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Chief justice: Alabama, Iraq need rule of law

By Eric Fleischauer
DAILY Staff Writer 340-2435

The absence of the rule of law disrupted Alabama's economy a decade ago, and it may yet undermine Iraqi efforts to establish a democracy, according to the chief justice of the Alabama Supreme Court.

Drayton Nabers, who was the state's finance director until his appointment to the court seven months ago, spoke Monday at a meeting of the Rotary Club of Decatur. David Scott introduced him.

The justice said neither democracy nor a free market can flourish in the absence of the rule of law, a truism that he said could still cause problems in Iraq as it did a decade ago in Alabama.

"Unless the rule of law will protect property, we will not have capital," Nabers said. "Assets will not be invested where there cannot be an assurance of a return on that investment."

He said Iraqi citizens must establish an honest bureaucracy and property rights, both central to the rule of law.

Alabama, he said, had to re-impose the rule of law as it applied to punitive damages.

Alabama in the past

"Ten years ago, we didn't have such a judicial system in Alabama," Nabers said. "It was possible for very large punitive damage verdicts to be rendered in this state and affirmed on appeal. That made it very risky for companies to invest in Alabama. As a result, we were losing jobs."

The absence of the rule of law could spell problems for the future of Iraq, he said, a successful election notwithstanding.

"We need to be very concerned as to whether or not a democracy can succeed in the Middle East," Nabers said. "Not because people can't vote, but because it is so difficult to establish the rule of law."

Unlike Americans, Iraqis lack a tradition of law and liberty.

" 'Liberty and justice for all' is in our bones; it is our tradition. It is a natural part of the Judeo-Christian tradition we have. They don't have that in Iraq," Nabers said.

Embedded in any notion of the rule of law is an honest and efficient governmental bureaucracy, Nabers said, a characteristic he fears is lacking in Iraq.

Nabers referenced a study in Lima, Peru, where an economist tried to comply with all necessary laws to establish a one-employee company. He finally succeeded, but only after his four assistants spent 289 days and spent thousands of dollars. That type of bureaucracy, Nabers said, guarantees that no companies operate legally.

"When that is the case," Nabers said, "tyranny will follow, for the simple reason that the government can shut down every single business."

And giving that much power to a government, Nabers continued, scares away those who would invest capital into business ventures.

Nabers is a conservative, but his first job after graduating from Yale University Law School was as a clerk for U.S. Supreme Court Justice Hugo Black.

"Justice Black," Nabers prefaced, "was a true liberal in every respect. Except for one thing. He was a chauvinist of the first order."

Black's wife arranged a date between Nabers and his soon-to-be wife, Black's goddaughter. After hearing about the date, Justice Black called young Nabers into his office.

"Drayton, you will like Fairfax," Black said. "She is a very lovely young lady. But let me tell you something. Young ladies come to Washington for one reason, and that is to get married.

"And Drayton, she's been here for two years."

Warnings aside, Nabers said he and Fairfax were engaged in eight weeks.

"I'm not sure my wife appreciates that story," Nabers said.

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