IN a recent speech at DePaul University in Chicago, Poland's Prime Minister Tadeusz Mazowiecki spoke eloquently of the need to create throughout Eastern Europe regimes based on the rule of law - to guarantee human rights and safeguard against tyranny. The US will undoubtedly provide financial aid and economic advice to the countries of Eastern Europe and the Soviet Union, and already planeloads of political consultants have flown east to advise the many new political parties in the nuts-and-bolts of democracy. But noticeably absent from all this activity is the crucial aspect of nation-building that Mr. Mazowiecki emphasized.
There is much that American lawyers, judges, scholars, and political leaders can do to help these nations as they struggle with the new and difficult questions stemming from their decision to create a free and open society. The Bush administration should be doing everything possible to stimulate and encourage such a consultative process. The process need not be government-to-government, but the president can mobilize private lawyers and scholars, as President Kennedy did in helping to form the Lawyers Committee for Civil Rights Under Law in the civil rights days.
We tend to take for granted the rights embodied both in the Constitution and in our positive law, as well as the institutions and practices that protect these rights. But for many nations now struggling to understand the implications of their new freedom after years of autocratic rule, these issues are as alive and controversial as they were at the time of our Philadelphia convention in 1789.
In a recent speech to a group of law teachers in Chicago, federal judge Jon O. Newman recounted his recent experiences as part of a group of American lawyers and judges visiting the Soviet Union. The Americans met with Soviet constitutional scholars, lawyers, and public officials who were hungry to learn about American rights and institutions. The Soviet experts looked to the US as a model. They vigorously quizzed the Americans about a range of civil and political rights so interwoven in the fabric of American society that many of us have ceased to reflect on them.
How, for example, can the Soviet Union create from the ruins of a police state a system of police practices that protect citizens against arbitrary arrest, detention, and prosecution? How can it create press freedoms? Should the Russians emulate the American principle of separation of church and state? Should they repeat our costly, unique commitment to freedom of information? How can they set up laws to regulate the political process?
How, indeed, can Soviet leaders create the fundamentals of a fair legislative process? Perhaps most important, based on the Western experience, was the question of how to create an independent judiciary in a country without such a tradition? Should it be endowed with the American power of judicial review?
Underlying these concerns - shared by all the Eastern and Central European countries today - is the need to create a legal profession large enough and responsible enough to serve as a guardian of human rights.
With all their recognized faults, American lawyers have played a key role in preserving civil liberties from majority passions, and in protecting citizens from government arbitrariness. The process now at work in the Soviet Union, Poland, Czechoslovakia, and other countries is not unlike the US experience in the late 18th and early 19th centuries. It is a process of constitution-making, and just as important, one of adjusting and adapting the newly created rights to the changing needs of society.
While Americans should offer financial aid, and investment and business advice to help create workable market economies in Eastern and Central Europe, there is a need for another kind of help - a Marshall Plan of ideas. Because America is a country with long experience in articulating and protecting ``rights'' in a bewildering variety of contexts, our lawyers, judges, and academic experts should take the lead in assisting those in Europe who are reshaping their societies to conform to the rule of law. To be sure, all of our institutions are not transportable to other nations, for cultural or historical reasons. All of our ``rights'' are not universally accepted as desirable, even in this country. But we have experience with the rule of law, good and bad, that can help others.
The nations of Eastern Europe have a fierce desire for democracy and legal reform, and are in the position of benefiting from the experiences of others. As part of the rejuvenation of Eastern and Central Europe, then, why not organize delegations of American legal and political experts to confer with their counterparts there? We can explain American experiences with separation of church and state, judicial review, press freedom, and Miranda warnings, and assist those countries in fashioning solutions to their problems regarding human rights, and respond to their peculiar needs. Why not bring delegations of lawyers, judges, policemen, and civil servants to this country to study first-hand the successes and failures of our system?
President Bush should see such an alternative as a constructive way to answer critics who have attacked him for not responding more strongly to the revolutions of 1989. Compared to economic aid and investment, the costs of such an exchange will be paltry. Best of all, we would be exporting the highest achievement of our society - our protection of individual freedom of action and expression.