Saturday, March 02, 2013

Words Of Justice

Harvard Recognises Quranic Verse As One Of The Greatest Expressions Of Justice

Saint Augustine (Augustine of Hippo)  (November 13, 354 – August 28, 430)
“An unjust law is no law at all.”
Image of Augustine from the Nuremberg Chronicles. Beloit College.

Augustine of Hippo (354–430 CE) is considered one of the most influential writers of the early Church. He was raised and educated in the classical Roman tradition in Thagaste, part of the Roman province of Numidia in North Africa.  As a young man, he was a dedicated student of Latin literature and rhetoric, and he travelled to Carthage and later Rome to continue his studies.  Although Augustine did not initially follow his mother’s Christian faith, while in Rome he converted to Christianity in 387 CE. Later, he returned to North Africa and devoted his life to the Church. There he founded an ascetic community, was ordained and eventually rose to be bishop of the city of Hippo.  It is not surprising that Augustine is traditionally represented holding a book, since he was a prolific writer of theological works and pastoral letters.  Augustine wrote in an era when many Catholic rites and doctrines were still unsettled, and the Church was confronted by a number of schismatic movements. Many of his writings directly challenge these movements. De Libero Arbitrio (On Free Will), the source of the quote, is one of Augustine’s earliest Christian writings. In it he addresses free will, grace and divine foreknowledge—themes he would revisit in his writings throughout his life.

Qur’an  (622 CE)
“O ye who believe!Stand out firmly for justice, as witnessesTo Allah, even as againstPhoto of Group Veiled Women with a Baby, Artist Unknown, late 19th century. Brooklyn MuseumYourselves, or your parents,Or your kin, and whetherIt be (against) rich or poor:For Allah can best protect both.”

According to Islamic tradition, this surah (chapter), was revealed in Medina after the Prophet’s hijra (migration) from Mecca in 622 CE. As the name of this surah implies, An-Nisa’ mainly deals with the obligations and responsibilities of women in Islamic society, but it also touches on inheritance and family law along with slavery and temporary marriage. In this verse, the Qur’an is addressing the importance of truthfulness in testimony.

Magna Carta of King John, A.D. 1215
“To no one will We sell, to none will We deny or defer, right or justice.”

Illuminated initial from a fourteenth century copy of the Magna charta cum statutis angliae (Magna Carta with English Statutes)
King John agreed to the terms of Magna Carta in a field at Runnymede in June of 1215. John’s reign had been an unhappy one, marred by wars in France, ongoing financial difficulties, friction with the Church and conflict with his subjects. Many of his barons resented his heavy-handed attempts to assert royal authority and extract funds to support his military campaigns. By late 1214, the barons rose against King John’s arbitrary rule, and after months of negotiation and armed rebellion, the barons took the city of London, drastically weakening John’s position. Under duress, John agreed to negotiate the settlement that led to the Magna Carta. Today, many of the claims set forth in Magna Carta seem modest in scope. They address grievances against the king’s abuse of his powers over inheritance, fines and legal procedure.  Over time, however, these specific claims became less important than the underlying principles that recognized that royal power should be limited by the law.  By 1765, the great English jurist Sir William Blackstone cited “the emphatical words of the Magna Carta” to support his statement that “the law is in England the supreme arbiter of every man’s life, liberty and property. ” (Commentaries on the Law of England, I.137-138). The Magna Carta’s simple statement quoted here is now considered a founding principle in English constitutional law.

St. Thomas Aquinas  (1225 – March 7, 1274)
“Human law has the nature of law in so far as it partakes of right reason; and it is clear that, in this respect, it is derived from the eternal law.  But in so far as it deviates from reason, it is called an unjust law, and has the nature, not of law but of violence.”
Illuminated initial containing a portrait of Thomas Aquinas from MS Typ 443, Houghton Library, Harvard University

Thomas Aquinas (c. 1225–1274), one of the leading theologians of the High Middle Ages, was born in Italy as the younger son of a wealthy family. Like many younger sons before him, he was expected to make a career in the church, and was sent at the age of five to be taught at a Benedictine monastery. His family expected that he would eventually join and perhaps become abbot of the monastery.  Instead, Aquinas was attracted to the mendicant Dominican Order and fled to join them.  Although his family initially protested, going so far as to kidnap him back from the order, he remained committed and eventually became a Dominican friar.   Aquinas devoted his life to both teaching and learning, writing broadly on theology and philosophy and serving as a member of the faculty of the University of Paris.  In his teaching and writing, Aquinas reflected and synthesized the ebb and flow of ideas across medieval Europe.  The Summa Theologica is one of his masterworks; in it, he attempted to systematically address all of Christian theology as a unified whole.  The Summa is divided into three parts dealing with the 1) nature of God and creation, 2) human reason, acts and morality, including a section on the law, and 3) the life and incarnation of Christ.  This quote, from part 2 of the Summa, is part of a section in which Aquinas addressed the question of whether human law, created through human reason, ultimately originated in natural law. Although unfinished at the time of his death in 1274, the Summa was hugely influential on later philosophy, theology and literature

Benjamin Franklin   (January 17, 1706 – April 17, 1790)
“Laws too gentle are seldom obeyed; too severe, seldom executed.”

Portrait of Benjamin Franklin, 1785, by Joseph-Siffred Duplessis from the National Portrait Gallery
In addition to being a statesman/diplomat, inventor/scientist and founding father, Benjamin Franklin (1706-1790) was also a publisher. This quotation is one of many proverbs in his publication Poor Richards Almanac, issued annually from 1732 to 1758. This best-selling pamphlet in colonial America also contained weather, poems, puzzles, astrological/astronomical information and other items that made it a popular publication with the general public. The quotation, published in the 1756 Almanac, suggests the need for proportionality in sentencing and warns against extremes of punishment in society’s laws. It advises that penalties must be severe enough to deter people from the censured behavior, but not so severe that people are reluctant to enforce them. The quote is very similar to a statement by Lord Keeper Finch in 1742 in which he stated “In making of laws, it will import us to consider, That too many laws are a snare, too few are a weakness in the government; too gentle are seldom obeyed, too severe are as seldom executed…”   Most recently, the quote has been cited to lament attempts to greatly increase liability against company employees for massive environmental disasters rather than, perhaps more reasonably, focusing on disaster avoidance.
Joshua Fershee, Choosing a Better Path: The Misguided Appeal of Increased Criminal Liability After Deepwater Horizon, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 1 (2011),

Nelson Rolihlahla Mandela (born July 18, 1918)
Nelson Mandela reading the oath of office as he is sworn in as President of South Africa.
“Let there be justice for all.  Let there be peace for all.  Let there be work, bread, water and salt for all.  Let each know that, for each, the body, the mind and the soul have been freed to fulfill themselves.”

Nelson Mandela was born the son of the chief of the small village of Mvezo. As an adult, Mandela worked as a lawyer and became increasingly involved in the black majority’s struggle for equality and freedom, joining the African National Congress (ANC) in 1944. In 1948, the ruling National party passed legislation making apartheid the law of the land. In 1960, the government banned the ANC, spurring Mandela to propose and form a militant wing, for which he was sentenced to life in prison.
In 1990, after 27 years in prison, Mandela was freed and immediately set about resolving negotiations between the National government and the ANC, which ultimately set the stage for a true democratic government in South Africa. In 1993, Mandela and former President F.W. de Klerk won the Nobel Peace Prize.
These words were spoken by Mandela in his Presidential inauguration speech on May 10, 1994. Mandela was the first President in South African history to be elected through a fully represented vote, marking the official end of the apartheid government. In his speech, Mandela called for the people of South Africa to work together to rebuild the nation, and cautioned that no one could work alone and achieve success. Mandela was widely credited for harboring little bitterness for his time in prison and for actively bridging the gap between blacks and whites—never answering racism with racism.
Nelson Mandela, Presidential Inaugural Speech (May 10, 1994), in The Essential Nelson Mandela (Robin Malan ed., 1997).

Xunzi  (300 BCE – 230 BCE)
“Where laws exist, to carry them out; where they do not exist, to act in the spirit of precedent and analogy—this is the best way to hear proposals.
To show favoritism and partisan feeling and be without any constant principles—this is the worst you can do.  It is possible to have good laws and still have disorder in the state.  But to have a gentleman acting as ruler and disorder in the state—from ancient times to the present I have never heard of such a thing.  This is what the old text means when it says, “Order is born from the gentleman, disorder from the petty man.”
Image of Xunzi from a scroll by Deng Shiru from the Palace Museum, Beijing

Xun Kuang (荀況) (b. c. 300, China—d. c. 230 BCE), commonly referred to as Xunzi (“Master Xun”), was a classical Chinese Confucian philosopher born in the state of Zhao. He was eyewitness to the Warring States period of Chinese history, and the eventual decline of the Zhou dynasty, which had ruled China for more than 700 years.
Although Xunzi did initially adhere to his Confucian roots of philosophy, the influence of the politics, warfare, and assassinations during his lifetime helped develop Xunzi’s concept that human nature has an evil element, combined with a mentality bent on self-interest.  Xunzi asserted that this worldview was attained at birth, and consisted of instinctual drives which, if left to themselves, were anarchic and antisocial.  With this new assessment of human nature, Xunzi parted ways with the classical positivist Chinese masters such as Confucius and Mencius.
This quote, however, is a fine example of Xunxi’s later thoughts, which abandoned the complete hopelessness for human nature.  Xunzi stated that if “the nature of man is evil; his goodness is only acquired training.”  His writings, a book comprising 32 chapters simply know as Xunzi, applied his philosophy to the more practicable art of rulership.  The ruler, king, or gentleman, could overcome their innate evil nature, and rule justly, reasonably, and fairly, through reliance on education and “ritual action” to develop moral goodness.  Through the method described in the quote, a gentleman acting as ruler could develop into a disciplined and morally conscious human being.

Jonathan Swift  (November 30, 1667 – October 19, 1745)
“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”
Portrait of Jonathan Swift by Charles Jervas from the National Portrait Gallery, London

Jonathan Swift is regarded as one of the English language’s most accomplished satirists. Swift poked merciless fun at the hypocrisies he saw in the religious, political, educational, and legal institutions of his time. A Tritical Essay Upon the Faculties of the Mind was first published in 1711.  The Tritical (meaning trite) Essay resembles the commonplace books (a compilation of facts and maxims) kept by young gentlemen in the 17th and 18th centuries.  In Swift’s hands, however, the commonplace book becomes a satirical treatment of all would-be scholars who exhibited “moral and intellectual laziness” and “relied on historical parallels as a substitute for objective appraisal of contemporary events”.
While some researchers posit that Swift included clichés that had lost their force through endless repetition, others believe that “the thrust of the parody is not against the opinions offered but against the manner of the offering.” Still others point out that Swift, in creating this random and unreadable collection of quips, is mimicking the theory, becoming popular at the time, of the random creation of the universe.
Inclusion of this quote here might be construed as a warning to those who would approach legal scholarly thought without the proper effort and discipline.  Or perhaps it is an admonition not to take ourselves too seriously.

Terence (Publius Terentius Afer)  (195/4 BCE – 159 BCE)
“Rigorous Law is often rigorous injustice.”
Fresco of two female theater masks from the House of the Golden Bracelet, Pompeii

Publius Terentius Afer (195/4-159 BCE), commonly known as Terence, was a successful playwright in the Roman republic. He was born a slave in North Africa and was raised and educated in the home of Roman Senator Terentius Lucans who freed him when he became an adult. During his life, he was widely known for friendships with leading intellectuals and great men such as Caius Delius and Scipio Africanis.  Terence wrote six comedies that we know of today, all of which survive, that were staged to mixed acclaim in Rome.  They were “Greek-style” comedies of manners, adapted from the works of classical authors such as Appollidorus and Menander. Unlike other genres of Roman theatre, these comedies addressed human relationships in a day-to-day setting.  The Self-Tormentor, the source of this quote, deals with issues of love, duty and family rivalry through paired stories of fathers, sons, conniving slaves and secret lovers. In the play, the slave Syrus, in an attempt get money to pay for an earlier plot, tries to persuade Chremes, his master’s father, that he is obligated to pay a supposed debt incurred by another on his daughter’s behalf. Syrus forestalls any objections to the obligation, citing the common wisdom quoted here, that strict law can be unjust.  Terence left Rome by ship in 159 BCE, heading for Asia, but was never heard from again.  Caesar and Cicero praised him for the grace and purity of his language, although some critics claimed that his writing showed too much skill to have been written by a former slave. Nevertheless, his plays have been key texts in the study of Latin drama ever since.

Martin Luther King, Jr. (January 15, 1929 – April 4, 1968)
“Morality cannot be legislated, but behavior can be regulated.  Judicial decrees may not change the heart, but they can restrain the heartless.”
Photo of Martin Luther King, Jr. by Marion S. Trikosko

Baptist minister Martin Luther King, Jr. attained national recognition during the mid-1950’s as a symbolic leader of the civil rights movement in the United States. His career as a social activist ended when he was assassinated in Memphis, Tennessee on April 4, 1968 while supporting a strike for better wages as part of his Poor People’s Campaign.
This quotation comes from one of King’s sermons titled “On Being a Good Neighbor,” from “Strength to Love,” a compilation published in 1963. The sermons were written when twenty-six year old Dr. King was rising to national prominence after organizing non-violent boycotts of the segregated Montgomery bus system.
In 1957, King became the head of the Southern Christian Leadership Conference. He coordinated nonviolent direct action campaigns throughout the South, including the August 1963 March on Washington. King was awarded the Nobel Peace Prize in 1964. In his laureate address, King spoke of the award as an affirmation of his nonviolent efforts in the civil rights movement, “After contemplation, I conclude that this award which I receive on behalf of that movement is a profound recognition that nonviolence is the answer to the crucial political and moral question of our time – the need for man to overcome oppression and violence without resorting to violence and oppression…If this is to be achieved, man must evolve for all human conflict a method which rejects revenge, aggression and retaliation. The foundation of such a method is love….”.
Martin Luther King, Jr. 1964 Nobel Prize Acceptance Speech,

Hillel  (c. 60 BCE – 10)
“That which is hateful to you, do not to your fellow; this, in a few words, is the entire Torah, all the rest is but an elaboration of this one, central point.  Now, go and learn it.”    Portrait of Hillel the Elder by Arthur Szyk reproduced with the cooperation of The Arthur Szyk Society

One of the most important leaders and scholars of Jewish history, Hillel is traditionally thought to have been born in Babylon in 110 BCE and died in Jerusalem in 10 CE. Hillel is closely associated with the development of the seminal Jewish religious texts, the Talmud and Mishnah. He is more popularly known for several dictums; the one which is quoted here is Hillel’s “Golden Rule”. According to the Talmud, a man asked Hillel to explain the Torah to him while he stood on one foot. This maxim is Hillel’s distillation of Jewish moral law, as he considered brotherly love to be the kernel of Jewish teaching.

Gustavo Gutierrez (born June 8, 1928)
“Charity is today a ‘political charity’…it means the transformation of a society structured to benefit a few who appropriate to themselves the value of the work of others.  This transformation ought to be directed toward a radical change in the foundation of society, that is, the private ownership of the means of production.”
Photo of Gustavo Gutierrez
Dominican priest Gustavo Gutiérrez’ work with the predominantly poor Catholic community in Peru during the 1970’s was inspired by a practice of theology outlined in his 1971 book, A Theology of Liberation: History, Politics, Salvation.  Liberation Theology proposes a practical commitment to alleviating the economic and political oppression of the poor, in addition to attending to their spiritual needs. The practice generates awareness about conditions and structures of exploitation in order to begin the process of improvement or “irruption of the poor”.  Gutiérrez distributed his pastoral messages through the opinion pages in the Lima newspaper, La República during a period of political violence in Peru during the last two decades of the 20th century.
In 1968, Gutiérrez served as a theological advisor to the Second General Conference of Latin American Bishops (CELAM II) in Medellín, Columbia.  Historically, the Catholic Church had been structurally aligned with wealthy and politically oppressive South American governments. Through the bishops’ reform, the Church now professed a ‘preferential option for the poor’.   At CELAM III, held at Puebla de los Angeles, Mexico in 1979, the bishops confirmed the message of Medellín: ‘We affirm the need for conversion on the part of the whole church to a preferential option for the poor, an option aimed at their integral liberation.’
Gutiérrez currently holds the John Cardinal O’Hara Professorship of Theology at the University of Notre Dame.

Javolenus Priscus (born 60-70 CE)
“Every definition in civil law is dangerous; for it is rare for the possibility not to exist of its being overthrown.”
Detail of a mosaic floor from the Vatican Museum

Few details are known about the life of Javolenus Priscus, a leading jurist of the late first and early second century CE.  Born around 60-70 CE, he served the Roman Empire as a soldier, a provincial governor in Syria, Germany and Africa and as an advisor to three emperors, Nerva, Trajan and Hadrian.  He eventually became leader of the Sabinian school, one of classical Rome’s two leading schools of legal thought.  As a jurist, he furthered the development of Roman law by writing and teaching on legal issues, issuing legal guidance to judges and magistrates and assisting with practical legal matters such as drafting agreements and guiding litigants.  He also compiled a number of books of Epistulae (written legal opinions) and wrote commentaries on the works of earlier jurists. In the sixth century CE, the Emperor Justinian continued this tradition of commentary and compilation as part of his larger goal of clarifying and unifying the law of the Empire.  He appointed a commission to synthesize the works of the classical jurists into a single work that is now known as the Digest. Numerous excerpts from the writings of Priscus and other classical jurists were compiled into fifty books on various legal topics. In many cases, these excerpts are all that remains of the earlier works. The excerpt quoted here survives in the section of the Digest “Concerning the Different Rules of Ancient Law.”  The Digest forms a major part of Justinian’s Corpus Iuris Civilis, one of the founding sources of civil law.

Oliver Wendell Holmes, Jr. (March 8, 1841 –  March 6, 1935) Photo of Oliver Wendell Holmes, Jr. by Hardy, 1897
“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.  It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Oliver Wendell Holmes, Jr. (1841-1945), was a Supreme Court justice, as well as a Harvard Law School professor and alumnus. He also served on the Massachusetts Supreme Judical Court. This quote is from his seminal Harvard Law Review article, The Path of the Law, one of the most quoted works in legal scholarship.  Holmes, himself one of the most quoted Supreme Court justices, had a profound impact on American legal thought and jurisprudence.  Known for ushering in the concept of legal realism, he is thought to be an early supporter of law and economics theory and empirical legal studies.  A criticism of strict adherence to common law concepts of stare decisis and precedent, this quote suggests that law should be viewed as a living, breathing body, responsive to changing times, reflecting Holmes’ practical view of the law.  It represents a rejection of strict blackletter law (and legal formalism) and appreciation for statistics and economics as the rationale approach to studying law.
The Harvard Law School Library has undertaken a project to digitize its holding related to Holmes and his family. Some materials are already available at

Derek Bok (Born March 22, 1930)
“There is far too much law for those who can afford it and far too little for those who cannot.”     Portrait of Harvard President Derek Bok, 1982, Radcliffe Archives, Harvard University

Derek C. Bok (1930-present) was dean of the Harvard Law School from 1968 to 1971, President of Harvard University from 1971 to 1991, and served as interim president from July 2006 to June 2007. This quote appears in a Harvard Magazine article that was actually a reprint of his 1981-82 report to the university’s Board of Overseers. Known as the “Bok report,” it garnered quite a bit of media attention, particularly in the context of discussing the litigation explosion. The report laments the increasing complexity and expense of the U.S. legal system, the explosion of legal work, and the oversupply of lawyers, while the majority of citizens cannot afford legal services, are unable to benefit from the law, and lack access to the courts as a practical matter.  Bok likens the U.S. legal system to health care twenty years earlier when medicine had become effective and sophisticated but only affordable to the wealthy. The report also suggests that the oversupply of lawyers drains other more important professions and endeavors, with great loss to the country. Bok’s report and additional work helped usher in the growth of empirical, interdisciplinary studies, as well as greater commitment to public service in education at the university. Bok became the first Harvard University president to give his name to a center, Harvard’s Bok Center for Teaching and Learning, of which he was an active supporter during his presidency and remains so today.

Anatole France (April 16, 1844 – October 12, 1924)
“The law in its majestic equality forbids the rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread.”

Anatole France, dessin de Auguste Leroux

Anatole France, born François Anatole Thibault (1844—1924), took his nom de plume from his father’s bookshop Librairie de France. Known as a poet, novelist, journalist and best-selling author, he started his work life assisting his father in the family bookshop. After working as a cataloguer he became the librarian for the French Sénat. He was elected to the Académie française in 1896 and won the Nobel Prize for Literature in 1921. The Red Lily (Le Lys rouge), although not considered his best work, probes ideas that were very advanced for the time.

Immanuel Kant (April 22, 1724 –  February 12, 1804)
“There is, therefore, only one categorical imperative.  It is:  Act only according to that maxim by which you can at the same time will that it should become a universal law.”
Portrait of Immanuel Kant by Gottleib Doeppler, 1898

Immanuel Kant (1724-1804) was one of the preeminent philosophers of the 18th century.  Kant was born and spent the whole of his life in Königsberg Germany, where he was a Professor of Logic and Metaphysics, and later Dean, at the University of Königsberg.  After gaining prominence in the philosophical world with hisCritique of Pure Reason, published in 1781, Kant turned his metaphysical eye on morality.  His Foundations of the Metaphysics of Morals, published in 1785, introduced the idea of a morality based not on religious doctrine but on the innate sense of justice housed in every individual’s conscience.  To this day, Kant’s anti-elitist categorical imperative has a particular resonance in any democratic society governed by the rule of law.
Will Durant, Immanuel Kant and German Idealism, in The Story of Philosophy : The Lives and Opinions of the Greater Philosophers 253 (Pocket Books ed. 1991).


Simón Bolívar (July 24, 1783 – December 17, 1830)
“Slavery is the daughter of darkness; an ignorant people is the blind instrument of its own destruction. Ambition and intrigue exploit the credulity and inexperience of men totally bereft of political, economic, or civil knowledge.  They mistake pure illusion for reality, license for freedom, treason for patriotism, vengeance for justice.”
Simon Bolivar fighting Spanish royalist troops, detail of a mural by Franciso Leal, 1931-33

In 1783, Simón Bolívar was born to an aristocratic Spanish colonial family in what is now Venezuela. A soldier and statesman, he was one of the leading figures of the movement for South American independence.  As a young man, he was educated in the principles of the enlightenment and began to dream of liberation and unification for the people of                South America.  After travelling in Spain and France he returned and joined in a republican uprising that led to the establishment of a free federal republic of Venezuela. The first Republic fell to the Spanish, but the rebellion continued, and Bolívar commanded forces in a brutal contest against the Spanish, earning the name El Libertador. He eventually took power as one of the leaders of a restored Second Venezuelan Republic.  After it too failed, Bolívar went into exile, but continued to write and seek support for the revolution.  In 1816, he returned and resumed the fight for independence for Venezuela and New Grenada (now Colombia). By 1819, the revolutionary forces under Bolívar’s military and political leadership, had established a foothold in the city of Angostura (now Ciudad Bolívar, Venezuela).  Bolívar invited representatives from Venezuela and New Grenada to a Congress in order to re-establish and reorganize the civilian government and to develop a new constitution.  On February 15, 1819, Bolívar delivered his Address to the Congress at Angostura, in which he restated the ideals of freedom, equality and national sovereignty underlying the movement for independence and proposed a structure for a more centralized government that would avoid the weaknesses of the previous republic. In the section quoted here, Bolívar urged the Legislators to be mindful of how absolute power could deprive a people of the knowledge and skills for successful self-rule, and to consider carefully the structure of the future government.  The Congress of Angostura eventually led to the formation of Gran Columbia, a unified state covering parts of what is now Venezuela, Columbia, Ecuador, Peru and Brazil. Bolívar served as the first president of Gran Columbia and was also instrumental in revolutionary movements in Peru and in the founding of Bolivia.

William Murray, Lord Mansfield (March 2, 1705 – March 20, 1793)
“As the usages of society alter, the law must adapt itself to the various situations of mankind.”
Engraving of William Murray, Earl of Mansfield by Francesco Bartolozzi, 1786
William Murray, 1st Earl of Mansfield was an important figure in British law and politics during the Eighteenth Century. Of Scottish descent, he was educated at Christ Church, Oxford before becoming a law officer and politician. As Lord Chief Justice from 1756 to 1788, he oversaw many important cases, including Somersett’s Case, which declared slavery illegal in England and Wales. This quotation comes from his decision in Barwell v. Brooks(1784), a case questioning the legality of suing a married woman who was living separately from her husband, for a contract into which she entered. As a general matter, married women could not be sued; instead suit had to be brought against their husbands, but in this case, Lord Mansfield found that the husband had no liability and the suit could proceed directly against the woman.
As one scholar wrote, “With a clairvoyance that was remarkable, Mansfield set in motion changes in the current of judicial thought that still agitate us today. His whole judicial creed may be summed up by saying that he believed the great end of the law was to do justice. … The law, in order to serve its high purpose, required a continual adaptation to changing conditions.”
Edmund Rawlings Heward, Lord Mansfield 7 (1979).
Barwell v. Brooks, 3 Doug. 371-373 (1784).
Bernard L. Shientag, Lord Mansfield Revisited– A Modern Assessment, 10 Fordham L. Rev. 345 (1941),

Marcus Tullius Cicero (106 BCE – 47 BCE)
“The magistrates who administer the law, the jurors who interpret it – all of us in short—obey the law to the end that we may be free.”

MaBust of Marcus Tullius Cicero by Bertel Thorvaldsen as copy from roman original, 1799-1800rcus Tullius Cicero (106-47 BCE) is well- known today as a politician, philosopher and orator of the Late Roman Republic.  As a contemporary of Julius Caesar, Marc Antony, Sulla, and Pompey, he was both a participant and an observer in the tumultuous events that eventually led to the downfall of the Republic.  A large number of his orations and letters have survived, giving valuable insight into historical events and a unique view of Cicero’s character. Like many Roman politicians, Cicero developed his skills at rhetoric in the law courts. Several of his orations on behalf of his legal clients have survived.  This quote is from Pro Cluentio, in which Cicero defended a deeply unpopular client, Aulus Cluentius Habitus, against accusations that he had poisoned his stepfather, Oppianicus the Elder.  The case was the continuation of an earlier dispute in which the stepfather had himself been convicted, by a single vote, of attempting to poison Cluentius.  Cluentius was widely believed to have bribed the jury in the earlier case.  The case had political implications and had the potential to exacerbate tensions between the classes.  Cicero cast doubt on the accusation by proposing that his client was the victim of a conspiracy plotted by his depraved and cruel mother.  In this quote and in the rest of the oration, he argues for concordia ordinum -harmony between the orders-a political ideal that became identified with Cicero.

Elizabeth Cady Stanton (November 12, 1815 – October 26, 1902)
“To make laws that man can not and will not obey, serves to bring all law into contempt.”
Photo of Elizabeth Cady Stanton and Susan B. Anthony together by J.H. Kent

Elizabeth Cady Stanton (1815-1902) was one of the leaders of the suffrage movement in the United States. Stanton organized the first women’s rights convention in Seneca Falls, New York in 1848, and helped found the National Women’s Suffrage Association, serving as its president for over 20 years. Throughout her life she wrote and spoke prolifically in support of women’s rights. Departing from other women’s rights activists of her day who focused only on suffrage, Stanton tirelessly fought against gender inequalities in education, religion, society, and the law.
Among her many seminal publications, Stanton wrote A Declaration of Rights and Sentiments, a document that framed the women’s rights movement in the language of liberty used in the Declaration of Independence. She also authored The Women’s Bible, a critique of Christian teachings in light of women’s rights. This quotation comes from a speech in support of legal reform to allow for divorce that Stanton delivered to the Tenth National Woman’s Rights Convention in 1860. In her speech, Stanton argues that by attempting to control personal choices, such as leaving an unhappy marriage, governments call into question compliance to all laws: “A very wise father once remarked, that in the government of his children, he forbade as few things as possible; a wise legislation would do the same. It is folly to make laws on subjects beyond human prerogative, knowing that in the very nature of things they must be set aside.”

Michel Foucault (October 15, 1926 – June 25, 1984)
“Justice must always question itself, just as society can exist only by means of the work it does on itself and on its institutions.”
French social theorist Michel Foucault participated actively in the cause of French prisoner Roger Knobelspiess, who was sentenced in 1972 to fifteen years in prison on charges of robbery. Knobelspiess was subjected to solitary confinement in a quartiers de haute sécurité or QHS (high security) prison. Foucault considered the harsh conditions and video surveillance within the QHS facilities to be a form of torture and an abuse of law, in part because QHS sentencing was decided not by the courts, but through internal prison administration. Foucault later analyzed incarceration in terms of social context and abusive power relationships in his major work published in 1975,Discipline and Punish: The Birth of the Prison.
When Knobelspiess’ case came to trial in 1981, the pardon that he received from François Mitterand provided him with celebrity status. However, in June 1983, Knobelspiess was again arrested for armed robbery and was sent to jail, an event, which prompted a response from Foucault in the French newspaper, Libération. This quote is from Foucault’s article “You Are Dangerous” (“Vous êtes dangereux”). Foucault writes of his dismay that so many people were surprised by the new charges against Knobelspiess. He protests that it would be irrational to assume that Knobelspiess was guilty of the earlier charges simply because of his second arrest: “You are a danger to yourselves and a danger to us, if, that is…you do not wish to find yourself in the hand of a legal system that has been put to sleep by arbitrariness. You are also a historical danger. For, like a society, a justice which has to question itself can exist only if it works on itself
and its institutions.”
David Macey, The Lives of Michel Foucault 420-421(1993).
Gary Rosenshield, Western Law, Russian Justice: Dostoevsky, the Jury trial, and the Law 107 (Univ. Wis. Press 2005).
Michel Foucault, Vous êtes dangereux, Libération, June 10, 1983, at 20.

George Eliot (Marian Evans) (November 22, 1819 – December 22, 1880) Illustration "Waiting at the River" by Frederic Leighton
“Who shall put his finger on the work of justice, and say, ‘It is there?’  Justice is like the Kingdom of God – it is not without us as a fact, it is within us as a great yearning.”

George Eliot was the pen name of popular English author Marian Evans (1819 – 1880) who wrote seven novels and multiple short works of poetry and fiction during her lifetime. Romola was Eliot’s fifth published novel and was set in 15th century Florence during the dominance of religious leader Girolamo Savanarola. Eliot uses this historical background to explore the themes of betrayal, vengeance, and justice. After an angry mob chases the villain of the novel off a bridge and into the river Arno, he washes up yards away from the adopted father he has woefully mistreated. The father has been kept alive by his desire for revenge and as soon as he exacts it he expires upon his adopted son’s corpse. It is at this junction in the story that Eliot turns from the action and addresses the reader with her striking comment on justice.

Oscar Romero (August 15, 1917 – March 24, 1980)
“Peace is not the product of terror or fear.  Peace is not the silence of cemeteries.  Peace is not the silent result of violent repression.  Peace is the generous, tranquil contribution of all to the good of all.  Peace is dynamism.  Peace is generosity.  It is right and it is duty.”
Photo of Monsignor Oscar Romero giving communion to a parishioner in El Salvador, 1980 by Valente Cotera

This quotation was recorded on January 8, 1978 when Oscar Arnulfo Romero was Archbishop of San Salvador. Romero was a vocal opponent against poverty, social injustice, assassinations and torture. He often spoke out for peace and human rights, either during Mass or to an expanded audience through his radio broadcasts during a time of increasing civil unrest and growing political violence in El Salvador.
On Sunday March 23, 1980 Romero made the following appeal: “Brothers, you are from the same people; you kill your fellow peasants…No soldier is obliged to obey an order that is contrary to the will of God…In the name of God, in the name of this suffering people, I ask you—I implore you—I command you in the name of God: stop the repression!”  Romero’s request was perceived as a political call to mutiny. He was assassinated the next day as he celebrated Mass at a Salvadoran hospital.
In 2003, the Center for Justice and Accountability filed a civil action against one of the architects of Romero’s assassination, former Salvadoran Air Force Capt. Álvaro Rafael Saravía, after he was discovered, living in California.  Saravía disappeared after the Complaint was served.  In September 2004 a U.S. federal judge found Saravía liable for Archbishop Romero’s murder and issued a default judgment in the order of $10 million in compensatory and punitive damages. Salvadoran President Elías Antonio Saca González refused to reopen the case in his country, stating, “Opening up the wounds of the past wouldn’t do any good for a country that is looking to the future.”

Mohandas Karamchand Gandhi (October 2, 1869 – January 30, 1948)
“An unjust law is itself a species of violence.”

Photo of Mohandas K. Gandhi
The years from 1942 until his assassination in 1948 were ones in which Gandhi “saw the full flowering” of his philosophy of non-violence. In August 1942, before the All-India Congress in Bombay, Gandhi delivered a speech calling on the British to voluntarily withdraw from India and for the Indian public to peacefully protest until the British complied. When the British government arrested Gandhi and other Congress leaders, the public responded with strikes and demonstrations, during which the British government arrested over 100,000 people. While the Quit India movement did not immediately result in India’s emancipation, it was successful in mobilizing and uniting the Indian people in their fight for independence from British rule.
The quote is taken from Gandhi’s response to this question posed to him in 1946: “Non-violence in your opinion is not cowardice, but it is a form of resistance to injustice. You have admitted that it is wrong to arrest and imprison innocent persons which civil resisters are. And you have cheerfully courted arrest and imprisonment. Is this not inconsistent and cowardly?”
In his response, Gandhi countered that an unjust law is a type of violence and “arrest for its breech is even more so.” Gandhi believed that violence should be resisted not by counter violence but by non-violence; thus, submitting peacefully to arrest “is an essential condition of non-violence, not a symptom of cowardice.”
M.K. GANDHI, NON-VIOLENCE IN PEACE & WAR 92 (1958) (1942-49), Publishers’ note.
Making Britain, The Open University, 1942 Quit India Movement,

Anonymous African Proverb
“Corn can’t expect justice from a court composed of chickens.”

Photo of woman with corn and chickens from World Vision Australia
Proverbs are a colorful and dynamic feature of most African cultures. They are used by educators and parents to teach children the mores and ethics of society, by elders and political leaders to showcase their knowledge, and by lawyers and judges to ground their arguments and decisions in common wisdom.  Scholars have documented the extensive use of proverbs in Nigerian tribal courts, and found that litigants who skillfully used proverbs to illustrate their points could gain an advantage over less eloquent speakers. This anonymous proverb, commonly used in Nigeria, is similar to one attributed to the Cape Coast in Ghana: “The chicken is never declared innocent in the court of hawks.” It has been “used to express the fact that among your enemies or potential adversaries, you cannot expect to be treated fairly.” It might also be used to point out the differences between races or genders in legal systems, or between the powerful and powerless. For example, a poor black man accused of theft might find it difficult to exact a fair verdict from a panel of middle or upper class whites.
John C. Messenger Jr., The Role of Proverbs in a Nigerian Judicial System, Southwestern Journal of Anthropology, Vol. 15, No. 1 (Spring, 1959), pp. 64-73
Kwesi Yankah, Proverb Rhetoric and African Judicial Processes: The Untold Story, The Journal of American Folklore, Vol. 99, No. 393 (Jul. – Sep., 1986), pp. 280-303
Gomiluk Otokwala, HLS ’10

Anacharsis (600 BCE – 501 BCE)
“Written laws are like spiders’ webs, and would catch the weak and poor, but easily be broken by the mighty and rich.”

Greek vase with runners at the Panathenaic games 530 BCThe philosopher Anacharsis was known in ancient world for his wisdom, quick wit and pithy observations. Born into a noble family in Scythia he travelled to Greece during the 47th Olympiad (592-589 BCE). As an outsider, he brought a fresh perspective and plainspoken sensibility to contradictions of daily life invisible to native Greeks.  Although we do not have any of his original writings, many ancient authors quoted his observations, and some even included him among the leading sages of Ancient Greece.  In his travels, Anacharsis became great friends with the Athenian leader Solon.  Plutarch reports that, upon learning of Solon’s efforts to develop a written code of law, Anacharsis responded with the quote on our wall, comparing the law to a spider web. Solon replied that “Men keep their agreements when it is an advantage to both parties not to break them; and he would so frame his laws, as to make it evident to the Athenians that it would be in their interest to observe than transgress them.” Plutarch goes on to observe, however, that the short life of Solon’s reforms after he left power proved that Anacharsis was closer to the truth than the hopeful Solon.  Anacharsis eventually returned to Scythia, where he was killed by his brother the king.  Some sources indicate that he was killed for observing Greek religious rites upon his return.

Bandamanna Saga (c. 1000 CE)
“Which carries greater weight, the two clauses concerning truth and justice, or the one that concerns the letter of the law?”
1590 map of Iceland, commonly attributed to Map of Iceland commonly attributed to Bishop Gudbrandur Thorlaksson

The Bandamanna Saga (or Story of the Confederates) is one of the Sagas of the Icelanders that takes place in the Saga Age of the 10th and early 11th centuries. These oral histories were finally set down in written form two centuries later. The Bandamanna Saga is especially interesting as the only one that takes place after most of Iceland converted to Christianity.
This saga illustrates the workings of the early Icelandic legal system as the story revolves around a law suit, bribery and the pitfalls of procedural technicalities.

Nadine Gordimer (Born November 20, 1923)Portrait of Nadine Gordimer, 1986,
“In a democracy – even if it is a so-called democracy like our white-élitist one – the greatest veneration one can show the rule of law is to keep a watch on it, and to reserve the right to judge unjust laws and the subversion of the function of the law by the power of the state.  That vigilance is the most important proof of respect for the law.”

A 1991 winner of the Nobel Prize for Literature, Nadine Gordimer is one of South Africa’s preeminent authors. Growing up in South Africa during apartheid as a member of the white middle class, Gordimer wrote about the deep racial divide in her country in her many novels, short stories, and essays. An outspoken critic of apartheid, Gordimer said these words during an Academic Freedom Lecture given at South Africa’s University of Natal in 1971. These lectures were typically hosted by English-language universities in South Africa in the 1970s in an attempt to “reaffirm their commitment to the renewal of academic freedom….”  The title of the lecture was “Speak Out: The Necessity for Protest.”  During the course of her lecture, Gordimer commented on the hypocrisy of white academics who believed that apartheid was wrong but did very little to protest against it, because, they claimed, they respected the law. She felt this “respect” was a sham; and only served to give those fearful of retribution an excuse not to act.

Sir William Blackstone (July 10, 1723 – February 14, 1780)
“It is better that ten guilty persons escape, than that one innocent suffer.”
Portrait of Sir William Blackstone by  S. Arlent Edwards, 1896.
Sir William Blackstone (1723-1780) was considered the preeminent English scholar and the most authoritative speaker on common law. This quote is from his Commentaries on the Laws of England, which was highly influential in the development of U.S. law. It is comprised of four “books” divided into rights of persons, the rights of things, of private wrongs, and of public wrongs. Early American lawyers looked to the Commentaries as an authoritative source and it was used as a textbook in legal education in both England and America. It is still cited as a source of authority on the history of English law. The Anglo-American concept of “reasonable doubt” is reflected in this quote, which also known as “Blackstone’s ratio”. It is seen quoted in legal opinions and scholarship to this day. The quote acknowledges the tradeoff in a criminal justice system where one accepts a certain number of false acquittals compared to false convictions. Similar principles were suggested by predecessors such as Justice Hale, Fortescue and Voltaire with varying “ratios”.

Hannah Arendt (October 14, 1906 – December 4, 1975)
“To abolish the fences of laws between men – as tyranny does – means to take away man’s liberties and destroy freedom as a living political reality; for the space between men as it is hedged in by laws is the living space of freedom.”
German postage stamp honoring Hannah Arendt

Hannah Arendt fled Germany for Paris in 1933 after finishing her dissertation in philosophy and shortly after being interrogated by the Gestapo. While living in France, she helped Jewish refugee organizations until after the outbreak of World War II. In 1941, she left France for New York, after being briefly detained in Southern France as an “enemy alien”. In 1944, she began work on what would become her first major work as a political theorist on the nature of power and its potential for abuse. Arendt’s The Origins of Totalitarianism (Elemente und Ursprünge totaler Herrschaft) was published in 1951, the year after she became a U.S. citizen.
Arendt’s Origins of Totalitarianism was original in its efforts to analyze the philosophical and historical concept of totalitarianism through similarities, rather than differences in the regimes of German Nazism and Russian Stalinism.  The book is divided into three parts: Antisemitism; Imperialism; and Totalitarianism.  This quote comes from a chapter in part three, titled Ideology and Terror: A Novel Form of Government.  In dissecting the power structure of the Nazi and Stalinist regimes, Arendt identifies total terror as being the essence of totalitarian governments. In contrast to the benign “fences” created by law in a democratic society to govern the interactions of its people, totalitarian governments use terror to herd citizens into a powerless, cowed mass of humanity; the “One Man” into which individual freedom and dignity disappear.

Via: "Harvard Law School"

No comments: