Problem of Corruption

The basic meaning of the concept of the rule of law is that the laws, not the will of individual persons or groups, should rule and that no one, including "organs of public authority," stands above the law.(4) To ensure that those who make and administer the laws do not use their positions for their own advantages, laws must be distinguished from other types of rules and commands that have coercive force. In formal terms, what makes some rules and commands lawful is their clarity, their generality, their consistency with one another, and their constancy over time.(5) However, these formal characteristics are not enough to distinguish laws from longstanding religious or even dictatorial proclamations that are systematically organized and couched in clear, general terms. In addition, laws also must conform to certain practical precepts.

According to Rawls, there are four such precepts that ought to govern how laws are administered and enforced. Ought implies can: laws should not impose duties that cannot be met; they should be issued in good faith and understood by those who receive them as issued in good faith; and where they are impossible to obey, this should be viewed as a legitimate defense or at least a mitigating circumstance. Similar cases should be treated similarly: laws should not discriminate on the basis of arbitrary criteria such as race, gender, or religion. No offense without a law: laws should not be applied retroactively. Fair arrest and trial: laws should be enforced according to rules of procedural due process; trials should be speedy; and privately owned property should not be confiscated arbitrarily.(6)

These formal characteristics and practical precepts are not in perfect balance. For example, the requirement that the laws be general runs counter to the need to specify certain groups for the purpose of treating similar cases similarly. Other tensions have to do with the relationship between the rule of law as a set of moral norms that citizens want to follow and the notion that the rule of law is merely a maze of sanctions around which citizens organize their strategic decisions. For example, new tax laws are unavoidably retroactive in the sense that citizens will have made certain investment decisions based upon earlier laws that they may not have made had they known what the new laws would be. The legitimacy of this form of retroactivity will depend in part on whether the tax laws are treated as moral norms similar to criminal laws or merely as economic constraints, that is, part of the cost of doing business.(7)

How these tensions are resolved depends upon the meaning of the problem that the rule of law is supposed to address. This underlying problem I will call the problem of corruption.

Political corruption in the most familiar sense refers to the self-serving and usually illegal behavior of individual political officials. Bribe taking and extortion are its most common forms, but it also includes rigging elections, various forms of fraud, and embezzlement. According to liberal political philosophers, there is another, more systemic level of political corruption that is peculiar to democracy. This is what Tocqueville and Mill called the tyranny of the majority. Majority rule tempts citizens, their elected representatives, and other government officials to violate the rights of minority citizens. To protect minority citizens from this form of political corruption, liberal theorists have developed a standard set of institutional arrangements such as the separation of powers, judicial review, and the rule of law. These arrangements, along with super-majority voting rules in some cases, are designed to limit the powers of majorities. In the case of the rule of law, this takes the form of limiting, although not prohibiting, the power of majorities to pass laws that do not apply equally to all citizens.

In contrast to this liberal understanding of political corruption, there is another more democratic way of thinking of about systemic corruption. Here the emphasis is not on the danger that majority tyranny poses to minority rights or even the danger that small, powerful minorities pose to majorities, but rather the focus is on the inhibiting effect that social and economic institutions may have on active and egalitarian political participation. If political institutions seem powerless in the face of social and economic injustices, citizens who oppose these injustices will lose interest in democratic politics and lose faith in political institutions. Where these injustices are tightly woven into the institutional fabric of the economy and society, the result is the corruption of the body politic. Slavery in the United States before the Civil War is one example of the kind of injustice that leads to political corruption in this democratic sense. Especially with the publication of the Pentagon Papers, the Vietnam War of the 1960s and '70s had a similar corrupting effect on democratic politics in the United States.

Now, back to the rule of law. To address the problem of political corruption in the liberal sense and resolve the inherent tensions in the rule of law, the liberal conception of the rule of law privileges individual private rights and personal security. On this interpretation, for example, the law is especially protective of privacy rights that are threatened by majoritarian health care policies. In the language of the courts, a doctrine of strict scrutiny should be applied when such a policy infringes upon these rights to ensure that there is a compelling need for the policy and that there is no other way to achieve the policy's objective that does not infringe on individual private rights.

The democratic interpretation of the rule of law attempts to resolve the inherent tensions in the concept of the rule of law in favor of more active participation and inclusive membership because it views the problem of corruption in a broader political sense. Without ignoring the danger that majoritarian policies pose to individual rights, the democratic conception of the rule of law views the protection of individual rights as one desideratum alongside the equally important value of advancing a more inclusive and active body politic. For example, rather than view pro-life/anti-abortion laws as infringements on the individual right to privacy, such laws would be interpreted as denials of women's equal membership in social and political life.

My thesis is that a commitment to the practical realization of the rule of law, East or West, must address political corruption in this broader sense. If the rule of law is to contribute to the growth of democratic society, than we must keep our eyes on the full problem of political corruption, not just the problem of majority tyranny. The inherent tensions in the concept of the rule of law can and should be interpreted in such a way as to build trust between democratic citizens rather than only protect the private rights of individuals. Protecting rights is certainly one way to foster this kind of trust, but it is not the only way and sometimes by itself it is not the best way. Sometimes practices that limit certain individual rights (for example, property rights in employment) build greater political trust among a larger, more inclusive citizenry at the same time that they strengthen and not weaken the rule of law.

The argument for this thesis has four parts. First, I identify two practices - lustration in the East and affirmative action in the West - that violate the liberal conception of the rule of law while revealing an important parallel between democratic transitions in the East and older democracies in the West.(8) Second, I discuss the function of the liberal conception of the rule of law to curb corruption in order to make the liberal objections to these two practices explicit. Third, I argue that lustration can advance the rule of law, not undermine it, if we think of the rule of law as an activity designed to stem political corruption, that is, the dispiriting exclusion of citizens from public life and the cynicism this breeds towards the possibility of common goods. The rule of law need not be just a constitutional device for curtailing state power and majority rule, as the liberal conception assumes. The rule of law can be a discursive framework for political participation and the creation of democratic trust. Fourth, I argue that if discussed, planned, and carried out democratically, affirmative action also, on balance, can move us toward a more democratic rule of law. In conclusion, I consider two objections to the argument and briefly respond to them.

 

II. Parallel Practices

Transition is an imprecise label for the many changes and conflicts that have occurred in Eastern Europe since 1989.(9) Transition can refer to the establishment of free elections, the protection of individual liberties, the creation of a capitalist economy, the growth of a pluralistic civil society, or the establishment of the rule of law. Here I am only concerned with the rule of law. In fact, some of these other meanings obscure rather than clarify much of what has been going on in Eastern Europe as well as Latin America, but I won't be discussing these meanings of transition.

What is interesting, and not misleading, about the establishment of the rule of law as an element of these democratic transitions is that in order to inculcate respect for the rule of law, it often has been necessary to violate some of its precepts. This is not new. After World War II, the process of de-nazification required that some former Nazis and other German citizens be prosecuted for violating laws that were not all on the books when they allegedly violated them. In the post-Cold War era similar tribunals have been established to create confidence in the rule of law even though they have had to rely on retroactive laws to do it. This is also true of other mechanisms for advancing the transition to democracy today. For example, lustration has sometimes violated the precepts "ought implies can," "no arrest without a law," and some elements of procedural due process.

There is a parallel between lustration and the equally controversial practice of affirmative action layoffs in the United States. Both practices involve the loss of employment, and in both cases those who lose their jobs feel that they have been the victim of a moral wrong. They feel that something they have trained for, worked for, and invested in has been taken away from them and given to someone less qualified or deserving, all through no fault of their own. They feel that they have played by the rules, succeeded, and then the rules have been changed in the middle of the game without their consent. From their point of view, this is more like being punished by a retroactive criminal law than it is like being forced to readjust their investment decisions because of changes in the tax code.

Furthermore, when their property rights in employment are infringed, it is very difficult for citizens to trust each other enough to focus their attention on the common purposes that the property in question was to serve. They tend to think of their lost job as a material possession that they have made for themselves, not as part of a common project that requires trust and cooperation. For these reasons, lustration and affirmative action, both designed to restore trust in the rule of law among citizens who have come by their distrust of public life and political power quite honestly, actually may create new forms of anger and resentment among others who believe they are now the victims of witch hunts and reverse discrimination. By showing how these two controversial practices can contribute to the establishment of a democratic rule of law, it may be possible to avoid this unintended consequence.

To sharpen this parallel between lustration and affirmative action layoffs, I am going to rely on two particular cases that I will summarize now and later return to in more detail.

 

(A) Lustration. In 1968 Jan Kavan, a student leader in Prague, fled to London after the Soviet invasion of Czechoslovakia.(10) He became a leader in the Czech emigre community and a founder of the opposition press. In 1969 and 1970 Kavan traveled widely to gather support for opposition activities. He was caught by the StB, the Czech secret police, and his passport was confiscated. In return for his passport and his freedom, he allegedly agreed to provide information to the StB. Twenty years later, after the Velvet Revolution of 1989, Kavan returned to Prague and was elected to Parliament. In 1991, however, he was investigated under the new Law on Lustration. This law excluded from public office until January 30, 1996, all those who had been listed by the former Communist regime as involved in state activities or who were listed as "conscious collaborators" by the secret police. When he was identified as a "conscious collaborator" in 1991, Kavan lost his seat in Parliament. His only recourse was to file a civil suit for defamation of character, and predictably that got bogged down in the courts. In early 1999 he was the Foreign Minister of the Czech Republic.

 

(B) Affirmative Action. In 1982 Wendy Wygant, a white elementary school teacher in Jackson, Michigan, along with several other white teachers filed suit in Federal Court against the Jackson School District.(11) They charged that they had been laid off on the basis of their race and that minority teachers with less seniority than they had had been retained. They argued that the affirmative action layoff plan responsible for this was unconstitutional even though it had been part of an agreement between their own teachers' association and the school district since 1972. In 1986 the U.S. Supreme Court, in a 5-4 decision, overruled two lower federal courts and found for Wygant.(12) The majority held that (1) "societal discrimination" (no other showing of discrimination had been established in the lower courts) was not enough to warrant an affirmative action remedy and (2) this remedy in particular, unlike affirmative action hiring programs that had a more diffuse effect on non-minority job candidates, unfairly burdened specific "innocent" teachers by laying them off before minority teachers with less seniority were laid-off. In his plurality opinion, Justice Powell argued that the goal of providing more "role models" for minority students was not a "compelling" enough state end to justify the race conscious dual layoff plan. An aggressive minority hiring program, he said, was all that could be justified. In Spring 1994 she was still working as an elementary school teacher in Jackson.(13)

 

From the perspective of contemporary political liberalism, these two cases read like a twentieth-century tale of two cities. In Prague the rule of law was compromised and an individual's right to due process sacrificed in the name of the democratic transition. In Jackson, where democracy was on a firmer footing, there was no need to compromise constitutional protections of individual rights. In Wygant, justice was done. In the Kavan case, something much less, transitional justice, was done.(14)

This liberal belief that transitional justice is only weakly committed to the rule of law is misleading. Liberal democracies like the United States are themselves in transition and sometimes modify their interpretation of the rule of law in order to foster democracy. This does not mean that the citizens of Jackson were not committed to the rule of law, any more than it means that the Czech Parliament repudiated the rule of law when it passed and revised the Law of Lustration. The affirmative action layoff plan that was overturned in Jackson can be defended on the basis of the same democratic conception of the rule of law that grounds the practice of lustration.

The defense begins, as it were, inside the liberal conception of the rule of law. Even though the liberal conception of the rule of law is incompatible with lustration and strong versions of affirmative action like that in Wygant, the form of the argument Rawls offers for balancing the precepts of the rule of law when they do conflict can be used when applying the democratic conception of the rule of law to these practices. What distinguishes the liberal and democratic conceptions of the rule of law, as I've said, is the purpose they serve. The purpose of the rule of law on its liberal interpretation is to limit arbitrary authority and majority rule for the sake of private rights and security; that is what liberals have in mind when they refer to political corruption. From a democratic perspective, the purpose of the rule of law as a method of limiting corruption is to build trust in public deliberation and faith in the possibility of common goods. This seems to pack a lot into the rule of law, and it does. But it is packing that is just as consistent with the contours of the general concept of the rule of law as the liberal conception is and more likely to sustain a practical commitment to the rule of law in a democracy in transition, East or West.

 

III . Political Liberalism under "Unfavorable Circumstances"

"The problem of political liberalism is," according to Rawls, "How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical and moral doctrines?" The answer, he continues, is "to uncover the conditions of the possibility of a reasonable public basis of justification on fundamental questions."(15) In some societies with a tradition of liberalism Rawls believes that this process of uncovering is already within reach. In other, less tolerant societies struggling to move from authoritarian and communist rule to a more democratic political order, it will take more time for political liberalism to develop.

Where possible, then, political liberalism strives to articulate in theory and extend in practice the "overlapping consensus" that exists, despite deeper disagreements, among free and equal citizens over the "constitutional essentials" of a just political system.(16) These constitutional essentials (i.e., principles of limited representative government such as judicial review and the separation of powers, the rights of political participation, liberty of conscience, and the rule of law) must be rooted firmly in the political culture of a society in order for political liberalism to uncover them and draw out the requisite regulative principles of justice.

According to liberal theory, there are three ways that the rule of law can foster an overlapping consensus on regulative principles of justice. First, as I said at the outset, the rule of law states that the government and its officeholders are not above the law. The law rules, and no one, not even the chief executive, is above it. If no one is above the law, then officeholders cannot abuse their power with impunity. They cannot judge in their own cases, favor their own family and friends, or pardon themselves. Second, the rule of law moderates the passion for revenge. Procedural due process takes the prosecution of criminal offenses out of the hands of the aggrieved and places it in the hands of a professional prosecutor representing "the people." Other safeguards provide a cooling off period so that an Oresteian cycle of private revenge does not occur.(17) Third, as Rawls emphasizes, the rule of law provides the kind of predictability in human affairs that citizens need in order to carry out their individual life plans. It is a necessary condition for individual liberty, if by liberty we mean the freedom to formulate and carry out a rational plan of life. Rawls calls this "justice as regularity." The rule of law allows individuals to form certain reasonable expectations about how others will behave and how their actions will be received. They know what the law allows them to do and what it requires of others.(18)

Having located the rule of law within this ideal framework, Rawls then turns to situations in which compliance with the principles of justice will be at best partial. This is what he calls the domain of non-ideal theory. In some situations such as armed paramilitary threats to order, it may be permissible to pass laws that are not consistent with each of the precepts of the rule of law.(19) For example, in this situation strict liability laws prohibiting the possession of firearms may be permissible even though they violate the precept of ought implies can. Strict liability for possession means that intentionality and knowledge are irrelevant; holding someone strictly liable for unknowingly possessing a firearm means that even when he could not have known better, he still ought not to have done it. The justification for this qualification of the rule of law, according to Rawls, is that it may on balance increase justice as regularity. By outlawing firearms under these conditions, this form of strict liability limits the liberty of some in order to increase the liberty of the "representative citizen."

Another non-ideal case, different from the partial compliance case of paramilitary violence, is when unfavorable conditions arise that make it difficult or impossible for citizens to adhere to the principles of an ideal theory of justice. Rawls does not mention this in his discussion of the rule of law in A Theory of Justice, but deals with it explicitly in his more recent article, "The Law of Peoples." In this article Rawls considers two situations. First, he discusses how a well-ordered federation of different peoples should respond to "outlaw" peoples who violate the law of peoples.(20) Then, he discusses how they should respond to peoples who are unable to comply with the law of peoples because of the unfavorable circumstances they find themselves in through no fault of their own. In the former case of "outlaw" peoples (a case of partial compliance similar to paramilitary violence) he recommends multi-lateral sanctions against the outlaw.(21) In the latter case of "unfavorable circumstances" he suggests that the immediate goal is to help transform the "public political culture" of those people who cannot live up to the ideals of the law of peoples, especially the principle requiring that they "honor human rights." Better off societies have a duty to help inculcate a respect for the law of peoples and also help meet basic human needs in societies less favorably situated.(22) Rawls refers to these as "questions of transition: In any given case [well-ordered societies in favorable circumstances] start from where a[n unfavorably situated] society is and seek effective ways permitted by the law of peoples to move [that] society some distance toward the goal."(23) Transition is a process that well-ordered societies should help less favorably situated societies through so that they can comply more fully with the rule of law.

Consider the problem of transition in situations in which the former authoritarian party members are elected or appointed to offices in the new government. This may be a case of unfavorable circumstances in the Rawlsian sense. If the former party members are not openly corrupt, they still may be susceptible to blackmail. And even if they do not give in to blackmail, they may have an unfair competitive advantage over those who were not in the party. On its face, lustration is an attempt to limit these forms of corruption. It also strives to reduce the likelihood of revenge: former dissidents, outraged by the new economic fortunes of the former nomenklatura, may be tempted to take the law into their own hands if they think nothing is being done about these ill-gotten gains.

However, from the perspective of the liberal rule of law, even a limited form of lustration that focuses only on former party members and avoids reliance on possibly tainted secret police files to implicate others, is wrong. How can one be sure that a non-party member's failure to be promoted in the workplace was the result of reports made by supervisors or even fellow workers who belonged to the party? Whose version of what did or did not happen is to be believed? What records are to be trusted? Why are these records any more reliable than the records of the secret police? From a liberal perspective, lustration threatens to ignore the presumption of innocence, ascribe guilt by association, and deprive individuals of employment without due process of law.(24)

How should more favorably circumstanced, well-ordered societies help a society in this predicament through its transition? Should it focus on inculcating a respect for the liberal rule of law or should it permit some limited form of lustration in order to reduce political corruption and revenge? "Everywhere in post-revolutionary Eastern Europe the goal of lustration was the same: to preclude the corrupt from continuing in power in the democratic era."(25)

 

IV. Lustration and Corruption

The term lustration (from the Latin, lustratio, meaning purification by sacrifice) is usually associated with the specific laws passed in the Czech and Slovak Federal Republic, beginning with the "Screening Law," Act No.451/1991 of October 4, 1991. Similar laws have been passed or introduced in Bulgaria, Poland, Germany, Hungary, Lithuania, and Russia. These laws and proposals - designed to remove appointed and elected state and party officials, and in some cases other state employees in education, for example, and also to screen and disqualify prospective officials and employees - differ considerably in their details. They are also not without analogues in other parts of the world (for example, Cambodia and El Salvador) or historical precedents (post World War II Denmark and Germany).

What makes the Czech approach to lustration more instructive than, say, the Polish experience, is the immediate and direct way in which the principals in the Czech case came to terms with what was at stake. In Poland, practices such as restitution and lustration were kept off the political agenda for several years after 1989 in order to move the Roundtable negotiations forward and avoid a communist backlash.(26) The unhappy consequence of this was profiteering by former nomenklatura and feelings of resentment among those who had suffered most during the period of communist rule. When lustration did surface in 1992 under the Olszewski government, it created a scandal that finally brought the government down. Only in October 1998 did Polish President Kwasneiwski sign a very limited lustration law favored by a coalition of centrist parties in the Polish parliament and led by the trade union party Solidarity.(27) However, the lustration debate in Poland continues to be dominated by acrimonious rhetoric.(28)

This is not to say that the Czech experience with lustration has been without problems and sharp disagreements. Domestic Czech opinion has been split over the effectiveness and the need for this practice. Some even blame it for the breakup of Czechoslovakia.(29) Others believe that it is almost beyond reproach: "It is not a quest of revenge or of passing judgment - it is simply a question of being certain about our associates, about those who write our newspapers, and about the men and women who govern our country."(30) Both of these extreme views miss the point.

In an interview with Adam Michnik, an outspoken critic of "decommunization" in Poland, Vaclav Havel stated that as a private person he thought the lustration act was "very harsh and unjust." As a private person, he opposed it. "Yet as President," he continued, "I must bear in mind that society needs some public action in this regard because otherwise it would feel that the revolution remains unfinished. There are people whose own lives and whose families have been destroyed by the regime, who spent their entire youth in concentration camps, and who will not be easily reconciled to all that - especially since many of those who had persecuted than [sic] are much better off than their victims."(31)

There are, of course, many possible roads to reconciliation, none of them easy. Special commissions empowered to grant limited amnesty for public confessions stand at one end of the spectrum; war crimes tribunals and criminal prosecutions stand at the other. In addition, efforts at restitution and compensation, as difficult as they are to assess, have been tried.(32) In focusing on lustration, I do not mean to suggest that it is necessarily either better or worse than these other practices. For those Czechs who thought the final act of the Velvet Revolution was too easy and the curtain came down too quickly ("The fix must have been in"), it seemed that something had to be done fast. For them, lustration was one way to eliminate quickly from public office those persons who had shown that they were willing to accept a bribe or may now be vulnerable to blackmail because they once talked too much with the secret police.

It is this protection against a "velvet restoration" of post-communists that most self-described liberal critics have denounced. Organizations such as Helsinki Watch (U.S.A.), the International Labor Organization, and Human Rights Watch found that the act "diverged from its original purpose."(33) It sacrificed standard protections of the rule of law (i.e., the presumption of individual innocence, the prospectivity of laws, and the right of appeal and defense) for the sake of a larger ideological political agenda. Rather than advance the transition to democracy, the ILO argued, lustration retards it. If not McCarthyism, lustration is still a form of blacklisting that denies those named in notoriously unreliable secret police files any real legal remedy. Where private employers rely on these lists to screen their employees, the level of arbitrariness is even higher.(34)

The unreliability of the lists and the potential for arbitrary treatment, especially by private employers, are undeniable. Other problems such as the absence of an appeal procedure for those falsely identified perhaps are more remediable. Retroactivity is unavoidable. The question is, however, Do these problems outweigh the value of lustration as a practice designed to reduce corruption and avoid a cycle of revenge? Much depends upon how one defines corruption and revenge. Understood in liberal terms, the answer is no. For liberalism, corruption is defined as the arbitrary exercise of government authority, most often by passionate majorities pursuing selfish interests, and revenge is understood as a more volatile individual passion, an emotional failing.(35) On these terms, lustration cannot offset the loss in individual liberty by reducing corruption and revenge. It is more likely to breed corruption and trigger revenge than it is to reduce them.

In contrast, as I have said, a democratic conception of the rule of law takes a broader political view of corruption and revenge. Corruption involves not just the selfish behavior of (the representatives of ) majorities. It includes the destruction of the political trust between citizens necessary for discussion and the formulation of common projects.(36) It is this lack of trust, separate from the criminal or near-criminal behavior of the former members of the nomenklatura, that Havel has in mind when he speaks about the problem of reconciliation. Too many Czechs, he suggests, feel that they cannot trust someone who has traded party office for economic advantage or someone, like Kavan, who even twenty years ago thought that he could outsmart his handlers. Without something like lustration, it may not be possible to build trust in a timely way between former dissidents who naively played into the hands of the secret police, former dissidents who steered clear of the secret police, and the many non-dissidents who hoped to slip quietly by unnoticed. It is this wide fabric of trust among former dissidents and non-dissidents, not just the trust of citizens in particular government officials, that lustration strives to build.

The political problem of revenge is tied to this larger notion of corruption and democratic trust. When citizens distrust the deliberative political process and rely instead on new connections to get even or get ahead, democratic trust and faith in the possibility of common goods suffer. Lustration, limited to former members of the nomenklatura and with the proper appeals procedures and safeguards, may help citizens free themselves from the vengeful tactics that corrupt politics in this sense.(37)

Certainly lustration can spiral out of control and feed feelings of personal revenge. This seems to be Lawrence Weschler's view of the Kavan case, and it is why Havel balked at the first version of the lustration law.(38) When the problems of corruption and revenge (two of the three reasons for maintaining the rule of law) are understood in this broader sense, the rule of law's purpose should be more than just to establish "justice as regularity" and the protection of the liberty of the "representative citizen." It also should teach actual, not abstract representative democratic citizens how to identify and resist a corrosive distrust of one another and a self-fulfilling cynicism about the possibility of common goods. If the rule of law is understood in this broader democratic sense, exceptions to particular precepts of the rule of law can be justified on the grounds that on balance they reduce political corruption and revenge, not just on the liberal ground that the individual liberty of the "representative citizen" is safeguarded against majority tyranny.(39)

Which way the balance tips, of course, will vary with the particular case and how openly the discussion of liberty, corruption, and revenge is conducted. It is not clear to me that the discussions of lustration in Czechoslovakia, the Czech Republic, or Poland have proceeded in a sufficiently open way to justify the practices of lustration that have been instituted. In order to get some idea of what such an open discussion might look like, I return to the practice of affirmative action layoffs.

 

IV. Affirmative Action and Democratic Trust

A democratic conception of the rule of law is not a second-best conception designed for post-totalitarian societies in transition. Broad political corruption and revenge are no less serious in economically developed liberal societies, and intractable problems such as institutional racism are examples of this kind of political corruption. They invite suspicion and lead to political despair. If we want to overcome them, we also must think about the rule of law from a democratic point of view. And when we do, certain practices that otherwise would be unjustifiable under the liberal rule of law are permissible.

Of all the forms of affirmative action in employment and education, affirmative action layoffs have encountered the harshest criticism and the stiffest resistance. Because it involves the direct loss of employment for identifiable individuals, even a voluntarily agreed upon affirmative action layoff plan between employers and employee representatives has been declared unconstitutional. The reason given in Wygant is that affirmative action layoffs constitute a form of discrimination on the basis of race resulting in the loss of employment cannot be justified by increased minority role models. Even where a voluntary plan is the only way to achieve this end, it is not enough and the plan has been struck down.(40)

From the point of view of political liberalism, it is hard to argue with this. However, if we recognize that the goal of affirmative action layoffs is to build political trust in a situation in which institutional racism still prevails, the picture becomes more complicated.

Minority teachers often have been the last hired in school districts struggling to reduce racial segregation in the classroom and their own workforce, and during periods of declining enrollments and smaller budgets these teachers will be the first fired according to the institutional seniority rules - rules, it should be added, that in the past have provided important protection for teachers and other workers who have held unpopular political beliefs. Unless an exception can be granted to the seniority rules, it will be very difficult to attract minority teachers into these districts.(41) The only way to break this cycle is to agree voluntarily on a plan to bring new minority teachers into the system and protect some of them from being the first fired every time there are layoffs.

But to do this, there must be a certain degree of democratic trust that goes deeper than the Rawlsian notion of an overlapping consensus on liberal principles of justice. Citizens must trust each other not to exploit temporary bargaining advantages, not to hold grudges, and not to dissemble in public. Only then, can they trust that their work is viewed as a contribution to a common good. In the case of teachers, that common good is an integrated public education. It is hard to lay this kind of ground; no labor contract alone can do it. It is a process that there was some reason to believe was occurring in Jackson before the Court's ruling in Wygant.(42)

The story begins in the late 1960s when Jackson, Michigan was having a hard time. After a period of growth the school district was losing students, in part because of the declining economy. The school district was under additional pressure from the State to balance its budget and not run an operating deficit. At the same time racial conflicts created more tension. In 1969 the local NAACP Chapter had filed a complaint with the Michigan Civil Rights Commission, which the Commission sustained, that the School Board had been guilty of discriminatory hiring practices.

However, unlike other Michigan school districts that had been ordered by the courts to desegregate, Jackson had responded positively to these pressures and tensions. The student bodies of its two high schools and four junior high schools had already been desegregated, and the 22 elementary schools were next. The NAACP agreed with the School Superintendant, Lawrence Read (a white man in his mid-50s), that to accomplish the goal of full desegregation, some form of busing was necessary. Community resistance to this phase of the plan, however, was very strong, and Read had to be careful.

Several busing plans were presented to Jackson citizens, but these were decisively rejected, including the plan to bus only black students which met with immediate resistance from the black community. Teachers were equally divided. Even though they agreed with the goal, some teachers who would be transferred to another elementary school under the details of some of the plans, also showed signs of resistance. On top of this there was the more threatening idea that racially balanced education required racially balanced educational staffs. To hire and then retain new minority teachers, Read argued, affirmative actions programs would have to be put into place. With the climate in Washington changing, teacher support for this part of the plan was lukewarm.

Read established a Professional Council of administrators and teachers to build more support for the desegregation plan and then returned to the community to try to make his case more effectively. He created a Citizens' Advisory Committee to study the situation and make further recommendations to the School Board. On the affirmative action question the Committee recommended that the District achieve racial balance among the teaching staff at the elementary schools. If there is 15% minority students in a school, there should be roughly the same percentage of minority teachers in that school. With the support of the Jackson Education Association's Director, Bruce Ambs, Read and his staff seemed to be getting what they wanted, at least from the fifty odd members of the Citizen's Advisory Committee.

As the community meetings continued, the School Board sent out its own information describing why a voluntary plan was better than a court ordered one and why reaching racial balance in the teaching staff would be very difficult during a period of layoffs if the present seniority rules were followed. Many of the new minority teachers Read and his special assistant for minority affairs had hired were recruited from the South, and it would be very difficult to retain them, let alone persuade more to come, without changing the layoff rules.

Three layoff plans dominated discussions in 1970-71. The first was the old seniority plan of last-hired, first-fired. At the other end of the spectrum was a freeze on minority layoffs, regardless of how it affected tenured non-minority teachers. The seniority plan was favored by about one third of the union membership and the freeze was favored by Read and slightly less than one third. Gradually, between these two extremes a third plan began to take shape. This was the dual layoff plan that created, in effect, two separate layoff lists for probationary teachers. For example, if the District was forced to layoff 10% of its teachers, then on the basis of seniority and tenure 10% of the non-minority teachers and 10% of the minority teachers would be laid off, regardless of whether some of the minority teachers who were not laid off had less seniority than laid off non-minority teachers.(43)

Initially, the School Board's bargaining team, led by Read, took the position that only a freeze on minority layoffs could preserve the small progress that had been made in integrating the staffs of the elementary schools.(44) The JEA, now led by Kirk Curtis, was divided. Some members wanted the old seniority rule and others, including the minority teachers, strongly wanted the freeze. Curtis viewed Read as a moral crusader who polarized people on this issue. He thought it was up to the union bargaining team to bring Read and the Board around without splitting their own membership.

Curtis played the role of a relative hardliner who would not accept the freeze. Another key figure emerged at this point, Ernestine McClelland, a black middle-aged elementary school teacher. McClelland had lived in a middle class neighborhood in Jackson until she and her family decided to move to a nearby rural community. Their new neighbors welcomed them by setting fire to their house three times. McClelland was committed to the dual layoff compromise. As the negotiations progressed, Curtis and a couple of the other members of the JEA team regularly met with Read informally to try to convince him that the freeze just would not be ratified. At the same time McClelland held firm: the bargaining team should not support the old seniority rule.

This group of experienced teachers working together on this contract were able to persuade their fellow teachers who were afraid they would lose their jobs and administrators committed to a moral ideal of full integration now. They had the ability to listen carefully, make concessions, and moderate their own voices at a time when other voices often were raised in anger. There was no win-win rhetoric, as far as I can tell, in these conversations. Nor were there only demands for what our side wants. The commitment to desegregation remained a focus that allowed the participants, as they spoke with one another publicly and privately, to remain focused on their task. Some may have become aware of how they benefitted from the existence of institutional racism, but I don't know that for a fact. Some may have recalled their experiences as frustrated teachers in segregated classrooms. I don't know that with any certainty either.

Bruce Ambs, later the retired Director of Human Resources at the Jackson School Board and Kirk Curtis's immediate predecessor as Executive Director of the JEA, described this period in his life as one of the most difficult and trying times he has lived through. When asked what did he learn and how did he manage to make it through, Ambs said that it was through conversations with minority teachers like Ernestine McClelland that he began to understand how he sounded to them and how differently they saw the things he was seeing. One effect of the process was that some teachers, students, parents, and administrators learned that public education can be a common good when they trust each other enough to resist strategic bargaining. That it proved to be temporary only underscores how transitional democracy is in cities like Jackson, Michigan.

 

Conclusion

Let me conclude by considering two objections that come from opposite directions. The first is an objection to my claim that the liberal conception of the rule of law is incompatible with lustration and affirmative action layoffs. The second is an objection to my claim that the democratic conception of the rule of law is a justifiable extension of the liberal conception

Objection 1. In a democratic society governed by the rule of law, not just new democratic societies striving to establish the rule of law, sometimes bad things happen to people through no fault of their own and the law regrettably countenances these things for the sake of more effective and reasonable public policy ends. Voluntary affirmative action layoff plans and carefully tailored lustration are, in this sense, no different from mandatory retirement for airline pilots and high insurance rates for teenage male drivers. Some, perhaps many, older pilots and young male drivers are as competent as anyone else to fly a plane or drive a car. But enough of them are not to warrant special treatment. The evidentiary standards for criminal punishment do not permit us to rely on this kind of statistical generalizing, but where the harm done to individuals through no fault of their own is not criminal, then the law quite correctly allows employers and the state to discriminate against these individuals as a class.(45)

Response. Mandatory retirement with full benefits is not the same as lustration or layoff. There is no stigma attached and you don't lose everything. Higher insurance rates for teenage drivers is also not the same: you can still drive if you can pay the higher premiums. The reason why these penalties are permissible under the liberal rule of law is that they are imposed on people through no fault of their own. Many former party members (and possibly some dissidents) and teachers do have some shared responsibility for the institutional problems that lustration and affirmative action layoffs are designed to overcome. Even if they may have committed a youthful indiscretion or naively believed that their employment was simply based upon merit, the facts, to the best of our knowledge, are that they probably still did benefit unfairly from party connections and institutional racism.

Objection 2. A commitment to a broader democratic conception of the rule of law is a form of natural law theory and tantamount to what Rawls calls a comprehensive moral doctrine. In the name of fighting political corruption, this democratic conception of the rule of law elevates political participation to a necessary social good for all citizens, not just one possible element in a reasonable life plan.

Response. The democratic conception of the rule of law does not wrongly presuppose agreement on contested moral, religious, or philosophical beliefs. It too accepts what Rawls calls the "fact of pluralism" but strives to use the concept of the rule of law to build greater political trust and cooperation than Rawls feels is possible among groups with differing moral, religious, and philosophical beliefs. If members of these groups are committed to democratic politics, than within the broader discursive framework of a democratic conception of the rule of law they will understand and act on their own comprehensive moral doctrines in a more tolerant way.

In other words, the democratic conception of the rule of law has a political ground, not a deep or fixed natural foundation. On this interpretation of the rule of law, legitimate laws will conserve and cultivate the political trust and cooperation that democratic citizens must have for one another on the ground, as it were, if they are to continue to respect one another's deeper moral, religious, and philosophical beliefs. The democratic conception rejects legal positivism, but it does not represent a naive return to natural law theory.

Nonetheless, the democratic conception of the rule of law sketched here does presuppose a faith in the creative possibilities of democratic trust that exceeds the expectations of political liberalism. It presupposes that citizens can recognize the fact that democratic politics is always in transition and that they themselves must interpret the precepts of the rule of law to advance this transition in a more inclusive direction. However, this extension of the liberal conception does not presuppose a deeper, pre-existing congruence among incompatible moral and religious world views. It assumes that a more inclusive, more intelligent, and more active democratic politics is possible for citizens who do not have neatly congruent moral and religious world views, but only if they work on making it more intelligent and inclusive. The only way to test this assumption is to allow and encourage citizens to take the rule of law more seriously as a tool for advancing, not restraining, democracy.

 

Notes

1. 1. The Constitutions of the New Democracies in Europe, ed. Peter Raina (Cambridge, UK: Merlin Books, 1995). Compare the prominent way in which the rule of law is invoked in these new constitutions (A similar provision occurs in Section 1, Chapter 1, Article 1 of The Constitution of the Russian Federation, December 12, 1993: The Russian Federation-Russia is a democratic federative rule-of-law state with a republican form of government.) with the elliptical way it appears through the due process clauses of the 5th and 14th Amendments to the United States Constitution.

2. 2. For a review of the relationship of lustration to similar practices such as the outlawing of certain party organizations and official symbols, see C. Charles Bertschi, "Lustration and the Transition to Democracy: The Cases of Poland and Bulgaria," East European Quarterly, Vol.XXVII, No.4, January 1995, pp.435-51.

3. . Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation : southern Europe, South America, and post-communist Europe, (Baltimore, Md. : Johns Hopkins University Press, 1996).

4. 4. The formula, "a government of laws and not of men," can be traced to James Harrington, The Oceana, ed. John Toland (London, 1747), p.37. This is a more complicated notion than it may first appear. Hobbes had already taken issue with it directly by reminding his readers that laws do not interpret or enforce themselves. There is always some human will, whether individual or collective, standing behind the law. For a response to Hobbes, see Jean Hampton, "Democracy and the Rule of Law," NOMOS XXXVI: The Rule of Law, ed., Ian Shapiro (New York: New York University Press, 1994), pp.13-44.

5. 5. See Lon L. Fuller, The Morality of Law, revised edition (New Haven: Yale University Press, 1969), pp.46-49, 63-70, 79-81. For a radically different view that emphasizes the personae associated with a particular "mode of association" called the rule of law, see Michael Oakeshott, "The Rule of Law" in On History and other essays (Oxford: Basil Blackwell, 1983), pp119-63.

6. 6. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), pp.237-39.

7. 7. For an intricate discussion of these tensions, see Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: MIT Press, 1996).

8. 8. While lustration is identified with transitional democracies in Eastern Europe and affirmative action with established democracies in the United States and Western Europe, there are examples of lustration in the West and affirmative action in the East. For example, in Poland in the 1970s, there was an affirmative action program to increase the number of students from rural areas at universities. Much earlier in Texas after the Civil War, the property rights of some landholders were restricted for political reasons. I owe these examples to Leszek Koczanowicz and Larry Hickman, respectively.

9. 9. For a useful overview, see Milada Anna Vachudova and Tim Snyder, "Are Transitions Transitory? Two Types of Political Change in Eastern Europe Since 1989," East European Politics and Societies, Vol.11, No.1, Winter 1997, pp. 1-35.

10. 10. Lawrence Weschler, "The Velvet Purge: The Trials of Jan Kavan," The New Yorker, Vol.68, no.35, October 19, 1992, pp.68-94.

11. 11. Wygant v. Jackson Board of Education, 546 F.Supp.1195 (E.D. Mich. 1992)

12. 12. Wygant v. Board of Education, Jackson, Michigan 476 U.S. 267 (1986)

13. 13. Justices O'Connor and White disagreed with the other three members of the majority (Powell, Burger, and Rehnquist) in two respects. White qualified his opinion by not committing himself to the view that hiring goals and quotas were illegitimate to correct for past societal discrimination. O'Connor disagreed with the other three who believed that there must be a previous finding of past discrimination by a court or other governmental body.

In his dissent, Justice Marshall argued that because this was a voluntary agreement, the School board should be allowed to preserve their successful inroads against past discrimination, even if it was unfair to some. Like O'Connor, he also rejected the plurality opinion that a lower court showing of invidious racial discrimination by the School District was necessary in a case involving a voluntary agreement. Justice Stevens's dissent rejected the need for a convincing remedial argument and rested the layoff program entirely on its future value to minority students. Both Marshall (writing for Brennan and Blackmun) and Stevens argued that the unfairness to laid off nonminority teachers was regrettable but not unconstitutional. They cited several other cases in which the Court had permitted voluntary qualifications on seniority layoff rules based on veteran status and union employment to advance public policies.

14. 14. Ruti Teitel, "Transitional Jurisprudence: The Role of Law in Political Transformation," The Yale Law Journal, Vol.106, 1997, pp.2016-35. Also, Richard Lewis Siegel, "Transitional Justice: A Decade of Debate and Experience," Human Rights Quarterly, Vol.2, No.20, 1998, pp.431-54.

15. 15. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp.xviii-xix.

16. 16. ibid., p.227.

17. 17. For a brief statement of the classical Greek inspiration for this aspect of the rule of law, see Andrew Altman, Arguing about Law: An Introduction to Legal Philosophy (Belmont, CA: Wadsworth, 1996), pp.7-9.

18. 18. Rawls, A Theory of Justice, p.235.

19. 19. ibid., p.242.

20. 20. John Rawls, "The Law of Peoples," in On Human Rights: The Oxford Amnesty Lectures 1993, eds. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), pp.41-82. Among the principles of this law Rawls includes: "1.Peoples (as organized by their governments) are free and independent and their freedom and independence is to be respected by other peoples. 2. Peoples are equal and parties to their own agreements. 3.Peoples have the right of self-defense but no right to war. 4.Peoples are to observe a duty of nonintervention. 5.Peoples are to observe treaties and undertakings. 6.Peoples are to observe certain specified restrictions on the conduct of war (assumed to be in self-defense). 7.Peoples are to honor human rights." p.55.

21. 21. loc. cit., p.74.

22. 22. loc. cit., p.77.

23. 23. loc. cit., p.72.

24. Herman Schwartz summarizes these objections and argues that if a society feels that it still must institute lustration, then at the very least it should avoid as much as possible retroactive liability and reliance on secret files. "Lustration in Eastern Europe," Parker School of East European Law, Vol.1, No.2, 1994, pp 141-171. A similar argument is made by Andrzej Rzeplinski, "A Lesser Evil?" East European Constitutional Law, Vol.1, No.3, Fall 1992, pp.33-35; both reprinted in Neil J. Kritz, ed., Transitional Justice (Washington, D.C.: United States Institute of Peace Press, 1995), Vol.I, pp.461-487. For a contrasting endorsement of lustration as "wholesale proscription" from an otherwise committed liberal political philosopher, see Bruce Ackerman, see The Future of Liberal Revolution (New Haven: Yale University Press, 1992), pp.96-97.

25. 25. Bertschi, "Lustration and the Transition to Democracy:...," p.447.

26. 26. Wiktor Osiatynski, "The Roundtable Talks in Poland" in The Roundtable Talks and the Breakdown of Communism, ed. Jon Elster (Chicago: University of Chicago Press, 1996), pp.21-68.

27. . "Polish Officials' Communist Past Exposed," Reuters, October 23, 1998, reprinted on Central Europe Online <http://www.centraleurope.com/ceo.news/o04.html>. "The bill demands that all judges, ministers, legislators, senior civil servants and officials of state-owned media declare if they worked or informed for the communist security apparatus. Those who admit they helped the secret services during the period of Soviet influence over Poland will not be barred from positions, but their declarations will be made public. Those found to have lied face a fine and a ten year ban from senior posts.... Kwasniewski, a former minister in the last years of communism, was forced to sign the bill when a constitutional tribunal declared it legal."

28. 28. See Radoslaw Sojak, "Politics of Exclusion and the Lustration Debate," paper delivered at the Conference on Democracy and the Post-Totalitarian Experience, sponsored by The Society for the Advancement of American Philosophy and held in Karpacz, Poland, May 27-30, 1998.

29. 29. Paulina Bren, "Lustration in the Czech and Slovak Republics," RFE/RL Research Report, Vol.2, No.29, July 1993, p.21.

30. 30. Petruska Sustrova, "The Lustration Controversy," Uncaptive Minds, Summer 1992, p.134.

31. 31. Adam Michnik and Vaclav Havel, "Confronting the Past: Justice or Revenge," Journal of Democracy, Vol.4, no.1, January 1993, reprinted in Kritz, ed., Transitional Justice, Vol.II, pp.539-40.

32. 32. For an overview, see Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998).

33. 33. Kritz, ed., Transitional Justice., Vol. III, p.329. One self-described liberal defender of lustration is Vladimir Tismaneanu. He has argued for lustration but against Ackerman's suggestion that the secret files be burned and there simply be a "wholesale proscription" of all the old state officials, thereby avoiding the stigma of individual findings of guilt. "Burning the files, in my view is a form of pretending that the horror never existed. The fundamental philosophical question is the nature of the Leninist regimes and our view of them from a liberal perspective: if we agree that they were systematic forms of controlling and coercing human will, then there is no moral imperative that compels treating their history differently from the treatment of Hitler's horrendous legacy." Fantasies of Salvation: Democracy, Nationalism, and Myth in Post-Communist Europe, (Princeton: Princeton University Press, 1998), p.131.

34. 34. For a discussion of this further problem in Germany, see Claus Offe, "Disqualification, Retribution, Restitution: Dilemmas of Justice in Post-Communist Transitions," in Varieties of Transition: The East European and East German Experience (Cambridge, MA: MIT Press, 1997), p.99.

35. 35. An example of this kind of constitutional understanding of corruption and revenge is Jon Elster, "Majority Rule and Individual Rights," in On Human Rights, eds., Shute and Hurley, pp.175-216.

36. 36. C. Douglas Lummis, Radical Democracy (Ithaca: Cornell University Press, 1996), p.112 .

37. . Carlos Santiago Nino makes a similar argument for war crimes trials. "When massive human rights abuses are investigated and tried, provoking public deliberation, the social dynamics responsible for such violations become the object of public discussion and collective criticism. What is being discussed is the value of democracy itself. Democracy is thereby strengthened by both the content and process of collective debate." Radical Evil on Trial (New Haven: Yale University Press, 1996), pp.132-33.

38. 38. For a similar skeptical argument, see Tina Roseberg, The Haunted Land: Facing Europe's Ghosts After Communism (New York: Random House, 1995).

39. 39. Franz Neumann's conception of a "social rule of law" bears some resemblance to the democratic conception of the rule of law that I am introducing. Neumann believed that the liberal rule of law was inadequate in the face of the transition to monopoly or corporate capitalism. Equality and autonomy would depend upon more than the formal guarantees that the it provided in this context. However, he realized that direct state intervention in the economy could just as easily reduce equality and autonomy as increase it, and so he argued that the social rule of law should provide quasi-judicial spheres in which workers could speak for themselves. The social rule of law, then, would create "a training ground for the working class to enter the complexities of contemporary politics." For a summary of Neumann's views, see William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1994), pp.43-55. Also, see The Rule of Law under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, ed. William E. Scheuerman (Berkeley: University of California Press, 1996).

40. 40. The U.S. Supreme Court was scheduled to hear a second affirmative action layoff case involving public school teachers in January, 1998. However, a settlement was reached in Piscataway Board of Education vs. Taxman, No.96-679. Advocates of affirmative action sought the settlement because they believed that the Court would decide the case in very broad terms that would eliminate most voluntary affirmative action plans.

41. 41. On institutional racism and seniority rules, see Gertrude Ezorsky, Racism & Justice: The Case for Affirmative Action (Ithaca: Cornell University Press, 1991), pp.24-26, 44-47, and 81-86.

42. 42. In addition to material supplied by the Jackson Board of Education and court documents, my reconstruction of these events has been aided by conversations in Spring 1994 with Wendy Wygant, Kirk Curtis, and Bruce Ambs.

43. 43. Another factor is certification. If only one teacher is certified to teach a particular course and that course is going to be offered, then this affects the layoff list.

44. 44. In thinking about these events I have been helped greatly by Joel E. Cutcher-Gershenfeld, "Bargaining Over How to Bargain in Labor-Management Negotiations," Negotiation Journal, Vol.10, No.4, October 1994, pp.323-36.

45. . I am indebted to Frederick Schauer for raising this objection.