Favorite quotes about the law, part 1

Maybe it’s the frus­trat­ed nov­el­ist in me, but I’ve been think­ing about lit­er­a­ture and law.

This arti­cle is the start of a series where, once in a while and for no par­tic­u­lar rea­son, I will focus on thought pro­vok­ing and even pro­found state­ments (by oth­ers) about the law. Some­times the quo­ta­tions will be from lit­er­a­ture, and some­times they will be from legal writ­ings, philo­soph­i­cal works, and from darn near any­thing else that makes us think about the nature of law and its rela­tion­ship to society.

So let’s begin …

Grant Gilmore had one of the great legal minds of the twen­ti­eth cen­tu­ry, taught law at Yale, and draft­ed arti­cle 9 of the Uni­form Com­mer­cial Code. Espe­cial­ly the lat­ter would not seem to sug­gest that he was a great writer, but Grant Gilmore was an extra­or­di­nar­i­ly elo­quent guy. So here is the clos­ing pas­sage (page 111) of his book, The Ages of Amer­i­can Law (Yale 1977), and this is absolute­ly my favorite state­ment about law:

The bet­ter the soci­ety, the less law there will be. In Heav­en there will be no law, and the lion will lie down with the lamb. The val­ues of an unjust soci­ety will reflect them­selves in an unjust law. The worse the soci­ety, the more law there will be. In Hell there will be noth­ing but law, and due process will be metic­u­lous­ly observed.

The bet­ter we are, the less law we need. In a per­fect world, there will be no law. Grant Gilmore prob­a­bly was think­ing about James Madi­son’s famous state­ment in num­ber 51 of The Fed­er­al­ist Papers:

But what is gov­ern­ment itself, but the great­est of all reflec­tions on human nature? If men were angels, no gov­ern­ment would be nec­es­sary. If angels were to gov­ern men, nei­ther exter­nal nor inter­nal con­trols on gov­ern­ment would be nec­es­sary. In fram­ing a gov­ern­ment which is to be admin­is­tered by men over men, the great dif­fi­cul­ty lies in this: you must first enable the gov­ern­ment to con­trol the gov­erned; and in the next place oblige it to con­trol itself. A depen­dence on the peo­ple is, no doubt, the pri­ma­ry con­trol on the gov­ern­ment; but expe­ri­ence has taught mankind the neces­si­ty of aux­il­iary precautions.

If we were all angels, no law and no gov­ern­ment would be necessary.

I under­stand that both of these flights of elo­quence from Gilmore and Madi­son are exag­ger­a­tions. We can all envi­sion rea­sons why law and gov­ern­ment would be nec­es­sary even in the best of soci­eties. But their points still ring true. Law and gov­ern­ment both exist in large part because of the imper­fec­tions in all of us. Indeed, con­sti­tu­tion­al­ism is a reflec­tion of the fact that our founders rec­og­nized the imper­fec­tions in mankind. Our founders want­ed to empow­er the peo­ple to avoid tyran­ny, but they also dis­trust­ed the peo­ple and the pow­er that would accu­mu­late in even a demo­c­ra­t­ic gov­ern­ment. Read John Hart Ely’s Democ­ra­cy and Dis­trust on the founders’ use of the con­sti­tu­tion to restrain the abus­es of the pow­er­ful. Our founders both aspired to democ­ra­cy and dis­trust­ed democracy.

Drew M. Capuder
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