Law and belief.

The law mirrors America. And the legal profession is a mirror of the nation's heritage, its present condition, and its destiny. Lawyers facilitate transactions and personal relations across the whole wide spectrum of America's economy and American social life.

Most lawyers do not require a detailed knowledge of court decisions in order to perform their particular specialties. Not every lawyer rushes to the office each day to read what we have written in the United States Reports. They often give counsel and close transactions in matters that do not require the intervention or control of the government at any level. In these diverse professional capacities, each lawyer celebrates freedom.

There is a special bond among all judges and lawyers. We are a unified profession. From the beginning of the republic, business lawyers urged colleagues for whom they had special admiration to serve in the judiciary, thus expressing confidence and solidarity in all parts of the profession.

We have a bond because of our common heritage and our common law school training, and so we speak to one another in a common language, the language of the law. One of you can pick up a telephone and talk to a lawyer whom you have never met and who is separated from you by a whole continent and perhaps a generation or two.

Nonetheless, you know each other in the sense that you have this bond and speak this language of the law. The language of the law is so precise, so powerful, so influential that it is one of our great national resources. It is the envy of many other people and many other societies.

And, yet, despite our historic strength and prestige, the profession and the nation face a difficult and most urgent task. Each of us must feel its weight. Our task is no less than to reaffirm and reassert our country's belief in the law.

If the rule of law is to be preserved, we must restore and revive our belief in its most simple, fundamental principles. Law must live in the consciousness of a people. In a free society, law must be part of our intellectual conscience. The belief must be constant in order to precede and then secure this consciousness.

It might risk hyperbole were I to say there is a crisis of disbelief in our nation, but our task of rededication and recommitment is urgent all the same. We must not wait until we are at the edge of the abyss. We must rededicate and recommit ourselves to the law in its most fundamental sense, not just for ourselves but for those new and emerging democracies that look to us as proof that the rule of law works.

We must recognize that in some new democracies, decent citizens cry out to learn those principles and beliefs that are necessary to sustain the rule of law. If their plea is unanswered, then in these places, too, there is, or soon may be, a crisis of disbelief.

Let me give you an illustration. In Washington, during the Court term just before the current one, and after more than a year of planning, we were able to convene a meeting of the chief justices of the countries of the Western Hemisphere.

The justices met for three days. Our chief justice and Justices O'Connor, Scalia, and Breyer addressed them, as I did, on different subjects. My session, for the whole of one morning, was devoted to judicial ethics and judicial independence. I discussed the theoretical underpinnings of judicial independence, as well as simple rules such as the prohibition against ex parte contacts with the court.

When I had finished, one of the chief justices from South America, a very dedicated jurist, asked for recognition. He said something like this: "Justice Kennedy, there is not one idea, one precept, one suggestion of yours with which we disagree. The system you describe is one to which we aspire, one for which all of us yearn. Yet we cannot have it. The customs of our bar and of our people would not uphold such a rigorous ethic. Our people would not believe it is possible."

The room fell silent. The silence was prolonged, poignant, powerful, and painful. We knew it was one of those unexpected moments at a seminar or a meeting that is a turning point. I gave what I think is the only proper answer. I said: "Chief Justice, you must change this legal culture and you must start to change today. Without respect for the judiciary and the law, the rule of law is in danger; and without the rule of law, nothing less than the liberty of your people is at stake."

A similar challenge faces the new democracies in Eastern and Central Europe. They are at a crossroads in the history of human freedom. In 1848, Germany failed to embrace democratic institutions and so set the course for one of the most destructive centuries the world has ever known.

Today, democracy has come to Eastern and Central Europe, but it must not lose its tenuous hold. History has yet to return its verdict on whether democracy is secure there. These nations, which are trying so valiantly to establish the rule of law, are beset by powerful opposing forces: crime, corruption, and the danger of a demagogue preaching false ideas.

They are struggling to fill the vacuum created when tyrannies and their corrupt state-directed economies collapsed. It would be tragic if decent people who want to make the rule of law work could not contend with these forces. The people of Eastern and Central Europe must not think they have done little more than substitute the lawlessness of a dictator for the lawlessness of a mob. They must be assured that there is a calm, secure, tranquil place between the Scylla of tyranny and the Charybdis of anarchy.

They look to the United States to see the state of our law, the tenor of our public discourse, and the condition of our whole social order. What they see may make all the difference in their determination to persist, their capacity to believe.

Let us consider then the principles that must be believed and upheld by our own people if our legal order is to be secure and a source of inspiration for us and for others. We know at the outset that we must share a common belief in some general principles that command allegiance and accommodate a diversity of religions and philosophies and viewpoints. Free institutions presuppose these diversities.

The Constitution of the United States, the charter of 1789 with its Bill of Rights and its vital amendments, is a necessary starting point. This is the Constitution with a capital "c," our basic charter, the instrument courts interpret, the document that remains a monument in the whole history of human thought. You have intimate knowledge of this Constitution, and you know our people venerate it. And so I need not discuss the Constitution of 1789.

The principles I wish to discuss pertain instead to the constitution with a small "c." This other constitution comprises the whole condition of our society, with all the conventions, customs, and beliefs that are the distinguishing mark of a free people. This is so even though many of these understandings and obligations cannot and ought not to be enforced by law in the formal sense.

This other constitution is the constitution that Plato and Aristotle and Hobbes and Locke talked of when they examined a society to see if it was decent and just. This other constitution of ours requires constant belief in certain precepts if the formal Constitution and its rule of law are to be secure. The bar has a special obligation to uphold these principles, and I wish to mention three of them.

First, we must insist on the responsibility of the individual. Freedom presupposes individual responsibility. A person must be held accountable for his or her actions. Personal responsibility is essential to define individuality. All persons within our society, including the young, must respect this idea. This is a principle that applies in our formal law, both civil and criminal, and in the whole sphere of private relations beyond the law's formal cognizance.

The issue arises in many contexts, but I will take as one example the defense of diminished capacity in criminal law. If it is to be acknowledged in the criminal law at all, the defense ought to be confined to the rarest of cases. James Q. Wilson recounts a criminal case in which a man was prosecuted for a crime alleged to have been committed while he was participating in a riot. He argued diminished capacity because he was caught up in the excitement and emotion of the whole thing. This is a strange twist of the rule of law.

Our society is a compassionate one and so it is tempted to excuse the individual from responsibility because of past injustice or persisting social ills. A concern with these deficiencies is necessary, if we are to improve our society, but this concern ought not be carried so far that the idea of personal, moral responsibility is eroded. We must not obscure the basic principle.

When our nation accounts to history, we will not have the defense of diminished capacity. And when our heroes are counted, they will be ones who recognized that individual responsibility is a celebration of freedom, not its denial.

The second and third principles that underlie the rule of law are rationality and civility. These principles in general apply in all social endeavors. The legal profession has a special obligation to be rational and civil because we seek to bring order to an otherwise fractious debate. Rationality and civility are the structure for the social order we seek to preserve and so these precepts must always be the hallmark of this profession. The commitment to rationality is a sweeping principle underpinning a free society. It no doubt implicates other essential values such as neutrality and detachment and, most important, honesty.

The whole idea of rationality is that a group of citizens united in law can examine a problem with adequate information and come to a reasoned, common conclusion. That is how we must proceed in the formal legal system, for instance in jury trials. The jury is one of the great institutions of the American constitutional system, and we must ensure that it continues to understand that it is exercising a function in rationality, not in passion.

Rationality, as I have indicated, extends far beyond the formal legal sphere. And it must shape and inform our public discourse. This is particularly so if we are to bring into public life the many decent and honorable lawyers who wish to engage in a dialogue but hesitate to do so if there are no guarantees of rationality and civility.

There are hundreds of thousands of lawyers with the simple honesty of Lincoln who should be encouraged to enter public life. Rationality should inform all the lawyer's discourse on subjects of legal improvement and proposals for legal change. And it is how citizens, particularly lawyers, ought to conduct our public discourse.

Few spectacles are more destructive of our professional standing than for a lawyer, or group of lawyers, to take a position on proposals to change the law based simply on the lawyer's own financial interests. The profession and the nation deserve your detached judgment.

Civility, the third principle, is related to rationality, if not a part of it. Civility is a popular word because it comes without political baggage or partisan implications. That is the whole point. The principles we are discussing must be sufficiently broad and overarching so that they can embrace a society and command a consensus, even though we have a diversity of views.

Diversity is the hallmark of a free society, and yet we must have certain principles in common if we are to sustain the rule of law. So its very acceptability shows that civility is fundamental, not trivial. Civility is not some casual idea, some little word to which we make a brief bow. It is not a one-hour continuing legal education course we take before rushing off to fractious debate. It is not a bumper sticker slogan: "Have you hugged your adversary today?" Civility is the mark of an accomplished and superb professional, but it is more even than this. Civility is an end in itself.

Civility stands for the proposition that we owe respect to our fellow citizen because of the humanity we share in common. Civility underscores the idea of individual worth and dignity, the idea which is the first premise of democratic theory.

Civility has deep roots in the idea of respect for the individual. We are civil to each other because we respect one another's aspirations and equal standing in a democratic society. We must restore civility to every part of our legal system and public discourse. Civility must always characterize the deliberations of this profession.

Civility defines our common cause in advancing the rule of law. Our honest and decent citizens must be persuaded to devote themselves to public life, but they will be reluctant to do so if our discourse is not marked by civility. If our own best people do not admire our discourse, neither will the people of other nations, the people who seek those principles that are the basis for common beliefs, principles vindicating the rule of law in their own societies.

Civility does not mean a lawyer's arguments must be lacking in force, nor does it overlook the vital role played by the lawyer or the citizen who must protest injustice. The idea of protest is essential in our legal tradition. Protest often contains a plea society would rather not hear, but that does not mean it lacks civility.

Inspired protest is protest against injustice, and injustice is itself gross incivility. The story of Antigone's burying her brother in defiance of a tyrant's unlawful command; the reality of Rosa Parks' dignified refusal to change her seat on the bus; the picture of the young Chinese student who stopped the tank just before the tragic tears of Tiananmen Square; the searing criticism of political leaders, written in the most civil of tones, by Wei Jingsheng from his jail cell in China--all these protests resonate in the American spirit.

We must remember this, however. Freedom may be born in protest, but it survives in civility. Which brings me back to the beginning. Law cannot live in the consciousness of a people without an abiding belief in the principles of individual responsibility, rationality, and civility. No group is more eager or more receptive to a recommitment and a rededication to the rule of law and to these principles than the present generation of law students and those who have just graduated.

I visit law schools in different regions and even different countries and have just finished teaching my own course in Europe. We had 120 students from 23 different law schools here and in other countries. After teaching for more than 35 years, I have not seen a generation with such moderation, decency, altruism, rationality, civility, and sense of civic duty. Many professors of law and professors in other disciplines share my view.

These young people, who soon shall be the primary trustees of our legal tradition, want to know that it will be an honor to be a member of the bar. If we now rededicate and recommit ourselves to belief in the law and its controlling principles, we will not disappoint them.

Our rededication and reaffirmation will be the basis for us to form a new alliance with all democracies, an alliance not of arms but of belief in uplifting standards that secure the law, the rule of law, the law which is the only means to sustain the progress of humankind.

Anthony M. Kennedy is an associate justice of the U.S. Supreme Court. This article was excerpted from a speech Justice Kennedy delivered at the American Bar Association's 1997 annual convention in San Francisco.