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.

About Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 25 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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