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.
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.
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