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University of South Carolina Commencement 5/12/90 [OA 6898] [2]
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BUSH PRESIDENTIAL MATERIALS PROJECT
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AUDIOVISUAL COLLECTION
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UNIVERSITY of South CARoliNA YeARbook CeNteR Stage
Vol. 91 1989
PlAced IN Row 12 SHELF 13
SERIES
Bush PRESIDENTIAL RecoRds
BOX NO.
Office of Speechweiting
1990 Box 20
FILE FOLDER TITLE: Speech File - Backup
UNIVERSITY of South CAROliNA Commencement
5/12/90
[OA 6898 ]
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CENTER FOR LAW AND NATIONAL SECURITY
SCHOOL OF LAW, UNIVERSITY OF VIRGINIA, CHARLOTYESVILLE VA. 22901 (804)924-4748
FAX: (804) 924-7362
N NORTON MOORE
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Cover + 23 pages
CLNS/CULP/LUS
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May 3,90 15:53 No.002 P.02
FINAL
The Rule of Law: An Overview
BY
JOHN NORTON MOORE
Walter L Brown Professor of Law
University of Virginia School of Law
and
Chairman of the Board of Directors
United States Institute of Peace
AS
Co-Chairman of the American Delegation
to the Seminar on the Rule of Law
Moscow and Leningrad
March 19-23, 1990
The views expressed in this paper are those of the author and
do not necessarily reflect the views of the United States
government, the United States Institute of Peace, the
University of Virginia, or any other organization with which
the author is or has been affiliated.
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"[W]hile the laws shall be obeyed all will
be safe."
Thomas Jefferson
Original draft of first Inaugural Address, March 4, 1801,
in 8 THE WRITINGS OF THOMAS JEFFERSON 1 (P. Ford ed. 1897).
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The Rule of Law: An Overview
JOHN NORTON MOORE
I. Introduction
The world has long admired the rich cultural and artistic heritage of the peoples of the
Soviet Union, a heritage including writers, poets, and composers such as Tolstoy, Chekhov,
Pushkin, Dostoyevsky, Tchalkovsky and Brodsky, and the artistic brilliance of a Bolshoy
Ballet. As has been most evident in the Helsinki process, however, there has been great
international concern about the protection of fundamental human rights and freedoms within
the Soviet Union as well as about maintaining and promoting world order and the principles
of the United Nations Charter. For these reasons the ongoing International and structural
changes broadly identified with President Mikhail Gorbachev and programs of "glasnost" and
"perestroika" have been warmly received in the United States and elsewhere in democracies
throughout the world. The peoples of these democracies profoundly hope that these programs
will succeed-not simply endure-in transforming Soviet institutions to meet the concerns on
which there has been continuing engagement within the Helsinki process. In this connection,
no tenet of reform has seemed more promising than commitment to the rule of law, the
subject of these discussions. As recently stated by Foreign Minister Shevardnadze:
And surely no one can doubt that it [National strength] lies most of all in a
renewed, democratic, rule-of-law society, in a free people, in the free man.¹
Perhaps it is no coincidence that this focus on the rule of law-and indeed this welcome
discussion on the rule of law-takes place under the first Chairman in recent Soviet history
to be a lawyer.
The language of diplomacy is frequently a language of subtlety, Indirection and omission.
The language of friendship, however, is a language of candor. As you can see, I have chosen
the language of candor and I deeply hope that this essential element of friendship will be a
hallmark of this path-finding exchange on the rule of law. As the Helsinki Final Act affirms,
the participating states "will respect each other's right freely to choose and develop its
political, social, economic and cultural systems as well as its right to determine its laws and
regulations." It is for the people of the Soviet Union to make the choices about fundamental
1Excerpt from an October 23 Foreign Policy Report of Soviet Foreign Minister E. A.
Shevardnadze entitled "Foreign Policy and Perestroyka" reportedly delivered to a plenary
session of the Supreme Soviet in Moscow.
1
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institutions and legal structures for their own society, consistent, of course, with the
fundamental commitments of the Helsinki process and international human rights covenants.
Indeed, it is a certainty that no outside group can be sensitive to all of the factors affecting
those choices. Nevertheless, I profoundly believe that the experience of the United States in
implementing the rule of law-an experience recently proudly celebrated in the bicentennial
of our Constitution-can be of great importance for the people of the Soviet Union as you
open up issues concerning the rule of law in Soviet society-just as the international
commitments made in the Helsinki process and In adherence to fundamental human rights
covenants are of great importance. In that spirit, I hope that these discussions between
American and Soviet experts will be followed by even more specific discussions on each of
the components of the rule of law. And I hope that to be most useful for all parties these
discussions will be full and frank.
The overview discussion which follows will first set forth what I believe to be major
tenets of the rule of law. It will then consider some essential components of limited
government and individual rights and freedoms in a representative democracy and some
essential components of the rule of law within an independent and democratic judicial
process. Finally, it will note the importance of the rule of law in international affairs and of
a robust legal profession. Throughout, this paper is guided by a spirit of candor, Irrespective
of any possible philosophical differences perceived between and possibly even within
delegations.
II. Major Tenets of the Rule of Law
The "rule of law" collectively symbolizes the most important features of democratic
governance. Its core meaning is that governmental decisions must be rooted in the consent
of the governed, acting only through structures and procedures designed to prevent individual
oppression or governmental tyranny, which protect fundamental rights and freedoms, and
which are subject to appraisal by an independent judiciary rendering judgments based on law.
It stands in contrast to decisions based on naked power, arbitrary fiat, political expediency or
personal gain. But most meaningfully, It encompasses much more than simply the opposite
of these negative images. Individual judgments differ as to the core underpinnings of the rule
of law, but I believe there are at least five principal tenets-each with a number of
fundamental sub-tenets. These five highest-level tenets are:
government of the people, by the people, and for the people;
separation of powers and checks and balances;
2For the origin of this phrasing, see President Abraham Lincoln's Gettysburg Address,
November 19, 1863.
2
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representative democracy and procedural and substantive limits on governmental
action against the individual (the protection of human freedom and dignity);
limited government and federalism; and
review by an independent judiciary as a central mechanism for constitutional
enforcement.
Let us review each of these basic general tenets in turn.
government of the people,
by the people, and for the people
Overwhelmingly, philosophers and political theorists have rooted the authority of
democratic governance in the people-not in the few or an assumed elite. Thus, to Aristotic
in democracies the people are supreme =3 John Locke viewed government as being
based on popular consent and wrote that governmental actions exceeding the laws are
"without authority. In a famous phrase discussing abuse of power, he concluded:
"[w]herever law ends, tyranny begins a5 Echoing these premises, the American
Declaration of Independence provides:
We hold these truths to be self-evident, that all men are created equal; that
they are endowed by their Creator with certain unalienable rights; that among these
are life, liberty, and the pursuit of happiness. That, to secure these rights,
governments are instituted among men, deriving their just powers from the consent
of the governed
6
Adopted less than three weeks earlier, the Virginia Bill of Rights =7 provides: "[t]hat all power
is vested in, and consequently derived from, the people
This is emphatically not the
concept of the unchallengeable general will underlying the philosophy of Jean Jacques
Rousseau under which "the public must be taught to know what If wants."8
³ARISTOTLE, POLITICS (ca. 325 B.C.).
4J. LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT (1690).
⁵Id.
The Declaration of Independence (U.S. July 4, 1776).
From Article 2 of the Virginia Bill of Rights (June 12, 1776).
8JJ. ROUSSEAU, THE SOCIAL CONTRACT (1762). Needless to say, the Western democratic
conception of "government of the people, by the people, and for the people" also is
emphatically not the inverted social contract of Rousseau as reflected in his social contract
3
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Corollaries of this first principle that the authority of law comes from the governed are:
constitutions should embody the fundamental compact with the people-such
constitutions should serve as the highest form of law to which all other laws and
governmental actions must conform. As such, constitutions should embody the
fundamental precepts of a democratic society rather than serving to incorporate ever-
changing laws more appropriately dealt with by statute. Similarly, governmental
structures and actions should seriously conform with constitutional norms, and
constitutions should not be mere ceremonial or aspirational documents;
legislatures and chief executives should be popularly elected under a system which will
ensure frequent accountability. Elections must in practice be fully fair, open and
meaningful. Mechanisms, such as initiative and recall, might be devised to keep
elected officials close to the people;
there should be no merger of B political party with the state or control of the
electoral process by a political party. It is the freely elected representatives of the
people, acting through governmental structures such as the legislative and executive
branches, which should govern the state; and
the constitutional system should provide for reasonable change and amendment as
conditions and the popular will change.
separation of powers and checks and balances
A principal underpinning of much writing on democratic governance and the rule of law
is that governmental structures should be constructed through a separation of powers and
checks and balances to prevent governmental tyranny. Thus, Montesquieu wrote in The Spirit
of the Laws in 1748:
The political liberty of the subject is a tranquillity of mind, arising from the
opinion each person has of his safety. In order to have this liberty, it is requisite
the government be so constituted as one man need not be afraid of another.
When the legislative and executive powers are united in the same person, or
in the same body of magistrates, there can be no liberty; because apprehensions
may arise, lest the same monarch or senate should enact tyrannical laws, to execute
them in a tyrannical manner.
Again, there is no liberty, If the judicial power be not separated from the
legislative and executive. Were it joined with the legislative, the life and liberty of
the subject would be exposed to arbitrary control; for the judge would be then the
oath for his proposed Constitution for Corsica, which provides: "I join myself, body, goods,
will and all my powers, to the Corsican nation, granting her ownership of me, of myself and
all who depend on me." Printed in C.R. VAUGHAN (ed.), 2 THE POLITICAL WRITINGS OF
ROUSSBAU 250 (2 volumes, Cambridge, 1915). See also Chapter 1 in P. JOHNSON,
INTELLECTUALS (1988).
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legislator. Were It joined to the executive power, the judge might behave with all
the violence of an oppressor.
The connection between this principle of separation of powers and the rule of law was vividly
reflected in the Constitution of the State of Massachusetts adopted in 1780:
In the government of this Commonwealth, the legislative department shall never
exercise the executive and judicial powers, or either of them: The executive shall
never exercise the legislative and judicial powers, or either of them: The judicial
shall never exercise the legislative and executive powers, or either of them: to the
end It may be a government of laws and not of men.¹⁰
And this principle was a major underpinning of the United States Constitution. As James
Madison wrote in The Federalist papers, explaining the new Constitution:
No political truth is certainly of greater intrinsic value or is stamped with the
authority of more enlightened patrons of liberty than that on which the objection
is founded. The accumulation of all powers legislative, executive and judiciary in
the same hands, whether of one, a few or many, and whether hereditary, self
appointed, or elective, may justly be pronounced the very definition of tyranny.
Were the federal constitution therefore really chargeable with this accumulation of
power or with a mixture of powers having a dangerous tendency to such an
accumulation, no further arguments would be necessary to Inspire a universal
reprobation of the system 11
Similarly, this principle was a fundamental tenet of the 1789 French Declaration of the Rights
of Man where it was said: "Any society in which the guarantee of the rights is not secured,
or the separation of powers not determined, has no constitution at all."12
It should be noted that the principle of separation of powers does not stand in
opposition to a strong legislature or a strong executive. Indeed, it is partly rooted in the
functional attributes and efficiencies of each branch in respectively making, applying and
enforcing the laws (as well as the executive role in foreign affairs). And it is critically
complemented by checks and balances, such as, for example in the American system. the right
of the Executive to veto legislation, the right of the Senate to withhold advice and consent
MONTESQUIEU, THE SPIRIT OF THE LAWS (1748).
10The Constitution of the Commonwealth of Massachusetts, "Part the First," art. XXX
(1780), reprinted in M. CONNOLLY, THE CONSTITUTION OF THE COMMONWEALTH OF
MASSACHUSETTS 3, 10 (1984).
11 THE FEDERALIST No. 47, at 324 (J. Madison) (J. Cooke ed. 1961).
12 Article 16 of the Declaration of the Rights of Man and the Citizen (August 26, 1789).
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to a treaty, and the requirement that Congress rather than the Executive "declare War" and
"raise and support Armies." It should also be noted that an independent judiciary is a major
corollary of this principle of separation of powers. Moreover, the Framers of the United
States Constitution, recognizing the potential great power of the legislature in making laws,
provided checks and balances even within the legislature by providing for a bicameral
legislature elected by differing constituencies and for different terms. Finally, It should be
noted that if separation of powers and checks and balances are avoided by unitary party
control of all branches of government then the benefits of this fundamental underpinning of
the rule of law could be easily lost. This is yet another reason for avoiding a merger of a
political party with the state.
representative democracy and
procedural and substantive limits on
governmental action against the individual
(the protection of human freedom and dignity)
Every democracy faces the problem of how to protect fundamental human freedom and
dignity against governmental action-whether arbitrary or mandated by a majority. The most
important and recurrent answer to this issue has been to provide constitutional guarantees
of basic human freedoms-frequently denominated as a "bill of rights." Other partial answers,
however, Involve building in checks against factionalism and hasty laws through representative
democracy, bicameralism and cautious modes of legislative deliberation and action, as well as
endowing government only with limited authority not extending to compromising such basic
freedoms. Among other examples of a "bill of rights" approach, in 1215 the Magna Carta
extracted a series of rights as pledges from a reluctant King John. This included the rights:
No free man shall be taken or imprisoned or dispossessed, or outlawed, or
banished, or in any way destroyed, nor will we go upon him, nor send upon him,
except by the legal judgment of his peers or by the law of the land.
To no one will we sell, to no one will we deny, or delay right or justice. 13
Similarly, following the revolution of 1688, the British Parliament extracted a "bill of rights"
from the Crown. The State of Virginia adopted the Virginia Bill of Rights in 1776; in 1789
during the early months of the French Revolution, the National Constituent Assembly
formulated a "Declaration of the Rights of Man and of the Citizen"; and following a major
debate about the new Constitution, the first Congress of the United States formulated the Bill
of Rights which was ratified by the states effective December 15, 1791. Next year America will
celebrate the bicentennial of this Bill of Rights of fundamental freedoms. Time has confirmed
13Magna Carta, nos. 39 & 40 (1215) (numbers omitted).
6
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their importance to an enduring democratic government. It should also be noted that the
protection of fundamental rights extends both to substantive and procedural rights, including
essential procedural elements incorporated in American law in the concept of due process
of law. The cornerstone of the criminal justice system, as well as of administrative law, is
these concepts of procedural due process. Finally, it should be noted that protection of
fundamental liberties is seen as sufficiently essential to democratic governance and the rule
of law that many political theorists have stressed the protection of such freedoms as a
fundamental objective of democratic governance without which no government can be just.
Aristotle wrote in Politics: "The basis of a democratic state is liberty: which, according to the
common opinion of men, can only be enjoyed in such a state;-this they affirm to be the great
end of every democracy."14 The Declaration of Independence speaks of securing "life,
liberty, and the pursuit of happiness" as the very reason for government, and the preamble
of the United States Constitution includes among the reasons for establishing the
Constitution: to "secure the Blessings of Liberty to ourselves and our Posterity
Certainly there can be no meaningful rule of law which does not protect fundamental human
freedom and dignity as a very reason for government.
limited government and federalism
Yet another underpinning of the rule of law is the related principles of limited
government and federalism. As has just been discussed, the principle of a limited government
of enumerated powers has been one partial answer to the protection of fundamental
freedoms. Indeed, in The Federalist papers, Alexander Hamilton urged that the limited powers
of the new federal constitution made a specific bill of rights unnecessary. Limited central
government, however, serves another important function in the rule of law in maximizing
regional and local control of governmental functions principally affecting peoples at a local
level. In this context, limited government and federalism divide governmental authority
between a central government, which should have authority in issues of defense, foreign
policy, interstate commerce and other issues of governance affecting citizens on a national
basis, and regional and local governmental authorities, which should have authority in issues
of governance such as municipal services and education primarily affecting citizens on a more
local basis. This principle simultaneously makes government more responsive to and
controllable by the people and encourages a diversity in public policies adopted within
different regions according to local conditions, needs, traditions and desires. It directly
incorporates an insight of participatory democracy that groups affected by decisions should
have a voice in those decisions. As correctly perceived, it does not detract from strong federal
authority in the areas where authority must be and is centralized in a national government.
Adjusting the boundaries between the federal and regional governmental units and
14ARISTOTLE, POLITICS (ca. 325 B.C.).
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maintaining a proper balance is necessarily the essence of a large body of law in any federal
system. Federalism, of course, assumes an at least initial voluntary acceptance by constituent
units.
judicial review by an independent judiciary
as a central mechanism for constitutional enforcement
An independent judiciary is a critical component of the principle of separation of
powers, as well as of an effective principle of constitutionalism in embodying and realizing
the major conditions of the consent of the governed. 15 Because of the great importance of
judicial review as a central mechanism for constitutional enforcement and for maintenance
of the rule of law, however, I believe that it should be considered a fundamental principle in
its own right. Indeed, no principle in the American experience has been more important in
maintaining the integrity of the major constitutional underpinnings of the rule of law than
has the principle of independent judicial review. Thus, the Supreme Court has in the 1962
reappointment decision of Baker V. Carr¹⁶ sought to police the Integrity of the "one person
one vote" principle underlying government of the people, by the people, and for the people.
In major decisions such as INS V. Chadha,¹⁷ in which the Court in 1983 struck down the
so-called "legislative veto," the Court has policed the critical workings of separation of powers
and checks and balances. The Court has since its earliest days been repeatedly concerned with
maintaining a proper balance in issues of federalism. And perhaps its most vital role has been
in protecting the fundamental rights and freedoms of individuals against encroachment by
federal and state action. As the Framers correctly foresaw, the judicial power could not be
15 The "Introduction" to Melone and Mace, Judicial Review and American Democracy
(1988), roots judicial review in the belief that the Constitution is the Supreme expression
of the people's will." Thus, it says:
The ultimate and necessary foundation upon which judicial review rests is the
belief that the Constitution is the supreme expression of the people's will. Since it
results from the acts of the people in their constituent capacity, it is fundamental
law embodying the people's determination of the proper division and extent of
governing authority between the various branches of the national government;
between the central government and the state governments; between the national
government and individuals; and, especially under the expanded application of the
Fourteenth Amendment, between state governments and individuals.
Id. at 3. The Federalist No. 78 (Hamilton) provides perhaps the strongest indication in
constitutional history that the Framers contemplated judicial review concerning issues of
constitutional consistency.
16Baker V. Carr, 369 U.S. 186 (1962).
INS V. Chadha, 462 U.S. 919 (1983).
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subsumed within the executive or legislative branches consistent with effective exercise of the
judicial role in policing these principles of the rule of law. Indeed, judicial review by an
independent judiciary may be the only way to effectively ensure the supremacy of the
Constitution. The realization of this point was an essential element in the reasoning of Chief
Justice John Marshall in the landmark decision of the Supreme Court in the 1803 case of
Marbury V. Madison, 18 setting out the doctrine of "judicial review" by declaring for the first
time an act of Congress unconstitutional. Thus, Marshall wrote:
Certainly all those who have framed written constitutions contemplate them
as forming the fundamental and paramount law of the nation, and, consequently,
the theory of every such government must be, that an act of the legislature,
repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and, is
consequently, to be considered, by this court, as one of the fundamental principles
of our society. It is not therefore to be lost sight of in the further consideration of
this subject.
If an act of the legislature, repugnant to the constitution, is void, does it,
notwithstanding Its invalidity, bind the courts, and oblige them to give it effect? Or,
in other words, though it be not law, does it constitute a rule as operative as If it
was a law? This would be to overthrow in fact what was established in theory; and
would seem, at first view, an absurdity too gross to be insisted on. It shall, however,
receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases, must of necessity expound
and interpret that rule. If two laws conflict with each other, the courts must decide
on the operation of each.
So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide that
case conformably to the law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such
ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be
considered, in court, as a paramount law, are reduced to the necessity of
maintaining that courts must close their eyes on the constitution, and see only the
law.
This doctrine would subvert the very foundation of all written constitutions.
It would declare that an act which, according to the principles and theory of our
government, is entirely void, is yet, in practice, completely obligatory. It would
declare that if the legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual. It would be giving
to the legislature a practical and real omnipotence, with the same breath which
18Marbury V. Madison, 5 U.S. 137 (1803).
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professes to restrict their powers within narrow limits. It is prescribing limits, and
declaring that those limits may be passed at pleasure. 19
A genuinely independent judiciary, of course, requires not only a doctrine of judicial review
but also scrupulous protection of the independence of the judiciary in form and in fact.
Details of appointment, tenure, salary, status, training and removal must all be resolved to
preserve and strengthen that independence. Similarly, the selection of judiciary must not be
on a partisan basis and should ensure the selection of the most qualified legal experts. And
the legal profession, as well as the government and society as a whole, must internalize the
independence of the judiciary and the important reasons for it.
III. Some Essential Components of
Limited Government and Protection of Individual
Rights and Freedoms in a Representative Democracy
As has been discussed, major tenets of the rule of law in a representative democracy
include limited government and constitutional limits on governmental action against the
individual. In turn, these tenets include a broad range of substantive and procedural
components. Some such components widely regarded as essential include the following:
preserving a climate of
free discussion and opinion
Nothing is more essential to the proper functioning of representative democracy than
maintaining a climate of free discussion and opinion. This requires maintenance of freedom
of speech; freedom of assembly; free and vital television, radio and newspaper media; freedom
to petition government for redress of grievances; a free and vital publishing industry;
academic freedom in institutions of higher learning: protection of exchange in the legislative
process and depoliticization of governmental information efforts. Ultimately, an informed and
involved citizenry is the lifeblood of democracy. As Thomas Jefferson reminds us:
¹⁹Id. at 176-78 (Opinion of the Court).
20The discussion which follows is emphatically not a complete list of fundamental
components of the major tenets of limited government and constitutional limits on
governmental action against the individual. The rights to travel and emigrate and the right
to privacy, for example, are also fundamental.
10
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If a nation expects to be ignorant and free, in a state of civilization, it expects what
never was and never will be.21
Protecting the necessary climate of free discussion and opinion is a crucial role of the rule
of law.
fairness in criminal process
An essential element in the relationship of government to its citizens is the maintenance
and operation of a criminal process. Protection of the fairness and integrity of that process
is an essential element of the rule of law. The Magna Carta and numerous bills of rights
throughout human history attest to the importance of such fairness. Indeed, the fourth, fifth,
sixth and eighth amendments in the Bill of Rights to the United States Constitution directly
relate to the fairness of criminal processes, including requirements concerning search and
seizure (the fourth amendment); protection against double-jeopardy and self-incrimination
(the fifth amendment); the rights to a speedy and public trial by an impartial jury, to be
informed of all charges, to be confronted with adverse witnesses, to have compulsory process
for obtaining witnesses and to have the assistance of counsel in defense (the sixth
amendment); and prohibition of excessive ball or fines and of cruel and unusual punishment
(the eighth amendment). Perhaps the most important guarantee undergirding the protection
of the individual against the state in criminal trials, however, is the presumption of innocence
until proven guilty. Similarly, the right of habeas corpus, appellate review of criminal
convictions, and fairness in sentencing and subsequent treatment are also vital. Also of great
concern, the criminal process must not be politicized or used for the punishment of political
dissidents.
Fairness in criminal process is not a monopoly of systems rooted in either common or
civil law traditions. It is, however, a function of adherence to certain minimum standards such
as advance promulgation of law, protection against unreasonable searches and seizures or
unreasonable criminal charges, a high standard of proof by the finder of fact such as proof
beyond a reasonable doubt, an impartial trial with an opportunity for an adequate defense,
a right to independent advice of defense counsel, a strict separation of prosecutorial and
judging functions, independent judges, and reasonable and proportional sentencing. While all
traditions can be rooted in the rule of law, I prefer the adversarial process of the common
law tradition as providing greater protection for an accused and a more vigorous search for
the truth, among other advantages. Of possible interest, a growing body of empirical social
21 Letter to Colonel Charles Yancey, January 6, 1816," in 11 THE WORKS OF THOMAS
JEFFERSON 497 (P. Ford ed. 1905).
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science evidence seems to support popular preference for an adversarial process involving a
genuinely independent adversarial defense over an inquisitorial model.22
protection of religious freedom
The maintenance of religious freedom is one of the oldest and most important
components of individual freedom. Thus, ensuring religious freedom is an essential
component of the rule of law. Again, the importance of such freedom is attested throughout
human history. It is a central component of, among other historic indicators, the Magna Carta
in 1215, Roger Williams' "Bloudy Tenent of Persecution for Course of Conscience" in 1644,
the Maryland Toleration Act of 1649, the Virginia Bill of Rights of 1776, Thomas Jefferson's
masterful Virginia Statute for Religious Freedom in 1786,23 and the first amendment to the
United States Constitution as ratified in 1791. Religious freedom encompasses at least two
vital and interrelated principles-the free exercise of religion and the non-establishment of
religion. To avoid interference with the free exercise of religion, as well as to maintain
consistency with the underlying purposes of non-establishment of religion, It would seem
essential also that government not establish a doctrine of non-religion, just as it must not
establish a particular religion. Finally, the full protection of religious freedom may require
strong and effective civil rights laws to protect against discrimination on religious grounds.
protection of civil rights
A democratic society must ensure equality before the law and the protection of minority
and even disadvantaged majority populations. The United States fought a civil war in the long
struggle for effective realization of this principle, and with the Supreme Court leading the way
in Brown V. Board of Education²⁴ in 1954, the Nation has taken this principle to heart.
Today such civil rights, including protection against discrimination based on race, gender, or
22See, e.g., E.A. LIND & T.R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL
JUSTICE (1988). Cross-cultural aspects of this research indicate key findings are likely
applicable to European conditions. Id. at 129-45.
23The importance in Jefferson's mind of the Statute of Virginia for Religious Freedom
is reflected in the epitaph he chose for his tombstone:
Here was buried
Thomas Jefferson
Author of the Declaration of American Independence
of the Statute of Virginia for religious freedom
& Father of the University of Virginia
24 Brown V. Board of Education of Topeka, 347 U.S. 483 (1954).
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religion, are protected not only against abusive governmental action by constitutional
principle, but also against both state and private action by a growing network of civil rights
laws. Such laws are a vital component of the rule of law in a modern democratic society.
accountability of governmental
officials and protection of governmental processes
Any modern democratic society must have a vital network of laws to ensure
accountability of governmental officials and protection of governmental processes and rational
decision. Such laws may include measures to facilitate petition of government for redress of
grievances, "freedom of information" laws, "sunshine" laws, private suits against government
or government officials in certain cases, agency inspectors general, "whistle blower" laws,
"impact statements" required before decision (used particularly in the environmental area),
ombudsman, conflict of interest laws, administrative remedies and appeals, and even
independent counsel (though this check remains controversial in the United States).
protection of the rights of workers
Certainly every genuine democracy should seek to protect the rights of workers. Indeed,
that is a major philosophical premise underlying the Soviet system. Yet, as the emergence of
Solidarity in Poland Illustrates, the rights of workers can be abridged by the state at least as
thoroughly as by private employers. The developed nations have created a detailed labor law
centering on the rights of workers to organize and bargain collectively and on the
maintenance of a safe and healthy work environment. The development and enforcement of
such a body of labor law would seem an important component of the rule of law in a modern
democratic society.
civilian control of the military
Many democratic societies have stressed the essential nature of civilian control of the
military. In the United States this is guaranteed not only by important constitutional
provisions concerning legislative control over military appropriations and appointments, but
is also an essential element of the military's own code of professionalism. Similarly, the
military follows a tradition that is nonpolitical. And, of course, this principle of civilian
control of the military also applies to civilian control of intelligence agencies. 25 Both
military and intelligence agencies must operate under the rule of law and constitutional structures.
25See generally Chapter 19 in NATIONAL SECURITY LAW (J. MOORE, R. TURNER AND F.
TIPSON eds. 1990) for measures ensuring civilian control of intelligence agencies within the
United States and the operation of such agencies within the rule of law.
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protecting the environment
One major reason for governmental Intervention in a market economy is protection
against "externalities" such as environmental damage. Because of the potentially great societal
cost of environmental damage, insuring that environmental costs will be adequately
considered and that high standards of environmental protection are met is an essential role
of modern democratic governance. Moreover, because governmental actions and projects, if
not directly accountable and if identified with government Itself, have an equal if not greater
potential for ignoring environmental costs than private sector actions, vigorous protection of
the environment is essential in all systems.
protecting economic freedom and entitlements
Perhaps no issue in the past has proceeded as thoroughly on different philosophical
premises as the protection of economic freedom and property rights. The developed
democracies, with a tradition of John Locke and market-oriented economies, have
traditionally protected economic freedom and individual property rights. The Soviet system,
however, has followed Marx and Engels in the abolition of many forms of private property.
Thus, John Locke, in his Second Treatise of Civil Government in 1690, wrote at length in
support "of property." And the breadth of support for this principle is illustrated by the 1789
French Declaration of the Rights of Man, which begins article 17 with the preamble "Property
being a sacred and inviolable right
Yet the Communist Manifesto provides in relation
to certain private property: "the theory of the Communists may be summed up in the single
sentence: Abolition of private property."
Clearly, market-oriented economies are a major feature of the rule of law in developed
societies based on Western democratic values. The economic success of those societies, not
only in enhancing overall production of goods and services, but also in broadly delivering
consumer goods and services, speaks with the normative force of facts. Increasingly. however,
the literature in the West has also shown a powerful connection between economic freedom
generally, including private property rights, and both individual freedom and overall societal
levels of freedom and success of governmental structures. Thus, property rights and freedom
in the economic sphere are increasingly recognized as essential components of human
freedom. For If tight control of property enables pervasive state control of the individual,
then freedom can be lost as effectively as through the denial of civil and political freedoms.
Indeed, Professor Charles A. Reich writes in a famous article on "The New Property-26 that
26c. Reich, "The New Property," 73 YALE L.J. 733 (1964).
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"[t]he institution called property guards the troubled boundary between individual man and
the state. -27 And further:
At the very least, It is time to reconsider the theories under which new forms
of wealth are regulated, and by which governmental power over them is measured.
It is time to recognize that "the public interest" is all too often a reassuring
platitude that covers up sharp clashes of conflicting values, and hides fundamental
choices. It is time to see that the "privilege" or "gratuity" concept, as applied to
wealth dispensed by government, is not much different from the absolute right of
ownership that private capital once invoked to justify arbitrary power over
employees and the public.
Above all, the time has come for us to remember what the framers of the
Constitution knew so well-that "a power over a man's subsistence amounts to a
power over his will." We cannot safely entrust our livelihoods and our rights to the
discretion of authorities, examiners, boards of control, character committees,
regents, or license commissioners. We cannot permit any official or agency to
pretend to sole knowledge of the public good. We cannot put the independence of
any man
wholly in the power of other men.28
And, of particular relevance in a system in which the individual must rely heavily on
government "entitlements," a central thrust of this article by Professor Reich is the
importance of protecting these state-controlled "entitlements" as "the new property" against
arbitrary or politicized government denial. Moreover, the roles of private property in
providing individual incentive and as a prerequisite for voluntary exchange which is the basic
mechanism of decentralized market systems has long been recognized in the developed
democracies. Indeed, of particular interest, there is a growing feeling among many in the West
that political systems which broadly limit private property rights may not be able to adopt
more open governmental processes without also adopting greater economic freedom-going
far beyond efforts at greater decentralization of governmental planning. For the resulting
inefficiencies in relatively centralized governmental setting of prices, as opposed to the
decentralized actions of markets, may inevitably lead either to popular efforts at fundamental
change in government structures or to massive emigration, as was most recently evident in
the events in the German Democratic Republic following the courageous and internationally
applauded dismantlement of the Berlin Wall. A discussion of this potential linkage between
freedom in the economic sphere and freedom elsewhere appears in the Economic Report of
the President transmitted to the United States Congress in February 1982. Chapter two of this
report on "Government and the Economy" begins:
27Id.
28Id. at 787.
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Political freedom and economic freedom are closely related. Any comparison
among contemporary nations or examination of the historical record demonstrates
two important relationships between the nature of the political system and the
nature of the economic system:
All nations which have broad-based representative government and civil
liberties have most of their economic activity organized by the market.
Economic conditions in market economies are generally superior to those
in nations (with a comparable culture and a comparable resource base) in
which the government has the dominant economic role.
The evidence is striking. No nation in which the government has the dominant
economic role (as measured by the proportion of gross national product originating
in the government sector) has maintained broad political freedom; economic
conditions in such countries are generally inferior to those in comparable nations
with a predominantly market economy. Voluntary migration, sometimes at high
personal cost, is uniformly to nations with both more political freedom and more
economic freedom.
The reasons for these two relationships between political and economic
systems are simple but not widely understood. Everyone would prefer higher prices
for goods sold and lower prices for goods bought. Since the farmer's wheat is the
consumer's bread, however, both parties cannot achieve all they want. The most
fundamental difference among economic systems is how these conflicting
preferences are resolved.
A market system resolves these conflicts by allowing the seller to get the
highest price at which others will buy and the buyer to get the lowest price at which
others will sell, by consensual exchanges that are expected to benefit both parties.
Any attempt by one party to improve his outcome relative to the market outcome
requires a coercive activity at the expense of some other party. The politicization
of price decisions-whether of wages, commodities, or interest rates-tends to
reduce both the breadth of popular support for the government and the efficiency
of the economy. A rich nation can tolerate a good bit of such mischief, but not an
unlimited amount. One should not be surprised that all nations in which the
government has dominant control of the economy are run by a narrow oligarchy
and in most economic conditions are relatively poor. In the absence of limits on the
economic role of government, the erosion of economic freedom destroys both
political freedom and economic performance.
Only a few dozen nations now guarantee their citizens both political and
economic freedom. The economic role of government in these nations differs
widely, without serious jeopardy to political freedom. Within the range of
experience of the United States and the other free nations, the relation between the
political system and the government's economic role is more subtle. Expansion of
the economic role of the government tends to reduce both the level of agreement
on government policies and the inclination to engage in political dissent. The link
between political and economic freedom is important. Increasing economic freedom
will also provide greater assurance of our political freedom.
A major objective of this Administration's economic program is to reduce the
Federal Government's role in economic decisionmaking while strengthening the
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economic role of individuals, private organizations, and State and local
governments. This shift will entail substantial reductions in the size and number of
Federal spending programs, significant reductions in both personal and business
Federal tax rates, major reforms of Federal regulatory activities, and a reduced rate
of money growth. While an important element in this redefinition of the Federal
Government's economic role is a political judgment about the appropriate
relationship among individuals, the States, and the Federal Government, this
redefinition also is supported by an extensive body of economic analysis.29
Similarly, Justice Antonin Scalia, now of the United States Supreme Court, wrote in a book
published in 1987:
I know no society, today or in any era of history, in which high degrees of
intellectual and political freedom have flourished side by side with a high degree
of state control over the relevant citizen's economic life. The free market, which
presupposes relatively broad economic freedom, has historically been the cradle of
broad political freedom, and in modern times the demise of economic freedom has
been the grave of political freedom as well.30
Finally, quite apart from the considerable issues of whether it is necessary and of the costs
to individual freedom and governmental systems from any such effort, questions are being
raised in the West concerning the internal consistency of efforts to avoid exploitation of man
by man through a denial of private property rights and economic freedom. That is, It has been
argued that any thorough-going effort to ensure approximate economic equality requires the
socialization of both economic success and economic failure. But, if so, does not this in turn
29 Chapter 2 "Government and the Economy," from the Annual Report of the Council of
Economic Advisers, in ECONOMIC REPORT OF THE PRESIDENT, TRANSMITTED TO THE
CONGRESS FEBRUARY 1982, at 27-28 (1982). This chapter also contains a good summary
statement of the macro-economic case for limited governmental intervention in private
markets. These include: "externalities" (positive and negative), "monopoly," "public goods,"
"income redistribution" and "macroeconomic stability." It also contains an interesting
discussion of the theoretical reasons for "government failure" as opposed to "market failure*
dealt with above as settings for limited government intervention. These include the political
process as "overly responsive to special interest groups," inefficiencies in "supply by
government agencies," a failure to maximize responses to "diversity of conditions and
preferences," "limits on information" and the over-discounting by government decisionmakers
of programs which impose costs today in return for future benefits. See id. at 29-42.
As these theoretical points illustrate, modern democratic governance in a market
economy has ample latitude for taxation and regulatory intervention (exercise of the "police
power") to protect workers, consumers, investors and the environment without banning or
overburdening the market economy itself.
30A. Scalia, Economic Affairs as Human Affairs, in ECONOMIC LIBERTIES AND THE
JUDICIARY 31, 32 (J. DORN & H. MANNE eds. 1987).
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mean that inevitably there will be systematic exploitation of some groups (the economically
successful) by others (the economically unsuccessful)? And, moreover, public officials, who
have a major role in directing the economy in a non-market system, will have power, motive,
and opportunity to do some exploiting of their own in a more direct way.31 Whatever the
answers to these questions, it is increasingly clear that the protection of economic freedom
is an essential component of the rule of law in a modern democratic society. I believe that
addressing this issue fully and progressively is as important as any in the overall process of
"perestroika."3.
IV. Some Essential Components of The Rule of Law
Within an Independent and Democratic Judicial Process33
Just as the fundamental tenets of limited government and protection of individual rights
and freedoms depend importantly on a number of essential components, so, too, the rule of
law within an independent judicial process depends on a number of essential components.
These include:
the supremacy of constitutional guarantees within the judicial process;
the principle, "nullum crimen, nulla poena, sine lege" (literally meaning that without a
law, there can be no crime and no punishment), that there can be no penalty without
prior, publicly known and reasonably specific laws.³⁴ It should be emphasized that
31See generally S. ARNOLD, MARX'S RADICAL CRITIQUE OF CAPITALIST SOCIETY: A
RECONSTRUCTION AND CRITICAL EVALUATION (1990).
32What is liberalized directly, of course, should not be banned indirectly through
continuing criminalization of "profit," vaguely defined "speculation," or pervasive bureaucratic
control.
33One can also speak of essential components of the rule of law within a democratic
legislative process. These would certainly include a presumption of openness in publication
of draft laws and debate before adoption and other measures concerning due process within
the legislative process, and anti-corruption measures, among others. For a general discussion
of the legislative process, see J. DAVIES, LEGISLATIVE LAW AND PROCESS (2d ed. 1986), W.
ESKRIDGE & P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE
CREATION OF PUBLIC POLICY (1988), C. NUTTING & R. DICKERSON, CASES AND MATERIALS
ON LEGISLATION (5th ed. 1978).
34A seemingly similar statement was apparently made by President Mikhail Gorbachev
at the Nineteenth Party Conference: "[W]e must adhere strictly to the principle that
everything that is not prohibited by law is permitted." "Gorbachev Report Sizes Up
Restructuring," 40:26 CURRENT DIG. OF THE SOVIET PRESS 7, 19 (Jul. 27, 1988).
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secret laws and regulations, unknown to those to whom they will be applied, are
fundamentally inconsistent with the rule of law;
the principle of decisions based on law, stemming from an analysis of the functional
intent of the lawmaker as opposed to political factors, party affiliation, personal gain
or arbitrary flat. The essence of an independent judicial process is judging based on
rational analysis of the law and its underlying policies as applied in a specific case;
the principle that "like cases should be treated alike";
the principle that reasons should be given for decisions, that the reasons given should
be candid for appraisal by others, and that such opinions should be published and
made widely available to lawyers and in specialized libraries;
the principle that judges should defer to clear higher authority within a system,
whether it is a constitution, a legislative enactment, or a higher court within an
overall judicial system. That is, in constitutional interpretation the judge is not
superior to the Constitution, in statutory interpretation the judge is not superior to
a clear intent of the legislature, and a judge is bound to follow a ruling on point of
a higher judge within an overall judicial system.
These and other principles underlying the judicial process, including principles of
interpretation, are not self-defining, and a rich body of jurisprudential writing addresses their
meaning and effect. In particular, the legal realists have taught us that judicial decisionmaking
is inevitably a process involving choice in rule selection, fact selection, and semantic and
syntactic interpretation.3 While opinions differ as to the precise content and effect of such
principles, however, there is widespread agreement on their importance to the rule of law.
Professor John Jeffries of the University of Virginia says of the rule of law in the context
of the "vagueness" issue in this tenet:
The evils to be retarded are caprice and whim, the misuse of government power for
private ends, and the unacknowledged reliance on illegitimate criteria of selection.
The goals to be advanced are regularity and evenhandedness in the administration
of justice and accountability in the use of government power. In short, the "rule of
law" designates the cluster of values associated with conformity to law by
government.
Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 U. VIRGINIA L. REV.
189, 212-13 (1985).
35See, e.g. Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897); CARDOZO, THE
GROWTH OF LAW (1924); K.N. LLEWELLYN, THE COMMON LAW TRADITION (1960); Allen
& Caldwell, Modern Logic and Judicial Decision Making: A Sketch of One View," 28 L. &
CONTEMP. PROBLEMS 213-24 (1963).
See also for a discussion of "the inner morality of law" in the new natural law tradition,
Fuller, Positivism and Fidelity to Law-A Reply to Professor Han, 71 HARV. L. REV. 630
(1958).
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V. The Rule of Law in International Affairs
Just as the rule of law is an essential component in national life, so, too, it is an
essential component in international life. As John Jay wrote in The Federalist:
It is of high importance to the peace of America, that she observe the laws of
nations
36
And as Thomas Jefferson wrote in 1790:
I think with others, that nations are to be governed with regard to their own
interests, but I am convinced that it is their interest, in the long run, to be
faithful to their engagements, even in the worst of circumstances, and honorable
and generous always.37
One fundamental principle in international affairs is, of course, that nations should follow
the rules of treaty and customary international law binding on them. Perhaps the essential
principle of world order, however, is that nations must adhere to the United Nations Charter
obligation not to use force aggressively in international relations. In this connection the
peoples of the democracies applaud the decision by President Gorbachev to repudiate the
Brezhnev doctrine and to permit genuine self-determination in the countries of Eastern
Europe. Perhaps one area for future discussion might be an approach to "world peace
accountability" which would highlight the critical Importance of strict adherence to the
Charter prohibition against aggressive use of force in international relations and seek to raise
public awareness of these issues much as the Helsinki process has raised public awareness of
human rights issues. Indeed, one of the interesting paradoxes of beginning major international
accountability with human rights accountability is that a whole network of practices and
institutions has grown up around such human rights accountability, while there is no such
network surrounding accountability for another central thrust of the United Nations Charter,
the prohibition in Article 2(4) against the threat or use of aggressive force.³⁸ Accountability
to this great principle, however, is, like human rights, of obvious concern to all nations as
they struggle for a world free from aggressive use of force. Indeed, in an age in which legal
scholars can debate the "death" of Article 2(4) of the Charter something badly needs to be
"THE FEDERALIST No. 3, at 14 (J. Jay) (J. Cooke ed. 1961).
37 Letter to The Marquis De Lafayette, April 2, 1790," in 8 THE WRITINGS OF THOMAS
JEFFERSON 12 (Mem. Ed. 1903).
38 There is, of course, obviously a loose international network of claims and counterclaims
and some degree of international institutions devoted to such accountability but, strikingly,
nothing similar to human rights accountability as it has evolved in the Helsinki process.
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done, if possible, to revitalize this fundamental principle. Moreover, the recent statement by
President Mikhail Gorbachev before the United Nations, In which he emphasized the
impermissibility of the use of aggressive force in international relations, thus verbally
recognizing this Charter principle as a cornerstone of world order, suggests an important
opportunity to strengthen this principle through enhanced accountability.
VI. A Robust Legal Profession
The rule of law inevitably requires a healthy and robust legal profession. This, in turn,
requires high-quality legal education in a climate of academic freedom, a vital and
independent organized bar, a tradition of understanding and protection for the lawyer's role
in representing unpopular as well as popular clients and causes, an independent and learned
judiciary, a code of professional ethics rooted in the independence and integrity of the judicial
process, and a reliable and effective system of legal reporting and public dissemination of
laws. of necessity, the rule of law requires an adequate number of well-trained and
professional lawyers and judges to provide defense counsel in criminal proceedings, to staff
a genuinely independent judiciary, to provide advice on the law, and to carry out the myriad
of other services performed by a professional bar. Resources, status, salaries and other
incentives must be adequate to develop such a bar. A robust legal profession can also be
assisted by enhancing support for institutions devoted to the recommendation and appraisal
of individual laws and the operation of the legal system as a whole.
21
Burgess - 447-2112
THE WHITE HOUSE
WASHINGTON
1985 grp of suret
1
regs.
banned contacts w/
foreigners; must
report contacts; group
ig 3 people as large;
illigal to form 4
group
Romania
Eeausescu
05/03/90
17:09
7777777
STATE DEPT-HA
001/012
FACSIMILE TRANSMITTAL
BUREAU OF HUMAN RIGHTS & HUMANITARIAN AFFAIRS
Room 7802
Department of State
Washington, D.C. 20520-7812
FAX: (202)647-9519
PLEASE ACKNOWLEDGE RECEIPT OF THIS MATERIAL:
NO
YES
Sender's Name: Davide Burgess (HA) Date: 5/3
Phone:
No of Pages:
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(incl. cover page)
Classification: UNCL
MESSAGE DESCRIPTION:
ABA speech; RuLe of
LAW FACT Sheets
TO: (Organization): # White House
Deliver to: Peggy Doeley Rm. No.
Tel. No.
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FOR: Clearance
Information
Per Request
Comment
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STATE DEPT-HA
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United States Department of State
Washington, D.C. 20520
"EVOLUTION OF U.S. POLICIES ON
HUMAN RIGHTS AND DEMOCRATIZATION"
Remarks by David Burgess, Director of Policy, Programs,
Legislation and Public Diplomacy, Bureau of Human Rights and
Humanitarian Affairs, at a Forum on "Elections and Democratic
Transition: How Strong the Link?", sponsored by the American
Bar Association Committee on International Human Rights and the
Association of the Bar of the City of New York, New York City,
April 27, 1990
I am pleased to be here, and I want to thank the American
Bar Association and the Bar Association of the City of New York
for giving me the opportunity to speak with you today. We in
the Administration feel very strongly that U.S. foreign policy
cannot have its intended effect and impact abroad unless it is
understood and supported by the public at home.
I would like to share with you the Administration's
approach to three key topics: Democracy, Human Rights and the
Rule of Law. Of course, some people will tell you that a
democracy is where you have the freedom to say whatever you
please, but you don't have to listen to anybody else unless you
want to. I do hope that you will listen today, and then ask
yourselves how you too, as members of the legal profession, can
help in promoting greater international respect for Democracy,
Human Rights and the Rule of Law.
For the past six years or so the Bureau of Human Rights and
Humanitarian Affairs has been working throughout the world to
cultivate these three ideas. And, to be honest, at times it
seemed that we were surely plowing our way through arid fields
and sowing our seeds in the midst of a drought. Totalitarian
dictatorships and communist oligarchies controlled a great deal
of the world's population, and in too many societies "the Rule
of Law" simply meant martial law. Rights were really privileges
for the elites -- ordinary people were ordinarily denied even
the most basic civil and political rights, and their other
fundamental human rights were frequently at risk.
We also noted with irony that in so many cases, the states
which 50 thoroughly repressed their people had a penchant for
calling themselves "the Democratic People's Republic of Far
Offistan" or comparable titles which reflected little of the
reality faced by their citizens.
05/03/90
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STATE DEPT-HA
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-2-
Our observations led us to the conclusion that while we
had been pursuing the cause of human rights, often with some
success -- and primarily through interventions on specific
human rights cases -- we had nevertheless been neglecting some
of the essential work on improving structures and systems upon
which respect for human rights must be grounded.
At that point, some five or six years ago, we thus made a
conscious decision to till the human rights soil, if you will,
and to plant the seeds of democracy, rather than simply tending
to the many individual cases of human rights violations -- as
tragic and heart-rending as they might be.
So we continued our work, motivated, quite frankly, not
only by our dedication to international human rights standards,
but also by an ideological commitment to the principles that
underlie American democracy.
This was the Reagan Administration, of course, and we were
frequently accused of mixing politics, other foreign policies
and human rights. Some said we were trying to promote American
ideals of democracy throughout the world, not just for the sake
of human rights, but also to promote President Reagan's entire
foreign policy agenda -- especially his policies towards the
communist world. If we had to go to court on this allegation,
I think we would happily make an "Alford Plea" -- the evidence
in support of the charge is certainly substantial.
We were also accused of using human rights policies to
bash our ideological adversaries while giving our ideological
friends a free ride. To this allegation we offer a mixed
plea: On the one hand we firmly believe that there can only be
one standard for international human rights, a universal
standard which does not depend on race, culture, creed, form of
government or level of social or economic development. On the
other hand, we have clearly focussed greater attention both
publicly and privately on our ideological adversaries, and we
will continue to do so in the Bush Administration.
(Let me distinguish here, however, by pointing out that
what we do publicly is the lesser part of our human rights
efforts, both with our friends and our adversaries. One of our
diplomatic operating principles is to give any government the
opportunity to discuss human rights issues privately, and to
tend its own fields without public embarrassment. If private
discourse fails to improve the situation, though, we do not
hesitate to speak out publicly. Let me also note that one of
the reasons that our friends are our friends and our
adversaries are not, is because of the different ways in which
they treat their citizens, and the different prospects and
opportunities they offer their people to attain full enjoyment
of fundamental human rights.
05/03/90
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We do this for one simple reason: Democracy is the only
form of government that is founded on respect for the dignity
of man. Democracy is essentially anti-authoritarian -- it does
not tolerate dictators, oligarchs or despots, whether from the
right or the left. And when we support the growth and
development of democracy, we likewise support respect for human
rights. Individual rights, group and minority rights, and the
rights of the majority are all protected in democracies.
We do not adhere to these principles solely because they
are the bedrock of American society and thus properly should be
a core element of U.S. foreign and domestic policies. Rather,
we firmly believe that these principles are piart of U.S.
foreign policy precisely because they are universal, and thus
are not constrained by cultures, different economic systems or
other societies' traditions. Fundamental human rights are just
that: they belong to us because we are human, not because we
may be Christians, Jews, Buddhists or Muslims; not because of
racial, ethnic or tribal distinctions; and not because we may
be democrats, socialists, communists, colonels or clampesinos.
Nor does the entitlement to these rights depend upon the
specific form of one's government. Obviously, the nature of
the state has a lot to do with how human rights are respected
and protected -- and that is exactly why we take great pride
today in fomenting democracy.
President Bush has defined the State Department's new
mission as the promotion and consolidation of democracy. we in
the Human Rights Bureau welcome this approach and are
enthusiastic that it will further solidify respect for both the
Rule of Law and fundamental human rights throughout the world.
Secretary of State Baker has stated that our objective is
democracy, and elections are the means to achieve that
objective. Elections alone, of course, do not necessarily
provide protection for human rights, anymore than planting a
tree means that you can now harvest the fruit. But elections
-- fair and free -- do lead to self-determination,
participatory government, governmental accountability and the
process of democratization.
This process also needs other ingredients, however. Newly
elected governments and their leaders must tend to the transfer
of power, a fundamental problem now facing numerous new
democracies, including Romania, Guatemala, Nicaragua, El
Salvador and Bulgaria.
Newly elected leaders must also assure the full range of
human rights which help to make that government legitimate,
among them the freedoms of speech, press and assembly. And
these newly democratic states must also move affirmatively to
assure justice for their people. For only with justice --
05/03/90
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including an abiding respect for the Rule of Law -- - will human
rights be secure. This is today's daunting task, as much in
Eastern and Central Europe as in Asia or Central America.
Let me close by recalling Reinhold Niebuhr's observation
that "Man's capacity for justice is what makes democracy
possible -- but man's inclination to injustice is what makes
democracy necessary.
We are firmly convinced that democracy, and a commitment
to the Rule of Law, are essential if individuals throughout the
world are to have a chance to see their fundamental human
rights fully attained and safely protected. Thank you.
# # # #
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May 1, 1990
US-USSR COOPERATION ON HUMAN RIGHTS
I.
NEW AGENDA
o
During the Wyoming ministerial, the U.S. and the
U.S.S.R. agreed on a New Agenda on Human Rights. The
Rule of Law exchanges described below are an
outgrowth of our discussions with the Soviets on that
issue.
II.
RULE OF LAW
-- U.S. legal experts and their Soviet counterparts met
in Moscow and Leningrad in March 1990, where they
conducted a series of public seminars on Constitutional
law, due process, federalism and separation of powers.
-- Soviet trial and appellate judges attended a special
program at the National Judicial College in Reno in late
April and early May 1990, followed by several days of
observation and practical legal discussions with judicial
personnel and organizations in Washington, D.C. and New
York,
-- Plans call for several senior Soviet legal reformers
to participate in a series of individual programs to
study selected aspects of the Rule of Law in the U.S.
-- Plans are underway for perhaps 50 post-graduate Soviet
law students to come to the U.S. for in-depth study of
our legal system.
-- Soviet authorities have expressed interest in having
one or two U.S. law professors teach American law courses
at Moscow State University Law School, perhaps as early
as the 1990-1991 school year. The courses would be in
American Constitutional Law, and possibly also American
Commercial or Business Law.
-- The upcoming visit of a Soviet psychiatric delegation
to the U.S. evolved out of last year's visit of an
American delegation to the U.S.S.R. The Soviets reacted
positively to the delegation's report on Soviet abuse of
psychiatry and seem to be sincerely interested in coming
here to learn modern psychiatric techniques, especially
in forensic psychiatry. The visit has been postponed at
this time, pending details on the U.S. program and the
final composition of the Soviet team.
05/03/90 17:12
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III. HUMANITARIAN PROGRAMS
o
We have developed a number of exchanges in an effort
to be responsive to a humanitarian request to assist
in improving the quality of Soviet life, including
the disabled, the aging, and occupational health and
safety.
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May 3, 1990
U.S.-U.S.S.R. JUDICIAL EXCHANGE
A two-week program was conducted from April 20-May 5,
1990. A summary of the program is presented below, and a
detailed description of both weeks is attached.
Week 1 (April 21 - April 28)
Participants attended the National Judicial College in
Reno, Nevada for a specially designed program on the U.S. legal
system and the Rule of Law. The program also included
professional and social events with 60-70 new American judges,
who were attending the National Judicial College's "General
Jurisdiction Course" at the same time. Field trips to
judicial, penal and legal institutions were included as well.
Week 2 (April 28-May 6)
The first part of this week's program (April 28-May 3)
occurred in Washington, D.C., where participants visited a
variety of federal, state and local institutions connected with
the law and the U.S. legal system. The judges met with members
of the Supreme Court, the U.S. Court of Appeals, the D.C.
Superior Court, Congress, and administrative and regulatory
agencies, as well as with private attorneys. Other
professional and social exchanges were arranged, including
visits to American homes.
The second part of this week's program moved to New York
City, with a focus on federal-state legal relations and the
judiciary. The participants will depart from New York to the
Soviet Union on May 6.
The State Department's Bureau of Human Rights and
Humanitarian Affairs coordinated the visit, which was funded by
United States Information Agency (USIA). The program itself
was conducted by the National Judicial College and the
International Programs Division of the U.S. Department of
Agriculture Graduate School.
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April 17, 1990
SENIOR SOVIET LEGAL EXPERTS PROGRAM
The United States plans to host three to eight senior
Soviet legal experts for individual professional exchange
programs during 1990. Each program will last approximately
four weeks, and will be individually designed to meet the
professional needs of the particular expert.
Suggested topics include:
1. U.S. family, inheritance, marriage, adoption and
domestic relations law.
2.
U.S. law and practice affecting foreign nationals,
permanent resident aliens, foreign corporations, etc.;
laws affecting diplomatic, consular and international
organizations in the U.S.; international legal
assistance agreements, relevant treaties and
international conventions.
3.
corporate and securities law; laws related to public
and private education.
4. federalism, intrastate relations, local
self-government, legislative construction and judicial
interpretation.
5.
separation of powers, the Rule of Law, and checks and
balances among branches of government.
6. U.S. judicial system, roles of judges, juries,
prosecutors, defense counsel, magistrates, etc.
7. U.S. maritime and admiralty law; insurance
legislation, litigation and judicial practice.
8. immigration and naturalization law.
The programs will be designed for individual participants,
and each will require about 60 days advance notice to arrange.
The first three Soviet participants have tentatively been
identified and will include representatives from the USSR
Supreme Soviet Institute of Planning and Legislation, the
Supreme Soviet's Section on Constitutional Law, and the Soviet
representative to the Geneva Human Rights Center.
05/03/90 17:14
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STATE DEPT-HA
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April 17, 1990
U.S.-U.S.S.R. ACADEMIC LEGAL EXCHANGES
The program anticipates that perhaps 50 Soviet law
students would study American legal systems at selected law
schools in the United States. It is expected that each of the
participants would pursue a course of study to be designed by
the particular U.S. law school. Each program would last for an
Academic Year (approximately nine months), and each
participating U.S. law school might host one to three Soviet
law students.
It appears that the program would be most beneficial if
the Soviet participants were post-graduate law students, i.e.,
those who have already completed their basic legal studies in
the U.S.S.R. It is expected that such post-graduate law
students would represent a broad range of professional
aspirants, including those intending to pursue careers in
private legal advocacy, government service, law faculties and
legal education, and legal research and scholarship,
It is proposed that this type of legal exchange program
would be reciprocal, although it is understood there would
probably be fewer (e.g., 20-25) U.S. post-graduate law students
who would be able to study the Soviet legal system in the
Soviet Union.
The State Department has informally approached a number of
U.S. law schools (University of Virginia, Yale, Georgetown,
Columbia, etc.) to gauge their interest in participating in
such an exchange. All of the schools expressed strong
interest, and they were hopeful that the proposed program be
developed further in the immediate future so it might commence
during the 1990-1991 Academic Year. These programs are
unfunded, however, although some schools have indicated that
they would consider waiving tuition costs if student living
expenses could be provided.
An additional possibility would involve a U.S. law
professor going to the Soviet Union to teach a course in U.S.
Constitutional Law at the Law Faculty of Moscow State
University. Perhaps a second American law professor could
teach a course at the same institution on U.S. Commercial Law.
The program might serve as a model for future exchanges in the
field of education on American legal principles and practices,
thus promoting replication of the teacher exchange in other law
faculties elsewhere in the Soviet Union.
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April 17, 1990
U.S.-SOVIET SEMINARS ON THE RULE OF LAW
Ten senior U.S. legal experts travelled to the Soviet
Union in March 1990 (Moscow March 19-21; Leningrad March 22-23)
and presented a series of seminars on the "Realization of the
Rule of Law." These seminars involved a variety of legal
topics, and were conducted jointly with Soviet counterparts.
(A list of U.S. participants is attached.)
The seminars were conducted before public audiences in
both Moscow and Leningrad, and each seminar was recorded on
videotape for future dissemination within the USSR. The
audiences generally consisted of Soviet government and legal
officials, law faculty members, law students, and the media.
The seminars were enthusiastically received by the Soviet
side, and generated much discussion and participation among
both Soviet panelists and audience members. The U.S. and the
Soviet sides both agreed that follow-up sessions in the
U.S.S.R. would be beneficial, especially if they were smaller
and focussed on one or two specific legal topics Ke.g., the
right to counsel; freedom of speech; administrative law and
government actions; etc.).
05/03/90
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The U.S. side was chaired jointly by:
o
Donald B. Ayer, Deputy Attorney General
and
o John Norton Moore, Chairman of the Board of Directors of the
United States Institute of Peace.
U.S. participants included the following legal experts,
and officials from the U.S. Department of State and the
Department of Justice:
o Mr. A.E. Dick Howard, the White-Burkett-Miller Professor of
Law and Public Affairs, University of Virginia School of Law
o Mr. George P. Fletcher, Professor of Law, Columbia
University School of Law
o The Honorable Hans A. Linde, Associate Justice, Supreme
Court of the State of Oregon
o The Honorable Lowell Jensen, Judge, U.S. District Court,
Northern District of California
o Mr. Burt Neuborne, Professor, New York University Law School
o Mr. Douglas Letter, Appellate Litigation Counsel, Civil
Division, U.S. Department of Justice
o Mr. William C. Bryson, Deputy Solicitor General, U.S.
Department of Justice
o Mr. Lawrence Robbins, Assitant Solicitor General, U.S.
Department of Justice
o Ms. Nancy Ely-Raphel, Deputy Assistant Secretary, Bureau of
Human Rights and Humanitarian Affairs, U.S. State Department
ITHY 03 'Y0 19:46 MILLER & CHEVALIER
P.1
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MAY 03 '90 19:46 MILLER & CHEVALIER
P.2
CENTRAL AND EASTERN EUROPEAN LAW INSTITUTE
An ABA Center for Law Reform and Comparative Law
The Central and Eastern European Law Institute ("CEELI"), a proposed
project of the American Bar Association ("ABA"), is a cooperative effort to facilitate the
process of law reform now underway in Central and Eastern Europe. Designed to be
responsive to the priorities of the participating countries, CEELI will, through a variety
of means, make available U.S. legal expertise and assistance to countries that are in the
process of modifying or restructuring their laws or legal systems. It will also serve as a
research forum and a source of timely information on legal projects and legal
developments in Central and Eastern Europe.
The elements and structure of this project have been shaped by
consultations with senior government officials, legal scholars, and practitioners throughout
Central and Eastern Europe. Because circumstances vary from country to country,
separate discussions have already taken place or are now occurring in Poland, Hungary,
Czechoslovakia, Romania, Bulgaria, and Yugoslavia. The mix of project components
described below is, in large part, a product of those consultations.
A premise of this project, clearly understood in the region, is that the
existence of a legal infrastructure is an essential predicate to lasting economic and
political reform. The rule of law, so basic a part of our cultural fabric, is an urgent
objective of new governments in countries now moving away from communist and
socialist systems. Of critical importance in many countries is the need to create a
commercial legal infrastructure that will facilitate economic integration into the global
economy. International trade, privatization, direct foreign investment, joint ventures, and
other forms of commercial transactions depend significantly on an established legal
framework that provides the rules of the game, predictability, legal protections, and
compatibility with international commercial norms. As the Soviet and Chinese
experiences show, the absence of such a legal structure will complicate and ultimately
stunt the economic growth that many evolving non-market economies urgently seek.
Moreover, the ability of many Central and Eastern European countries to sustain political
reforms may in fact be dependent upon the viability of their nascent market economies.
As the Minister of Justice of one East European country said, "If our economic reforms
collapse, our other reforms will collapse."
CEELI will consist of multiple program components. Many will be solely
ABA initiatives; others will be collaborations with other organizations and with on-going
projects. CEELI will attempt to maintain an overview of legal assistance projects in
Eastern Europe and, to a significant extent, serve as a coordinator for such initiatives.
MAY 03 '90 19:47 MILLER & CHEVALIER
P.3
The Institute
A central component of CEELI, of great importance to the participating
countries, will be the establishment of an institute physically located in an East European
capital. As the European home of CEELI, the Institute will be the location of conferences
and workshops, the home of a comparative law library, the headquarters of CEELI's East
European Director, and the coordination point for the participating countries. Its
counterpart office in the United States will contain a library of Central and Eastern
European laws and legal materials and will be the publication point of the newsletter.
Both the Executive Director and the Project Coordinator will operate out of the U.S.
office of the Institute. The Institute will be supported not only by this permanent staff,
but also by Country Coordinators and advisory boards in each participating country.
Technical Legal Assistance
In a variety of program formats, U.S. legal expertise and experience will
be made available to assist in law reform and development projects. Typically in the
form of workshops, expert assistance and a dialogue among the participating countries
will be focused on a large variety of substantive legal areas. The formats could include
workshops to draft or revise particular statutes, to conduct case studies of experiences
in other countries, to implement general statutes, or to anticipate and address typical
problems of administration. Workshops, which would address issues based on the
priorities of the participating countries, would address legal issues of common concern
through the Institute and issues of special interest in individual countries. Such technical
assistance would be a central focus of CEELI.
Conferences and Training
In both Eastern Europe and in the United States, educational programs
could address a range of legal issues and concepts. From such general legal concepts as
"private property" and separation of powers, to intellectual property and administrative
due process, educational programs could address legal subjects that have generally been
alien to communist and socialist regimes. Such legal training could take place either in
the United States or in Central and Eastern Europe and could be in short intensive two
or three day sessions or extended programs of several weeks' duration. An additional
training component, which could be available in the Institute in Central Europe, would
be video cassette programs or lecture series on various legal subjects.
Publications
Newsletter, The Institute will publish a monthly newsletter, Central
European Law News, that will include a master calendar of events relating to legal
developments or training in Central and Eastern Europe, an inventory of new laws
adopted in any of the participating countries, a catalogue of publications available in the
Institute's library, a listing of new articles or publications, and reports on developments
in the sister law school program.
MAY 03 '90 19:48 MILLER & CHEVALIER
P.4
Law Journal. CEELI will publish, perhaps jointly with a U.S. law school,
a law review focusing on Eastern Europe.
"A Legal Guide to Doing Business in
This pocket guide series, an
ongoing project in the International Section of the ABA, consists of succinct compilations
of key information relevant to doing business in particular countries. Different from most
country guides by virtue of the amount of legal information contained, these guides will
facilitate the efforts of U.S. companies and lawyers to understand the legal framework
in Central and Eastern European countries. CEELI would publish such a guide for each
participating country within the first six months of operation and revise them as needed.
Legal Exchanges
CEELI will sponsor the temporary placement of East European lawyers in
law firms and corporations in the United States. A program for English-speaking Central
and Eastern European lawyers, these placements would be designed to expose lawyers
from countries that have had nonmarket economies to the commercial, legal milieu of
U.S. law offices. As a counterpart, one week ILEX briefing trips for U.S. lawyers to
particular Central and Eastern European countries could be organized under the existing
International Legal Exchange program.
Sister Law Schools
CEELI will assist each law school in Eastern Europe in establishing a sister
institution relationship with an American law school. CEELI will arrange exchange visits
of the two deans, who will then further develop the relationship as the circumstances of
the particular schools warrant.
Coordination
CEELI will, through its newsletter calendar, advisory boards, and country
coordinators, attempt to maintain an overview of legal assistance projects and activities
underway in Central and Eastern Europe. Once established, the Institute may tend to
become a natural locus for such activities, having the advantages of a facility in Eastern
Europe, a permanent staff, and an extensive network. As such, CEELI will be able to
serve as something of an umbrella for a wide variety of legal assistance projects.
CEELI will also be well positioned to coordinate otherwise ad hoc efforts,
collaborate with other initiatives, and identify both apparent overlap and opportunities
for extending ongoing programs -- in short, to serve as something of a clearinghouse.
CEELI may be able, for example, to offer support and continuity to such educational
programs as the Commerce Department Legal Seminar planned for Hungary and Poland
in May and the Cardozo Law School seven week Business Law Program scheduled for
Budapest this spring. The ABA, in addition to being the largest U.S. legal organization,
has immediate access to distinguished U.S. expertise in virtually all legal disciplines. It
MAY 03 '90 19:49 MILLER & CHEVALIER
P.5
is clear that many East European officials hope that the ABA, as an organization that
does not have some of the mixed objectives that ad hoc offers of assistance sometimes
carry, may be able to bring coherence to the currently uncoordinated scene and to serve
as a neutral source of advice and assistance.
CEELI is a Goal VIII Project of the ABA Section of International Law and
Practice, a project designed "to advance the rule of law in the world." CEELI will draw,
however, upon the full resources of the ABA, including its Sections, which are organized
along the lines of legal specialties, and its 365,000 members in the U.S. and abroad.
CEELI Co-chairs
Talbot "Sandy" D'Alemberte
Homer E. Moyer, Jr.
President-Elect-Designate, ABA
Chair-Elect, ABA Section of International
Law and Practice
U.S. Advisory Committee
James R. Silkenat
George C. Freeman
Chairman, ABA Section of International
Chair-Elect, ABA Business Law Section
Law and Practice
#
*
*
Mark S. Ellis
Mollie Miller
Executive Director, CEELI
Project Coordinator
202-638-0201 (Fax: 202-639-8238)
202-331-2295 (Fax: 202-331-2220)
March 28, 1990
Agency for International Development
Washington, D.C. 20523
Lawyers
Office of the
John
Miller
General Counsel
January 26, 1990
AIDISC
GC, John E. Mullen
697-8556
A LEGAL PROJECT FOR EASTERN EUROPE
The idea of a legal project for Eastern Europe is based on the
premise that the rule of law -- open, accessible, fair, and
predictable -- is fundamental to a functioning market economy and
political democracy. Without a rule of law to govern property
rights and responsibilities and to settle disputes, capitalism
becomes economic governance by permit. Without a rule of law to
establish and protect individual rights and freedoms, a free and
fair election can quickly become a dictatorship of the elected.
The rule of law can be said to be the bridge between market
economies and political democracies, the glue that holds them
together, and the discipline that permits them to work efficiently.
A. The American Experiment
The United States has a great deal to offer. Chief Justice
Marshall stated in Marbury V. Madison that,
"The government of the United States has been emphatically
termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation, if the laws
furnish no remedy for the violation of a vested legal right.'
1 Cr. 137, 163 (1803).
Although our legal tradition is common law not civil law as is the
case throughout Europe including Eastern Europe, the American
experience is particularly relevant to the economic and political
winds currently blowing there. Dean Pound quotes a "foreign
observer" as saying about our legal tradition that its
distinguishing marks are "unlimited valuation of individual liberty
and respect for individual property.
Nothing
could
be
more
relevant to countries with the twin goals of building democracy and
market-based economies.
Obviously the U.S. experience is but one that the Eastern
European nations will want to consider. At the most basic level,
the American concept of combining a written constitution that is
'Pound, "The Spirit of the Common Law", Marshall Jones Co., 13
(1921).
Rumania
3- way como - at one paint
copy of langt. - anusted an the spot
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2
the sole source of individual rights and liberties,² a federal
system with powers distributed between states and the federal
government, and federal powers separated among three independent
branches to check and balance each other, 18 unique in the world.
A prominent feature of our separated powers, the "American
development of the common law doctrine of supremacy of law, in our
characteristic institution of judicial power over unconstitutional
legislation" is a concept not shared fully by other common law
countries and at times in our history even has been attacked as
undemocratic because it undercuts popular responsibility.
Nevertheless, "Since World War II, while Americans have continued
to agonize over the justifiability of judicial review, more and
more other nations have looked to courts to enforce constitutional
norms Judicial review has become especially important in Germany
and Italy.' Above all, however, the unquestioned success and
longevity of the American experiment in both creating wealth and
protecting property rights and individual liberties make it a model
that should be understood in its fullest dimensions by the people
and leaders of Eastern Europe.
B. The Establishment of a Democratic Rule of Law; The Common Law
V. Civil Law
Moving from a highly centralized, attocratic system to a
popularly elected democractic system that respects individual and
property rights is an extremely complicated process. It involves
the kind of fundamental decisions the foregding discussion implies
about constitutions, judicial review and federalism. Many western
states have undergone this process in modern times, especially
since World War II, and most have created hybrid systems that
themselves can provide guidance to East Europeans. The
establishment of constitutional courts to provide judicial review
in parliamentary systems is an important example.
But whether in modern times or in the periods in which the
great western systems of law were established, the movement to a
rule of law invariably has accompanied and nurtured the unification
and welding of nations. This occurred in England as the common law
The question of whether the constitution is the sole source
has been debated. It involves the issue of substantive due process
and arguments sounding in concepts of natural law.
Pound at 3.
"see Thayer, "The Origin and Scope of the American Doctrine of
Constitutional Law, " 7 Harv. L. Rev. 129 (18$3), 1 Selected Essays
503 (1938), and Commager, Majority Rule and Minority Rights (1943)
5Gunther, "Cases and Materials on Constitutional Law.'
Foundation Press, 25 (10th Ed. 1980).
3
evolved from the 14th Century onward, in France in the period
surrounding the adoption of the Code Napplean in 1804, and in
Germany at the time of adoption of the Burgerliches Gesetzbuch
(Civil Code) in 1896. In America, not only was the establishment
of the rule of law in the constitutional process the bedrock
foundation of nationhood, it continued to be the cohesive element
in American society and the American political process. As Chief
Justice Taney commented on the role of the judiciary:
"This judicial power was justly regarded as indispensable, not
merely to maintain the supremacy of the laws of the United
States, but also to guard the States from any encroachment
upon their reserved rights by the general government
so long as this Constitution shall endure, this tribunal
must exist with it, deciding in the peaceful forms of judicial
proceeding, the angry and irritating controversies between
sovereignties, which in other countries have been determined
by the arbitrament of force. " 7
The move to a democratic rule of law also involves a process
of choice among the variations of common law and civil law systems
that have evolved in the West over time. The civil law concept,
derived from Roman law, is that of a closed system of rules in the
form of codes which judges may apply only is a mechanical fashion.
The strength of the common law is in its treatment of concrete
controversies, with judicial law-making through the decision of
particular cases. The strength of the civil law is in its logical
development of abstract conceptions.⁸
In practice, the systems merge to a substantial degree.
Modern common law systems also have statutory law and codes in
great abundance, 9 especially in fields relating to the efficient
⁶schlesinger, "Comparative Law", Foundation Press, 168-71 (2nd
Ed. 1959) "In his 'History of the English Speaking Peoples',
Winston Churchill again and again drives home an important point:
the focal role which the common law played in the process by which
England was welded into a nation.' Id. at 179,
7 Ableman v. Booth, 21 How. 506, 520-21 (1859).
a See Pound at 2.
However,
"
the very meaning of the word 'code' depends
on whether it is used by civilians or by lawyers brought up in the
common law tradition. In the eyes of the latter, a code is
supplemental to the unwritten law, and in construing its provisions
and filling its gaps, resort must be had to the common law. To the
civilain, a code is a comprehensive
tatement of the law.
In its interpretation, the court is always conscious of the
interrelation of all the provisions contained in the whole code,
4
functioning of a market economy such as commercial law,
corporations, securities and antitrust law. Judges
in
both
systems
interpret the codes and even in civil law countries their decisions
along with scholarly interpretation in effect create law. What we
presume the Eastern European countries will want to do is consider
the basic strengths of the many extant western legal systems, first
in terms of how well they promote and protect iberty and property
and then in terms of how well they permit and facilitate economic
growth. As noted above, this will be a complex undertaking that
goes far beyond whether the system is common law or civil law
based. It will require consideration of how much power they are
willing to entrust to government, how impatient they are to install
a modern legislated system, and the extent to which they wish to
commit power and decision-making to administrative bodies which
proceed extrajudicially. It also will require the most sensitive
consideration of history and demographics and how a foreign code or
system will work within the history and customs of the country
considering it.
When this framework thinking has been done, the East Europeans
then will be able to consider the many successful market economy
and democracy models. Japan, Germany and France, all civil law
countries, are, like the United States, Britain, Canada and
Australia, all capitalistic and all successful. They also are very
different in their approach to regulation, taxation, and the
relationship of the public and private sectors. The United States
can and should help in this sifting and winnowing process. As is
discussed in the following section, a law reform project may be the
appropriate approach for that aspect of the establishment of the
rule of law. As also is discussed in the following section, the
issue involves Institutions as well as lawe.
C.
The Role of the United States in Establishing a Rule of Law in
Eastern Europe; the Role of Lawyers, the Legal Profession, and
an A.I.D. Legal Project
If A.I.D. truly believes that its mission is development,
growth, political pluralism, and economic and political stability,
there can be no more important investment than an endeavor to
assist the countries of Eastern Europe in their quest for a form of
government and rule of law that permits free markets and individual
freedom to flourish. It would be folly to attempt to transplant
the American system in whole or in part; it would be greater folly
to fail to provide them the opportunity to understand and learn
and indeed in the entire code system.
The intention of the
legislator, where it can be ascertained, will not be disregarded.
Primarily, however, code construction is grammatical, logical and
teleclogical; in any event, it is free from historical
reminiscences reaching back into the period prior to the
preparation of the code." Schlesinger at 177-78.
5
from our experience.
This does not mean simply support for elections or efforts to
ensure that their laws governing joint ventures are congenial to
American investment, however valuable such efforts may be.
Elections alone do not create democracies. The establishment of a
democratic system is not a surface undertaking but one of the
greatest seriousness and profundity. The process of American
constitutional development was led by men of learning, wisdom, and
great depth. It involved debate on the highest theoretical and
most practical levels, among men trained in law or familiar with
legal theory; men familiar with Aristotle, Nontesquieu, and Locke,
as well as the already centuries old system of British common and
constitutional law, Roman Law, the Benaissance, and the
Reformation. To the extent that A.I.D. can facilitate the
availability of American constitutional and comparative legal
scholars to the leaders of Eastern Europe, It will pay far greater
dividends than exposure to current American methods of campaigning
and conducting elections.
But however wise the selection and establishment of forms and
systems of government and legal processes, it will fail if not well
implemented. The choice of legislative and executive forms is an
integral part of the establishment of the rule of law because those
institutions create and carry out law. Wisdom and competence among
the practioners in legislative and executive branches is essential
if an open, accessible, fair, and predictible rule of law is to
flourish. Training in these areas may be an important contribution
that legal and other experts from the United States can make.
Apart from the fundamental process of establishing the forms
and systems of government, a process in which those trained in law
must participate, the concept of a legal project relates most
directly to the judicial branch of government, the legal
profession, and the process of law revision and reform. An
efficiently functioning rule of law presumes a system of laws
relevent to the modern world, that comprehend the technology and
communications capabilities of the 1990s and how they relate to
personal freedoms and competitiveness in a global economy. A law
reform project, perhaps institutionalized in the form of a law
institute, may ultimately be what Eastern Europe needs the most.
It would permit the nations of Easteri Europe to consider
systematically the variety of approaches to corporate and
commercial law, taxation, trade, securities, antitrust,
environmental, civil rights and criminal law that the West has to
offer. In all probability, a survey of what now exists would be
the first step. Pre-World War II laws may remain in effect.
Modification rather than replacement night be in order.
Consideration would have to be given to the benefits of a regional
law reform or harmonization process given the multi-national nature
of modern business and economic relationships.
6
Many other interventions to assist the legal infrastructure or
the quality of the bar also might be possible and helpful. An
efficiently fuctioning rule of law presumes a working court
structure, accessibility to statutory and decisional law in
libraries and other repositories, a skilled and independent bar,
legal education and training, and broad accessibility to legal
representation. A working court structure may require attention to
the physical condition of the courts, the registries and dockets,
the non-lawyer support personnel from stenorypists to para-legals,
the facilities for gathering and preserving evidence in the
criminal justice system, and whatever else permits courts to
provide speedy trials and easy access to dispute settlement.
Accessibility to law may require the refurbishing of libraries or
more basically to printing and compiling laws and decisions. The
establishment of an independent bar might require the forming of
associations, attention to the estabishment/of firms or other forms
of group practice, and consideration of canons of ethics and rules
of conflict of interest. Legal education and training may require
not only exposure to modern codes and western legal thought and
systems, but also a fundamental examination of how law is taught.
The right to legal representation may require an expansion of the
legal profession as well as provision for accessibility by all
elements of society.
Although A.I.D. financing of legal projects has not been a
consistently high priority over the years, the rule of law has long
been seen as a key to development and all the foregoing elements
except the fundamental discussion of constitutional theory have
been touched on at some point in A.I.D. legal projects. On a small
scale, most of them currently are included in one of the two legal
projects being conducted in the English-speaking Caribbean islands.
Several considerations are absolutely critical. 1. The
American experience must not be forced but must be heard, in
conjunction with or apart from West Europeans and others who may be
interested in this process. 2. The American offer of assistance
must not be narrow. While help in the consideration of modern
legal codes that would facilitate the establishment of an efficient
market-oriented economy may be a high priority, a U.S. intervention
designed simply to facilitate investment would be a mistake. 3.
Because of the breadth of A.I.D. 's interest in development, it is
the appropriate U.S. agency to participate. And because we
represent the United States, it is appropriate for us to consider
participation at any or all of the levels discussed in this paper,
drawing on expertise in the many departments and agencies, such as
Commerce, interested in this process.
4.
The
full
resources
of
the diverse American academic and practicing legal profession must
be brought to bear. An organization like the American Bar
Association that comprehends all such lements could be an
appropriate implementing vehicle. 5. Time is of the essence. An
uncoordinated, ad hoc process of molding changes in law to meet
7
particular investments or other problems already is occurring.
Individuals and firms from throughout the world are selling or
donating their advice and other western nations and multilateral
organizations are offering advice as well
individuals in each country soon will be dominated by this ad hoc
The time of the key
process. A coordinated effort in which the American voice is heard
is paramount.
It is the consideration of all these myriad issues that A.I.D
must now address.
John E. Mullen 1/26/90
FINAL
The Rule of Law: An Overview
BY
JOHN NORTON MOORE
Walter L. Brown Professor of Law
University of Virginia School of Law
and
Chairman of the Board of Directors
United States Institute of Peace
AS
Co-Chairman of the American Delegation
to the Seminar on the Rule of Law
Moscow and Leningrad
March 19-23, 1990
The views expressed in this paper are those of the author and
do not necessarily reflect the views of the United States
government, the United States Institute of Peace, the
University of Virginia, or any other organization with which
the author is or has been affiliated.
"[W]hile the laws shall be obeyed all will
be safe."
Thomas Jefferson
Original draft of first Inaugural Address, March 4, 1801,
in 8 THE WRITINGS OF THOMAS JEFFERSON 1 (P. Ford ed. 1897).
The Rule of Law: An Overview
JOHN NORTON MOORE
I. Introduction
The world has long admired the rich cultural and artistic heritage of the peoples of the
Soviet Union, a heritage including writers, poets, and composers such as Tolstoy, Chekhov,
Pushkin, Dostoyevsky, Tchaikovsky and Brodsky, and the artistic brilliance of a Bolshoy
Ballet. As has been most evident in the Helsinki process, however, there has been great
international concern about the protection of fundamental human rights and freedoms within
the Soviet Union as well as about maintaining and promoting world order and the principles
of the United Nations Charter. For these reasons the ongoing international and structural
changes broadly identified with President Mikhail Gorbachev and programs of "glasnost" and
"perestroika" have been warmly received in the United States and elsewhere in democracies
throughout the world. The peoples of these democracies profoundly hope that these programs
will succeed-not simply endure-in transforming Soviet institutions to meet the concerns on
which there has been continuing engagement within the Helsinki process. In this connection,
no tenet of reform has seemed more promising than commitment to the rule of law, the
subject of these discussions. As recently stated by Foreign Minister Shevardnadze:
And surely no one can doubt that it [National strength] lies most of all in a
renewed, democratic, rule-of-law society, in a free people, in the free man.¹
Perhaps it is no coincidence that this focus on the rule of law-and indeed this welcome
discussion on the rule of law-takes place under the first Chairman in recent Soviet history
to be a lawyer.
The language of diplomacy is frequently a language of subtlety, indirection and omission.
The language of friendship, however, is a language of candor. As you can see, I have chosen
the language of candor and I deeply hope that this essential element of friendship will be a
hallmark of this path-finding exchange on the rule of law. As the Helsinki Final Act affirms,
the participating states "will respect each other's right freely to choose and develop its
political, social, economic and cultural systems as well as its right to determine its laws and
regulations." It is for the people of the Soviet Union to make the choices about fundamental
¹Excerpt from an October 23 Foreign Policy Report of Soviet Foreign Minister E. A.
Shevardnadze entitled "Foreign Policy and Perestroyka" reportedly delivered to a plenary
session of the Supreme Soviet in Moscow.
1
institutions and legal structures for their own society, consistent, of course, with the
fundamental commitments of the Helsinki process and international human rights covenants.
Indeed, it is a certainty that no outside group can be sensitive to all of the factors affecting
those choices. Nevertheless, I profoundly believe that the experience of the United States in
implementing the rule of law-an experience recently proudly celebrated in the bicentennial
of our Constitution-can be of great importance for the people of the Soviet Union as you
open up issues concerning the rule of law in Soviet society-just as the international
commitments made in the Helsinki process and in adherence to fundamental human rights
covenants are of great importance. In that spirit, I hope that these discussions between
American and Soviet experts will be followed by even more specific discussions on each of
the components of the rule of law. And I hope that to be most useful for all parties these
discussions will be full and frank.
The overview discussion which follows will first set forth what I believe to be major
tenets of the rule of law. It will then consider some essential components of limited
government and individual rights and freedoms in a representative democracy and some
essential components of the rule of law within an independent and democratic judicial
process. Finally, it will note the importance of the rule of law in international affairs and of
a robust legal profession. Throughout, this paper is guided by a spirit of candor, irrespective
of any possible philosophical differences perceived between and possibly even within
delegations.
П. Major Tenets of the Rule of Law
The "rule of law" collectively symbolizes the most important features of democratic
governance. Its core meaning is that governmental decisions must be rooted in the consent
of the governed, acting only through structures and procedures designed to prevent individual
oppression or governmental tyranny, which protect fundamental rights and freedoms, and
which are subject to appraisal by an independent judiciary rendering judgments based on law.
It stands in contrast to decisions based on naked power, arbitrary fiat, political expediency or
personal gain. But most meaningfully, it encompasses much more than simply the opposite
of these negative images. Individual judgments differ as to the core underpinnings of the rule
of law, but I believe there are at least five principal tenets-each with a number of
fundamental sub-tenets. These five highest-level tenets are:
government of the people, by the people, and for the people;²
separation of powers and checks and balances;
²For the origin of this phrasing, see President Abraham Lincoln's Gettysburg Address,
November 19, 1863.
2
representative democracy and procedural and substantive limits on governmental
action against the individual (the protection of human freedom and dignity);
limited government and federalism; and
review by an independent judiciary as a central mechanism for constitutional
enforcement.
Let us review each of these basic general tenets in turn.
government of the people,
by the people, and for the people
Overwhelmingly, philosophers and political theorists have rooted the authority of
democratic governance in the people-not in the few or an assumed elite. Thus, to Aristotle
"
in democracies the people are supreme
n3
John Locke viewed government as being
based on popular consent and wrote that governmental actions exceeding the laws are
"without authority."4 In a famous phrase discussing abuse of power, he concluded:
"[w]herever law ends, tyranny begins
"5
Echoing these premises, the American
Declaration of Independence provides:
We hold these truths to be self-evident, that all men are created equal; that
they are endowed by their Creator with certain unalienable rights; that among these
are life, liberty, and the pursuit of happiness. That, to secure these rights,
governments are instituted among men, deriving their just powers from the consent
of the governed
6
Adopted less than three weeks earlier, the Virginia Bill of Rights provides: "[t]hat all power
is vested in, and consequently derived from, the people
n7
This is emphatically not the
concept of the unchallengeable general will underlying the philosophy of Jean Jacques
Rousseau under which "the public must be taught to know what it wants."8
³ARISTOTLE, POLITICS (ca. 325 B.C.).
4J. LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT (1690).
⁵Id.
⁶The Declaration of Independence (U.S. July 4, 1776).
⁷From Article 2 of the Virginia Bill of Rights (June 12, 1776).
⁸J.J. ROUSSEAU, THE SOCIAL CONTRACT (1762). Needless to say, the Western democratic
conception of "government of the people, by the people, and for the people" also is
emphatically not the inverted social contract of Rousseau as reflected in his social contract
3
Corollaries of this first principle that the authority of law comes from the governed are:
constitutions should embody the fundamental compact with the people-such
constitutions should serve as the highest form of law to which all other laws and
governmental actions must conform. As such, constitutions should embody the
fundamental precepts of a democratic society rather than serving to incorporate ever-
changing laws more appropriately dealt with by statute. Similarly, governmental
structures and actions should seriously conform with constitutional norms, and
constitutions should not be mere ceremonial or aspirational documents;
legislatures and chief executives should be popularly elected under a system which will
ensure frequent accountability. Elections must in practice be fully fair, open and
meaningful. Mechanisms, such as initiative and recall, might be devised to keep
elected officials close to the people;
there should be no merger of a political party with the state or control of the
electoral process by a political party. It is the freely elected representatives of the
people, acting through governmental structures such as the legislative and executive
branches, which should govern the state; and
the constitutional system should provide for reasonable change and amendment as
conditions and the popular will change.
separation of powers and checks and balances
A principal underpinning of much writing on democratic governance and the rule of law
is that governmental structures should be constructed through a separation of powers and
checks and balances to prevent governmental tyranny. Thus, Montesquieu wrote in The Spirit
of the Laws in 1748:
The political liberty of the subject is a tranquillity of mind, arising from the
opinion each person has of his safety. In order to have this liberty, it is requisite
the government be so constituted as one man need not be afraid of another.
When the legislative and executive powers are united in the same person, or
in the same body of magistrates, there can be no liberty; because apprehensions
may arise, lest the same monarch or senate should enact tyrannical laws, to execute
them in a tyrannical manner.
Again, there is no liberty, if the judicial power be not separated from the
legislative and executive. Were it joined with the legislative, the life and liberty of
the subject would be exposed to arbitrary control; for the judge would be then the
oath for his proposed Constitution for Corsica, which provides: "I join myself, body, goods,
will and all my powers, to the Corsican nation, granting her ownership of me, of myself and
all who depend on me." Printed in C.R. VAUGHAN (ed.), 2 THE POLITICAL WRITINGS OF
ROUSSEAU 250 (2 volumes, Cambridge, 1915). See also Chapter 1 in P. JOHNSON,
INTELLECTUALS (1988).
4
legislator. Were it joined to the executive power, the judge might behave with all
the violence of an oppressor.⁹
The connection between this principle of separation of powers and the rule of law was vividly
reflected in the Constitution of the State of Massachusetts adopted in 1780:
In the government of this Commonwealth, the legislative department shall never
exercise the executive and judicial powers, or either of them: The executive shall
never exercise the legislative and judicial powers, or either of them: The judicial
shall never exercise the legislative and executive powers, or either of them: to the
end it may be a government of laws and not of men. 10
And this principle was a major underpinning of the United States Constitution. As James
Madison wrote in The Federalist papers, explaining the new Constitution:
No political truth is certainly of greater intrinsic value or is stamped with the
authority of more enlightened patrons of liberty than that on which the objection
is founded. The accumulation of all powers legislative, executive and judiciary in
the same hands, whether of one, a few or many, and whether hereditary, self
appointed, or elective, may justly be pronounced the very definition of tyranny.
Were the federal constitution therefore really chargeable with this accumulation of
power or with a mixture of powers having a dangerous tendency to such an
accumulation, no further arguments would be necessary to inspire a universal
reprobation of the system. 11
Similarly, this principle was a fundamental tenet of the 1789 French Declaration of the Rights
of Man where it was said: "Any society in which the guarantee of the rights is not secured,
or the separation of powers not determined, has no constitution at all. n12
It should be noted that the principle of separation of powers does not stand in
opposition to a strong legislature or a strong executive. Indeed, it is partly rooted in the
functional attributes and efficiencies of each branch in respectively making, applying and
enforcing the laws (as well as the executive role in foreign affairs). And it is critically
complemented by checks and balances, such as, for example in the American system, the right
of the Executive to veto legislation, the right of the Senate to withhold advice and consent
⁹MONTESQUIEU, THE SPIRIT OF THE LAWS (1748).
10 The Constitution of the Commonwealth of Massachusetts, "Part the First," art. XXX
(1780), reprinted in M. CONNOLLY, THE CONSTITUTION OF THE COMMONWEALTH OF
MASSACHUSETTS 3, 10 (1984).
¹¹THE FEDERALIST No. 47, at 324 (J. Madison) (J. Cooke ed. 1961).
12 Article 16 of the Declaration of the Rights of Man and the Citizen (August 26, 1789).
5
to a treaty, and the requirement that Congress rather than the Executive "declare War" and
"raise and support Armies." It should also be noted that an independent judiciary is a major
corollary of this principle of separation of powers. Moreover, the Framers of the United
States Constitution, recognizing the potential great power of the legislature in making laws,
provided checks and balances even within the legislature by providing for a bicameral
legislature elected by differing constituencies and for different terms. Finally, it should be
noted that if separation of powers and checks and balances are avoided by unitary party
control of all branches of government then the benefits of this fundamental underpinning of
the rule of law could be easily lost. This is yet another reason for avoiding a merger of a
political party with the state.
representative democracy and
procedural and substantive limits on
governmental action against the individual
(the protection of human freedom and dignity)
Every democracy faces the problem of how to protect fundamental human freedom and
dignity against governmental action-whether arbitrary or mandated by a majority. The most
important and recurrent answer to this issue has been to provide constitutional guarantees
of basic human freedoms-frequently denominated as a "bill of rights." Other partial answers,
however, involve building in checks against factionalism and hasty laws through representative
democracy, bicameralism and cautious modes of legislative deliberation and action, as well as
endowing government only with limited authority not extending to compromising such basic
freedoms. Among other examples of a "bill of rights" approach, in 1215 the Magna Carta
extracted a series of rights as pledges from a reluctant King John. This included the rights:
No free man shall be taken or imprisoned or dispossessed, or outlawed, or
banished, or in any way destroyed, nor will we go upon him, nor send upon him,
except by the legal judgment of his peers or by the law of the land.
To no one will we sell, to no one will we deny, or delay right or justice. 13
Similarly, following the revolution of 1688, the British Parliament extracted a "bill of rights"
from the Crown. The State of Virginia adopted the Virginia Bill of Rights in 1776; in 1789
during the early months of the French Revolution, the National Constituent Assembly
formulated a "Declaration of the Rights of Man and of the Citizen"; and following a major
debate about the new Constitution, the first Congress of the United States formulated the Bill
of Rights which was ratified by the states effective December 15, 1791. Next year America will
celebrate the bicentennial of this Bill of Rights of fundamental freedoms. Time has confirmed
13 Magna Carta, nos. 39 & 40 (1215) (numbers omitted).
6
their importance to an enduring democratic government. It should also be noted that the
protection of fundamental rights extends both to substantive and procedural rights, including
essential procedural elements incorporated in American law in the concept of due process
of law. The cornerstone of the criminal justice system, as well as of administrative law, is
these concepts of procedural due process. Finally, it should be noted that protection of
fundamental liberties is seen as sufficiently essential to democratic governance and the rule
of law that many political theorists have stressed the protection of such freedoms as a
fundamental objective of democratic governance without which no government can be just.
Aristotle wrote in Politics: "The basis of a democratic state is liberty; which, according to the
common opinion of men, can only be enjoyed in such a state;-this they affirm to be the great
end of every democracy." The Declaration of Independence speaks of securing "life,
liberty, and the pursuit of happiness" as the very reason for government, and the preamble
of the United States Constitution includes among the reasons for establishing the
Constitution: to "secure the Blessings of Liberty to ourselves and our Posterity
Certainly there can be no meaningful rule of law which does not protect fundamental human
freedom and dignity as a very reason for government.
limited government and federalism
Yet another underpinning of the rule of law is the related principles of limited
government and federalism. As has just been discussed, the principle of a limited government
of enumerated powers has been one partial answer to the protection of fundamental
freedoms. Indeed, in The Federalist papers, Alexander Hamilton urged that the limited powers
of the new federal constitution made a specific bill of rights unnecessary. Limited central
government, however, serves another important function in the rule of law in maximizing
regional and local control of governmental functions principally affecting peoples at a local
level. In this context, limited government and federalism divide governmental authority
between a central government, which should have authority in issues of defense, foreign
policy, interstate commerce and other issues of governance affecting citizens on a national
basis, and regional and local governmental authorities, which should have authority in issues
of governance such as municipal services and education primarily affecting citizens on a more
local basis. This principle simultaneously makes government more responsive to and
controllable by the people and encourages a diversity in public policies adopted within
different regions according to local conditions, needs, traditions and desires. It directly
incorporates an insight of participatory democracy that groups affected by decisions should
have a voice in those decisions. As correctly perceived, it does not detract from strong federal
authority in the areas where authority must be and is centralized in a national government.
Adjusting the boundaries between the federal and regional governmental units and
14 ARISTOTLE, POLITICS (ca. 325 B.C.).
7
maintaining a proper balance is necessarily the essence of a large body of law in any federal
system. Federalism, of course, assumes an at least initial voluntary acceptance by constituent
units.
judicial review by an independent judiciary
as a central mechanism for constitutional enforcement
An independent judiciary is a critical component of the principle of separation of
powers, as well as of an effective principle of constitutionalism in embodying and realizing
the major conditions of the consent of the governed. 15 Because of the great importance of
judicial review as a central mechanism for constitutional enforcement and for maintenance
of the rule of law, however, I believe that it should be considered a fundamental principle in
its own right. Indeed, no principle in the American experience has been more important in
maintaining the integrity of the major constitutional underpinnings of the rule of law than
has the principle of independent judicial review. Thus, the Supreme Court has in the 1962
reappointment decision of Baker v. Carr¹⁶ sought to police the integrity of the "one person
one vote" principle underlying government of the people, by the people, and for the people.
In major decisions such as INS v. Chadha,¹⁷ in which the Court in 1983 struck down the
so-called "legislative veto," the Court has policed the critical workings of separation of powers
and checks and balances. The Court has since its earliest days been repeatedly concerned with
maintaining a proper balance in issues of federalism. And perhaps its most vital role has been
in protecting the fundamental rights and freedoms of individuals against encroachment by
federal and state action. As the Framers correctly foresaw, the judicial power could not be
¹⁵The "Introduction" to Melone and Mace, Judicial Review and American Democracy
(1988), roots judicial review in the belief that the Constitution is the Supreme expression
of the people's will." Thus, it says:
The ultimate and necessary foundation upon which judicial review rests is the
belief that the Constitution is the supreme expression of the people's will. Since it
results from the acts of the people in their constituent capacity, it is fundamental
law embodying the people's determination of the proper division and extent of
governing authority between the various branches of the national government;
between the central government and the state governments; between the national
government and individuals; and, especially under the expanded application of the
Fourteenth Amendment, between state governments and individuals.
Id. at 3. The Federalist No. 78 (Hamilton) provides perhaps the strongest indication in
constitutional history that the Framers contemplated judicial review concerning issues of
constitutional consistency.
16 Baker V. Carr, 369 U.S. 186 (1962).
17 INS V. Chadha, 462 U.S. 919 (1983).
8
subsumed within the executive or legislative branches consistent with effective exercise of the
judicial role in policing these principles of the rule of law. Indeed, judicial review by an
independent judiciary may be the only way to effectively ensure the supremacy of the
Constitution. The realization of this point was an essential element in the reasoning of Chief
Justice John Marshall in the landmark decision of the Supreme Court in the 1803 case of
Marbury v. Madison, 18 setting out the doctrine of "judicial review" by declaring for the first
time an act of Congress unconstitutional. Thus, Marshall wrote:
Certainly all those who have framed written constitutions contemplate them
as forming the fundamental and paramount law of the nation, and, consequently,
the theory of every such government must be, that an act of the legislature,
repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and, is
consequently, to be considered, by this court, as one of the fundamental principles
of our society. It is not therefore to be lost sight of in the further consideration of
this subject.
If an act of the legislature, repugnant to the constitution, is void, does it,
notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or,
in other words, though it be not law, does it constitute a rule as operative as if it
was a law? This would be to overthrow in fact what was established in theory; and
would seem, at first view, an absurdity too gross to be insisted on. It shall, however,
receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases, must of necessity expound
and interpret that rule. If two laws conflict with each other, the courts must decide
on the operation of each.
So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide that
case conformably to the law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such
ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be
considered, in court, as a paramount law, are reduced to the necessity of
maintaining that courts must close their eyes on the constitution, and see only the
law.
This doctrine would subvert the very foundation of all written constitutions.
It would declare that an act which, according to the principles and theory of our
government, is entirely void, is yet, in practice, completely obligatory. It would
declare that if the legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual. It would be giving
to the legislature a practical and real omnipotence, with the same breath which
18 Marbury V. Madison, 5 U.S. 137 (1803).
9
professes to restrict their powers within narrow limits. It is prescribing limits, and
declaring that those limits may be passed at pleasure. 19
A genuinely independent judiciary, of course, requires not only a doctrine of judicial review
but also scrupulous protection of the independence of the judiciary in form and in fact.
Details of appointment, tenure, salary, status, training and removal must all be resolved to
preserve and strengthen that independence. Similarly, the selection of judiciary must not be
on a partisan basis and should ensure the selection of the most qualified legal experts. And
the legal profession, as well as the government and society as a whole, must internalize the
independence of the judiciary and the important reasons for it.
III. Some Essential Components of
Limited Government and Protection of Individual
Rights and Freedoms in a Representative Democracy
As has been discussed, major tenets of the rule of law in a representative democracy
include limited government and constitutional limits on governmental action against the
individual. In turn, these tenets include a broad range of substantive and procedural
components. Some such components widely regarded as essential include the following:
preserving a climate of
free discussion and opinion
Nothing is more essential to the proper functioning of representative democracy than
maintaining a climate of free discussion and opinion. This requires maintenance of freedom
of speech; freedom of assembly; free and vital television, radio and newspaper media; freedom
to petition government for redress of grievances; a free and vital publishing industry;
academic freedom in institutions of higher learning; protection of exchange in the legislative
process and depoliticization of governmental information efforts. Ultimately, an informed and
involved citizenry is the lifeblood of democracy. As Thomas Jefferson reminds us:
¹⁹Id. at 176-78 (Opinion of the Court).
20The discussion which follows is emphatically not a complete list of fundamental
components of the major tenets of limited government and constitutional limits on
governmental action against the individual. The rights to travel and emigrate and the right
to privacy, for example, are also fundamental.
10
If a nation expects to be ignorant and free, in a state of civilization, it expects what
never was and never will be.2¹
Protecting the necessary climate of free discussion and opinion is a crucial role of the rule
of law.
fairness in criminal process
An essential element in the relationship of government to its citizens is the maintenance
and operation of a criminal process. Protection of the fairness and integrity of that process
is an essential element of the rule of law, The Magna Carta and numerous bills of rights
throughout human history attest to the importance of such fairness. Indeed, the fourth, fifth,
sixth and eighth amendments in the Bill of Rights to the United States Constitution directly
relate to the fairness of criminal processes, including requirements concerning search and
seizure (the fourth amendment); protection against double-jeopardy and self-incrimination
(the fifth amendment); the rights to a speedy and public trial by an impartial jury, to be
informed of all charges, to be confronted with adverse witnesses, to have compulsory process
for obtaining witnesses and to have the assistance of counsel in defense (the sixth
amendment); and prohibition of excessive bail or fines and of cruel and unusual punishment
(the eighth amendment). Perhaps the most important guarantee undergirding the protection
of the individual against the state in criminal trials, however, is the presumption of innocence
until proven guilty. Similarly, the right of habeas corpus, appellate review of criminal
convictions, and fairness in sentencing and subsequent treatment are also vital. Also of great
concern, the criminal process must not be politicized or used for the punishment of political
dissidents.
Fairness in criminal process is not a monopoly of systems rooted in either common or
civil law traditions. It is, however, a function of adherence to certain minimum standards such
as advance promulgation of law, protection against unreasonable searches and seizures or
unreasonable criminal charges, a high standard of proof by the finder of fact such as proof
beyond a reasonable doubt, an impartial trial with an opportunity for an adequate defense,
a right to independent advice of defense counsel, a strict separation of prosecutorial and
judging functions, independent judges, and reasonable and proportional sentencing. While all
traditions can be rooted in the rule of law, I prefer the adversarial process of the common
law tradition as providing greater protection for an accused and a more vigorous search for
the truth, among other advantages. Of possible interest, a growing body of empirical social
21 'Letter to Colonel Charles Yancey, January 6, 1816," in 11 THE WORKS OF THOMAS
JEFFERSON 497 (P. Ford ed. 1905).
11
science evidence seems to support popular preference for an adversarial process involving a
genuinely independent adversarial defense over an inquisitorial model. 22
protection of religious freedom
The maintenance of religious freedom is one of the oldest and most important
components of individual freedom. Thus, ensuring religious freedom is an essential
component of the rule of law. Again, the importance of such freedom is attested throughout
human history. It is a central component of, among other historic indicators, the Magna Carta
in 1215, Roger Williams' "Bloudy Tenent of Persecution for Course of Conscience" in 1644,
the Maryland Toleration Act of 1649, the Virginia Bill of Rights of 1776, Thomas Jefferson's
masterful Virginia Statute for Religious Freedom in 1786, 23 and the first amendment to the
United States Constitution as ratified in 1791. Religious freedom encompasses at least two
vital and interrelated principles-the free exercise of religion and the non-establishment of
religion. To avoid interference with the free exercise of religion, as well as to maintain
consistency with the underlying purposes of non-establishment of religion, it would seem
essential also that government not establish a doctrine of non-religion, just as it must not
establish a particular religion. Finally, the full protection of religious freedom may require
strong and effective civil rights laws to protect against discrimination on religious grounds.
protection of civil rights
A democratic society must ensure equality before the law and the protection of minority
and even disadvantaged majority populations. The United States fought a civil war in the long
struggle for effective realization of this principle, and with the Supreme Court leading the way
in Brown V. Board of Education²⁴ in 1954, the Nation has taken this principle to heart.
Today such civil rights, including protection against discrimination based on race, gender, or
22See, e.g., E.A. LIND & T.R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL
JUSTICE (1988). Cross-cultural aspects of this research indicate key findings are likely
applicable to European conditions. Id. at 129-45.
23 The importance in Jefferson's mind of the Statute of Virginia for Religious Freedom
is reflected in the epitaph he chose for his tombstone:
Here was buried
Thomas Jefferson
Author of the Declaration of American Independence
of the Statute of Virginia for religious freedom
& Father of the University of Virginia
24 Brown V. Board of Education of Topeka, 347 U.S. 483 (1954).
12
religion, are protected not only against abusive governmental action by constitutional
principle, but also against both state and private action by a growing network of civil rights
laws. Such laws are a vital component of the rule of law in a modern democratic society.
accountability of governmental
officials and protection of governmental processes
Any modern democratic society must have a vital network of laws to ensure
accountability of governmental officials and protection of governmental processes and rational
decision. Such laws may include measures to facilitate petition of government for redress of
grievances, "freedom of information" laws, "sunshine" laws, private suits against government
or government officials in certain cases, agency inspectors general, "whistle blower" laws,
"impact statements" required before decision (used particularly in the environmental area),
ombudsman, conflict of interest laws, administrative remedies and appeals, and even
independent counsel (though this check remains controversial in the United States).
protection of the rights of workers
Certainly every genuine democracy should seek to protect the rights of workers. Indeed,
that is a major philosophical premise underlying the Soviet system. Yet, as the emergence of
Solidarity in Poland illustrates, the rights of workers can be abridged by the state at least as
thoroughly as by private employers. The developed nations have created a detailed labor law
centering on the rights of workers to organize and bargain collectively and on the
maintenance of a safe and healthy work environment. The development and enforcement of
such a body of labor law would seem an important component of the rule of law in a modern
democratic society.
civilian control of the military
Many democratic societies have stressed the essential nature of civilian control of the
military. In the United States this is guaranteed not only by important constitutional
provisions concerning legislative control over military appropriations and appointments, but
is also an essential element of the military's own code of professionalism. Similarly, the
military follows a tradition that is nonpolitical. And, of course, this principle of civilian
control of the military also applies to civilian control of intelligence agencies. 25 Both
military and intelligence agencies must operate under the rule of law and constitutional structures.
25 See generally Chapter 19 in NATIONAL SECURITY LAW (J. MOORE, R. TURNER AND F.
TIPSON eds. 1990) for measures ensuring civilian control of intelligence agencies within the
United States and the operation of such agencies within the rule of law.
13
protecting the environment
One major reason for governmental intervention in a market economy is protection
against "externalities" such as environmental damage. Because of the potentially great societal
cost of environmental damage, insuring that environmental costs will be adequately
considered and that high standards of environmental protection are met is an essential role
of modern democratic governance. Moreover, because governmental actions and projects, if
not directly accountable and if identified with government itself, have an equal if not greater
potential for ignoring environmental costs than private sector actions, vigorous protection of
the environment is essential in all systems.
protecting economic freedom and entitlements
Perhaps no issue in the past has proceeded as thoroughly on different philosophical
premises as the protection of economic freedom and property rights. The developed
democracies, with a tradition of John Locke and market-oriented economies, have
traditionally protected economic freedom and individual property rights. The Soviet system,
however, has followed Marx and Engels in the abolition of many forms of private property.
Thus, John Locke, in his Second Treatise of Civil Government in 1690, wrote at length in
support "of property." And the breadth of support for this principle is illustrated by the 1789
French Declaration of the Rights of Man, which begins article 17 with the preamble "Property
being a sacred and inviolable right
Yet the Communist Manifesto provides in relation
to certain private property: "the theory of the Communists may be summed up in the single
sentence: Abolition of private property."
Clearly, market-oriented economies are a major feature of the rule of law in developed
societies based on Western democratic values. The economic success of those societies, not
only in enhancing overall production of goods and services, but also in broadly delivering
consumer goods and services, speaks with the normative force of facts. Increasingly, however,
the literature in the West has also shown a powerful connection between economic freedom
generally, including private property rights, and both individual freedom and overall societal
levels of freedom and success of governmental structures. Thus, property rights and freedom
in the economic sphere are increasingly recognized as essential components of human
freedom. For if tight control of property enables pervasive state control of the individual,
then freedom can be lost as effectively as through the denial of civil and political freedoms.
Indeed, Professor Charles A. Reich writes in a famous article on "The New Propertyⁿ²⁶ that
²⁶C. Reich, "The New Property," 73 YALE L.J. 733 (1964).
14
"[t]he institution called property guards the troubled boundary between individual man and
the state. n27 And further:
At the very least, it is time to reconsider the theories under which new forms
of wealth are regulated, and by which governmental power over them is measured.
It is time to recognize that "the public interest" is all too often a reassuring
platitude that covers up sharp clashes of conflicting values, and hides fundamental
choices. It is time to see that the "privilege" or "gratuity" concept, as applied to
wealth dispensed by government, is not much different from the absolute right of
ownership that private capital once invoked to justify arbitrary power over
employees and the public.
Above all, the time has come for us to remember what the framers of the
Constitution knew so well-that "a power over a man's subsistence amounts to a
power over his will." We cannot safely entrust our livelihoods and our rights to the
discretion of authorities, examiners, boards of control, character committees,
regents, or license commissioners. We cannot permit any official or agency to
pretend to sole knowledge of the public good. We cannot put the independence of
any man
wholly in the power of other men. 28
And, of particular relevance in a system in which the individual must rely heavily on
government "entitlements," a central thrust of this article by Professor Reich is the
importance of protecting these state-controlled "entitlements" as "the new property" against
arbitrary or politicized government denial. Moreover, the roles of private property in
providing individual incentive and as a prerequisite for voluntary exchange which is the basic
mechanism of decentralized market systems has long been recognized in the developed
democracies. Indeed, of particular interest, there is a growing feeling among many in the West
that political systems which broadly limit private property rights may not be able to adopt
more open governmental processes without also adopting greater economic freedom-going
far beyond efforts at greater decentralization of governmental planning. For the resulting
inefficiencies in relatively centralized governmental setting of prices, as opposed to the
decentralized actions of markets, may inevitably lead either to popular efforts at fundamental
change in government structures or to massive emigration, as was most recently evident in
the events in the German Democratic Republic following the courageous and internationally
applauded dismantlement of the Berlin Wall. A discussion of this potential linkage between
freedom in the economic sphere and freedom elsewhere appears in the Economic Report of
the President transmitted to the United States Congress in February 1982. Chapter two of this
report on "Government and the Economy" begins:
²⁷Id.
28Id. at 787.
15
Political freedom and economic freedom are closely related. Any comparison
among contemporary nations or examination of the historical record demonstrates
two important relationships between the nature of the political system and the
nature of the economic system:
All nations which have broad-based representative government and civil
liberties have most of their economic activity organized by the market.
Economic conditions in market economies are generally superior to those
in nations (with a comparable culture and a comparable resource base) in
which the government has the dominant economic role.
The evidence is striking. No nation in which the government has the dominant
economic role (as measured by the proportion of gross national product originating
in the government sector) has maintained broad political freedom; economic
conditions in such countries are generally inferior to those in comparable nations
with a predominantly market economy. Voluntary migration, sometimes at high
personal cost, is uniformly to nations with both more political freedom and more
economic freedom.
The reasons for these two relationships between political and economic
systems are simple but not widely understood. Everyone would prefer higher prices
for goods sold and lower prices for goods bought. Since the farmer's wheat is the
consumer's bread, however, both parties cannot achieve all they want. The most
fundamental difference among economic systems is how these conflicting
preferences are resolved.
A market system resolves these conflicts by allowing the seller to get the
highest price at which others will buy and the buyer to get the lowest price at which
others will sell, by consensual exchanges that are expected to benefit both parties.
Any attempt by one party to improve his outcome relative to the market outcome
requires a coercive activity at the expense of some other party. The politicization
of price decisions-whether of wages, commodities, or interest rates-tends to
reduce both the breadth of popular support for the government and the efficiency
of the economy. A rich nation can tolerate a good bit of such mischief, but not an
unlimited amount. One should not be surprised that all nations in which the
government has dominant control of the economy are run by a narrow oligarchy
and in most economic conditions are relatively poor. In the absence of limits on the
economic role of government, the erosion of economic freedom destroys both
political freedom and economic performance.
Only a few dozen nations now guarantee their citizens both political and
economic freedom. The economic role of government in these nations differs
widely, without serious jeopardy to political freedom. Within the range of
experience of the United States and the other free nations, the relation between the
political system and the government's economic role is more subtle. Expansion of
the economic role of the government tends to reduce both the level of agreement
on government policies and the inclination to engage in political dissent. The link
between political and economic freedom is important. Increasing economic freedom
will also provide greater assurance of our political freedom.
A major objective of this Administration's economic program is to reduce the
Federal Government's role in economic decisionmaking while strengthening the
16
economic role of individuals, private organizations, and State and local
governments. This shift will entail substantial reductions in the size and number of
Federal spending programs, significant reductions in both personal and business
Federal tax rates, major reforms of Federal regulatory activities, and a reduced rate
of money growth. While an important element in this redefinition of the Federal
Government's economic role is a political judgment about the appropriate
relationship among individuals, the States, and the Federal Government, this
redefinition also is supported by an extensive body of economic analysis.²⁹
Similarly, Justice Antonin Scalia, now of the United States Supreme Court, wrote in a book
published in 1987:
I know no society, today or in any era of history, in which high degrees of
intellectual and political freedom have flourished side by side with a high degree
of state control over the relevant citizen's economic life. The free market, which
presupposes relatively broad economic freedom, has historically been the cradle of
broad political freedom, and in modern times the demise of economic freedom has
been the grave of political freedom as well.³⁰
Finally, quite apart from the considerable issues of whether it is necessary and of the costs
to individual freedom and governmental systems from any such effort, questions are being
raised in the West concerning the internal consistency of efforts to avoid exploitation of man
by man through a denial of private property rights and economic freedom. That is, it has been
argued that any thorough-going effort to ensure approximate economic equality requires the
socialization of both economic success and economic failure. But, if so, does not this in turn
29 Chapter 2 "Government and the Economy," from the Annual Report of the Council of
Economic Advisers, in ECONOMIC REPORT OF THE PRESIDENT, TRANSMITTED TO THE
CONGRESS FEBRUARY 1982, at 27-28 (1982). This chapter also contains a good summary
statement of the macro-economic case for limited governmental intervention in private
markets. These include: "externalities" (positive and negative), "monopoly," "public goods,"
"income redistribution" and "macroeconomic stability." It also contains an interesting
discussion of the theoretical reasons for "government failure" as opposed to "market failure"
dealt with above as settings for limited government intervention. These include the political
process as "overly responsive to special interest groups," inefficiencies in "supply by
government agencies," a failure to maximize responses to "diversity of conditions and
preferences," "limits on information" and the over-discounting by government decisionmakers
of programs which impose costs today in return for future benefits. See id. at 29-42.
As these theoretical points illustrate, modern democratic governance in a market
economy has ample latitude for taxation and regulatory intervention (exercise of the "police
power") to protect workers, consumers, investors and the environment without banning or
overburdening the market economy itself.
³⁰A. Scalia, Economic Affairs as Human Affairs, in ECONOMIC LIBERTIES AND THE
JUDICIARY 31, 32 (J. DORN & H. MANNE eds. 1987).
17
mean that inevitably there will be systematic exploitation of some groups (the economically
successful) by others (the economically unsuccessful)? And, moreover, public officials, who
have a major role in directing the economy in a non-market system, will have power, motive,
and opportunity to do some exploiting of their own in a more direct way. 31 Whatever the
answers to these questions, it is increasingly clear that the protection of economic freedom
is an essential component of the rule of law in a modern democratic society. I believe that
addressing this issue fully and progressively is as important as any in the overall process of
"perestroika."32
IV. Some Essential Components of The Rule of Law
Within an Independent and Democratic Judicial Process³³
Just as the fundamental tenets of limited government and protection of individual rights
and freedoms depend importantly on a number of essential components, so, too, the rule of
law within an independent judicial process depends on a number of essential components.
These include:
the supremacy of constitutional guarantees within the judicial process;
the principle, "nullum crimen, nulla poena, sine lege" (literally meaning that without a
law, there can be no crime and no punishment), that there can be no penalty without
prior, publicly known and reasonably specific laws.³⁴ It should be emphasized that
³¹See generally S. ARNOLD, MARX'S RADICAL CRITIQUE OF CAPITALIST SOCIETY: A
RECONSTRUCTION AND CRITICAL EVALUATION (1990).
32 What is liberalized directly, of course, should not be banned indirectly through
continuing criminalization of "profit," vaguely defined "speculation," or pervasive bureaucratic
control.
33 One can also speak of essential components of the rule of law within a democratic
legislative process. These would certainly include a presumption of openness in publication
of draft laws and debate before adoption and other measures concerning due process within
the legislative process, and anti-corruption measures, among others. For a general discussion
of the legislative process, see J. DAVIES, LEGISLATIVE LAW AND PROCESS (2d ed. 1986), W.
ESKRIDGE & P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE
CREATION OF PUBLIC POLICY (1988), C. NUTTING & R. DICKERSON, CASES AND MATERIALS
ON LEGISLATION (5th ed. 1978).
³⁴A seemingly similar statement was apparently made by President Mikhail Gorbachev
at the Nineteenth Party Conference: "[W]e must adhere strictly to the principle that
everything that is not prohibited by law is permitted." "Gorbachev Report Sizes Up
Restructuring," 40:26 CURRENT DIG. OF THE SOVIET PRESS 7, 19 (Jul. 27, 1988).
18
secret laws and regulations, unknown to those to whom they will be applied, are
fundamentally inconsistent with the rule of law;
the principle of decisions based on law, stemming from an analysis of the functional
intent of the lawmaker as opposed to political factors, party affiliation, personal gain
or arbitrary fiat. The essence of an independent judicial process is judging based on
rational analysis of the law and its underlying policies as applied in a specific case;
the principle that "like cases should be treated alike";
the principle that reasons should be given for decisions, that the reasons given should
be candid for appraisal by others, and that such opinions should be published and
made widely available to lawyers and in specialized libraries;
the principle that judges should defer to clear higher authority within a system,
whether it is a constitution, a legislative enactment, or a higher court within an
overall judicial system. That is, in constitutional interpretation the judge is not
superior to the Constitution, in statutory interpretation the judge is not superior to
a clear intent of the legislature, and a judge is bound to follow a ruling on point of
a higher judge within an overall judicial system.
These and other principles underlying the judicial process, including principles of
interpretation, are not self-defining, and a rich body of jurisprudential writing addresses their
meaning and effect. In particular, the legal realists have taught us that judicial decisionmaking
is inevitably a process involving choice in rule selection, fact selection, and semantic and
syntactic interpretation.35 While opinions differ as to the precise content and effect of such
principles, however, there is widespread agreement on their importance to the rule of law.
Professor John Jeffries of the University of Virginia says of the rule of law in the context
of the "vagueness" issue in this tenet:
The evils to be retarded are caprice and whim, the misuse of government power for
private ends, and the unacknowledged reliance on illegitimate criteria of selection.
The goals to be advanced are regularity and evenhandedness in the administration
of justice and accountability in the use of government power. In short, the "rule of
law" designates the cluster of values associated with conformity to law by
government.
Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 U. VIRGINIA L. REV.
189, 212-13 (1985).
35See, e.g. Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897); CARDOZO, THE
GROWTH OF LAW (1924); K.N. LLEWELLYN, THE COMMON LAW TRADITION (1960); Allen
& Caldwell, Modern Logic and Judicial Decision Making: A Sketch of One View," 28 L. &
CONTEMP. PROBLEMS 213-24 (1963).
See also for a discussion of "the inner morality of law" in the new natural law tradition,
Fuller, Positivism and Fidelity to Law-A Reply to Professor Hart, 71 HARV. L. REV. 630
(1958).
19
V. The Rule of Law in International Affairs
Just as the rule of law is an essential component in national life, so, too, it is an
essential component in international life. As John Jay wrote in The Federalist:
It is of high importance to the peace of America, that she observe the laws of
nations
36
And as Thomas Jefferson wrote in 1790:
I think with others, that nations are to be governed with regard to their own
interests, but I am convinced that it is their interest, in the long run, to be
faithful to their engagements, even in the worst of circumstances, and honorable
and generous always. 37
One fundamental principle in international affairs is, of course, that nations should follow
the rules of treaty and customary international law binding on them. Perhaps the essential
principle of world order, however, is that nations must adhere to the United Nations Charter
obligation not to use force aggressively in international relations. In this connection the
peoples of the democracies applaud the decision by President Gorbachev to repudiate the
Brezhnev doctrine and to permit genuine self-determination in the countries of Eastern
Europe. Perhaps one area for future discussion might be an approach to "world peace
accountability" which would highlight the critical importance of strict adherence to the
Charter prohibition against aggressive use of force in international relations and seek to raise
public awareness of these issues much as the Helsinki process has raised public awareness of
human rights issues. Indeed, one of the interesting paradoxes of beginning major international
accountability with human rights accountability is that a whole network of practices and
institutions has grown up around such human rights accountability, while there is no such
network surrounding accountability for another central thrust of the United Nations Charter,
the prohibition in Article 2(4) against the threat or use of aggressive force. 38 Accountability
to this great principle, however, is, like human rights, of obvious concern to all nations as
they struggle for a world free from aggressive use of force. Indeed, in an age in which legal
scholars can debate the "death" of Article 2(4) of the Charter something badly needs to be
³⁶THE FEDERALIST No. 3, at 14 (J. Jay) (J. Cooke ed. 1961).
37 Letter to The Marquis De Lafayette, April 2, 1790," in 8 THE WRITINGS OF THOMAS
JEFFERSON 12 (Mem. Ed. 1903).
38 There is, of course, obviously a loose international network of claims and counterclaims
and some degree of international institutions devoted to such accountability but, strikingly,
nothing similar to human rights accountability as it has evolved in the Helsinki process.
20
done, if possible, to revitalize this fundamental principle. Moreover, the recent statement by
President Mikhail Gorbachev before the United Nations, in which he emphasized the
impermissibility of the use of aggressive force in international relations, thus verbally
recognizing this Charter principle as a cornerstone of world order, suggests an important
opportunity to strengthen this principle through enhanced accountability.
VI. A Robust Legal Profession
The rule of law inevitably requires a healthy and robust legal profession. This, in turn,
requires high-quality legal education in a climate of academic freedom, a vital and
independent organized bar, a tradition of understanding and protection for the lawyer's role
in representing unpopular as well as popular clients and causes, an independent and learned
judiciary, a code of professional ethics rooted in the independence and integrity of the judicial
process, and a reliable and effective system of legal reporting and public dissemination of
laws. Of necessity, the rule of law requires an adequate number of well-trained and
professional lawyers and judges to provide defense counsel in criminal proceedings, to staff
a genuinely independent judiciary, to provide advice on the law, and to carry out the myriad
of other services performed by a professional bar. Resources, status, salaries and other
incentives must be adequate to develop such a bar. A robust legal profession can also be
assisted by enhancing support for institutions devoted to the recommendation and appraisal
of individual laws and the operation of the legal system as a whole.
21
MON 10 am MRSC walp-thru
natl. Salvation foront = old regime
Limisona = Berkeley
HungrPal, RFE
elections may 20
if we lose theal elections, you R
looking @ the future pol prisoness
of Rum
before 12/22 - illegal for 3 people
to have convo
4 churches in Buchaust, 3 were padlocked
election day resumen?
#
lack of morality - told to do for 1/5 yrs.
July 1987 - TV Guide U.S. Constitution
stamed for info
4
1936 cand, prison Toyrs. - woman, running
again
31 yr-old unemployed for 12 yro.
They stote our revolution
10 Braser - coal mines, imprisoned
4 no, 1948
now VP 4115 Darty
Hist like stop in 1948
11:20
Chas Fried
495-310Q 4636
Lloyd Cutter Marchatx CWP 663-6000
1sst Sec. Dick Schifter 647-2126
David Burgess 2112 State - Hum Rghts
secret reqp - people not allowed
to all, no one knows
what they are
Hung Justice Minister = fmr Sup.
Gt Justic quit
Kalman Kulcsar (Kohl-jar)
been here several times
Anglo-Saxon law expert -
U.S. 457-1700 . of Peace - John norton moore
mle of law programs
abopnof 804/924-7441 UVA
Hung + SU locked onto anglo-Saxon +
common law system Court interpretation
not
Raman Mapolianic /Continental Wde- -
law & my for everything
1. ind judiciary (Manyland) gor appts
exec control
w/leg approval
independence
election cycle,
w/a yrs. 12nd
- put participation
dist. gote to
retain for
15 yrs.
take wdit for helping them
2. trial by jury
now- 1 judge w/2 laymen
our system w/2 Aes - "sleeping judges"
odd # jurars (5 or 7)
smaller one
3. notion of habeus corpus
Hung. has it -dug it out
from past
Magyan princes -
Hung embasay
right Dr. to complain
Istran Pataki
Dep. Chief of Mission
362-6730
David Riukin - Boyden's office
(Soviet emigre - as kid)
unit side = more justice, party not
as involved
/. Hung
3. Poland (not as far to go - Cath Church)
2. Czech
watchdog
Freedom of Rel - Sor longt.
freedom to he atherst from - atheres
prosetyly as atherat, not as
Prof, moore
State justice, USIA
US dnot
1) outside consultant, survey field
re! EE & SO
of Place
rot to
a) Me to do to enhance rol engagement
Charles Smith
Prof. A.E. Dick Howard - UVA
Gech
- (SLE talks (max Kampelman
Copenhages Round
639-7000
1) free elections
2) rule of law
- Thromburgh (70reign appro - Spring)
trip HOSU 1990 30 & Rule
- Don ayers - deptb Y Prof moore
took fed judges,
UK + France
namelua law school
intro ?
Chapee
Rep Juck Brooks
Cheney
Darman
Bob Draham
Cavazos
simpson
Jaime Escalante
may, aug. Dec
Junny stewart
Rev Robt Runcie
Pearl Bailey
Billy Gramm
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Order of Exercises
Presiding: JAMES B. HOLDERMAN
President of the University of South Carolina
MUSICAL PRELUDE
The University Concert Choir
The University Symphonic Band
PROCESSIONS
The University Mace
The University Faculties
The Platform Party
NATIONAL ANTHEM
The University Concert Choir
INVOCATION
His Eminence Archbishop Iakovos
Primate of the Greek Orthodox Church
of North and South America
MUSICAL TRIBUTE
The University Concert Choir
OPENING REMARKS
President Holderman
PRESENTATION OF CANDIDATES FOR DEGREES
Dr. Arthur K. Smith
Provost
CONFERRING OF DEGREES IN COURSE
President Holderman
"MEMORY"
In Honor of the Class of 1990
PRESENTATION OF THE PRESIDENT OF THE UNITED STATES AND MRS. BUSH
CONFERRING OF HONORARY DEGREES
President Holderman
Provost Smith
Thomas L. stepp
Secretary, Board of Trustees
HONORARY DEGREE RECIPIENTS
Michael Dammann Eisner
Chairman and Chief Executive Officer
The Walt Disney Company
Andrew Lloyd Webber
Composer
Barbara Pierce Bush
Advocate for Literacy
ADDRESS
The President of the United States
BENEDICTION
Archbishop Iakovos
ALMA MATER
Dr. Richard Conant
school of Music
RECESSIONAL
thus toteoworth
THE WHITE HOUSE
Purckney
WASHINGTON
1st Bd. of Trustees,
nom to be 1st Chair,
but lost by 4 votes
ABA-
early proponent of
state unise, hegan
Homer Mozer
efforts in 1770 -
chartered 31 yrs later, unev
298- -6020
geuded bull to
ust. uner three
state Senate
legal
661,
77
why.
institute
A
Ref
unup
what doing oil in
process ?
mmy
Pal
885-2648
Prof Hum amenicanum Schwartz
Cyech Bulg
Hung GDR 11/
828e
Some of These
may be useful
either directly
or indirectly.
any a drome just
IF you want
Steve
LAW
LAW
1079
Laugh at your friends, and if your friends are
clusion of the Roman Twelve Tables: Salus
sore,
populi suprema lex; and to know that laws, ex-
So much the better, you may laugh the more.
cept they be in order to that end, are but things
POPE, Epilogue to Satires. Dial. i, 1. 55.
captious, and oracles not well inspired.
1
FRANCIS BACON, Essays: Of Judicature.
He chastises manners with a laugh. (Castigat
10
ridendo mores.)
Law is founded not on theory but upon na-
JEAN BAPTISTE DE SANTEUL, Motto, of the
ture. (Neque opinione sed natura constitutum
Opéra-Comique, Paris.
esse jus.)
Fight Virtue's cause, stand up in Wit's defence,
CICERO, De Legibus. Bk. i, ch. 10, sec. 28.
Win us from vice and laugh us into sense.
Law is nothing but a correct principle drawn
THOMAS TICKELL, On the Prospect of Peace.
from the inspiration of the gods, commanding
St. 38.
what is honest, and forbidding the contrary.
2
Let us not be laughing-stocks to other men's
CICERO, Philippica. No. xi, sec. 12.
11
humours.
Reason is the life of the law; nay, the com-
SHAKESPEARE, The Merry Wives of Windsor
mon law itself is nothing but reason.
Act iii, SC. 1, 1. 88.
3
The law. which is perfection of reason.
There are few who would not rather be hated
SIR EDWARD COKE, Institutes. Pt. i.
than laughed at.
How long soever it hath continued, if it be
SYDNEY SMITH, Sketches of Moral Philosophy.
against reason, it is of no force in law.
Lecture 11.
SIR EDWARD COKE, Institutes. Pt. i.
4
Law governs man and reason the law.
For still the world prevail'd, and its dread
THOMAS FULLER, Gnomologia. No. 3149.
laugh,
Which scarce the firm philosopher can scorn.
Let us consider the reason of the case. For noth-
ing is law that is not reason.
THOMSON, The Seasons: Autumn, 1. 233.
Sir JOHN POWELL, Coggs us. Bernard (2 Ld.
Raym. Rep. p. 911.)
LAW
12
The law is for the protection of the weak
I-Law: Definitions
5
more than the strong.
Law is a form of order. and good law must
SIR WILLIAM ERLE, Reg. v. Woolley. (4 Cox,
necessarily mean good order.
C.C. 196)
13
ARISTOTLE, Politica. Bk. vii, ch. 4, sec. 5.
6
The law groweth of sin, and doth punish it.
There are two, and only two, foundations of
JOHN FLORIO, First Fruites. Fo. 32. (1578)
law,
equity and utility.
The law's made to take care of raskills.
EDMUND BURKE, Tracts on the Popery Laws.
GEORGE ELIOT, Mill on the Floss. Bk. iii, ch. 4.
Pt. i, ch. 3.
14
The law, in its majestic equality, forbids the
Laws, like houses, lean on one another.
rich as well as the poor to sleep under bridges.
EDMUND BURKE, Tracts on the Popery Laws.
Pt. i, ch. 3.
to beg in the streets. nd to steal bread.
7
ANATOLE FRANCE. (COURNOS, Modern Plu-
Law is whatever is boldly asserted and plaus-
tarch, p. 27.)
15
ibly maintained.
The Law is what it is-a majestic edifice.
AARON BURR. (PARTON, Life and Times of
sheltering all of us, each stone of which
Aaron Burr. Vol. i, p. 149.)
rests on another.
8
The absolute justice of the State, enlight-
JOHN GALSWORTHY, Justice. Act ii. It is the
ened by the perfect reason of the State: that
Judge speaking.
16
is law.
Law, licensed breaking of the peace.
RUFUS CHOATE, Conservative Force of the
MATTHEW GREEN, The Spleen, 1. 286.
American Bar.
9
Law, grown a forest, where perplex
The laws place the safety of all before the
The mazes, and the brambles vex.
safety of individuals. (Leges omnium salutem
MATTHEW GREEN, The Spleen, 1. 292.
17
singulorum saluti anteponunt.)
Laws spring from the instinct of self-preser-
CICERO, De Finibus. Bk. iii, ch. 19, sec. 64.
vation.
The safety of the people shall be the highest
R. G. INGERSOLL, Some Mistakes of Moses.
law. (Salus populi suprema lex esto.)
18
CICERO, De Legibus. Bk. iii, sec. 3. Derived by
The law is the last result of human wisdom
tradition from the Twelve Tables of Roman
acting upon human experience for the benefit
law.
of the public.
Judges ought above all to remember the Con-
SAMUEL JOHNSON, Miscellanies, i, 223.
Dorothy Baher 5
1080
LAW
LAW
Laws are not made for particular cases, but for
A law should be brief in order that the unlearned
men in general.
may grasp it more easily. (Legem enim brevem
SAMUEL JOHNSON. (BOSWELL, Life, 1776.)
esse oportet, quo facilius ab imperitis teneatur.)
1
POSIDONIUS. (SENECA, Epistulæ ad Lucilium
No law can possibly meet the convenience
Epis. xciv, sec. 38.)
of every one: we must be satisfied if it be
9
beneficial on the whole and to the majority.
Law, in a free country, is, or ought to be, the
LIVY, History. Bk. xxxiv, sec. 3.
determination of the majority of those who
The law is blind, and speaks in general terms;
have property in land.
She cannot pity where occasion serves.
SWIFT, Thoughts on Various Subjects.
10
THOMAS MAY, The Heir. Act iv. (1620)
Law is the crystallization of the habit and
2
The Habeas Corpus Act
the most strin-
thought of society.
gent curb that ever legislation imposed on
WOODROW WILSON, Lecture, Princeton, 1893.
tyranny.
II-Law: Apothegms
MACAULAY, History of England. Ch. 6.
11
3
The law is open.
The man who does no wrong needs no law.
New Testament: Acts, xix, 38.
('O unõèv àðikw» oúõevos SEiTaL vóuov.)
12
MENANDER, Fragments. No. 845.
The devil hath eleven points of the law
All laws are useless, for good men do not need
against you. that is. possession.
them and bad men are made no better by them.
THOMAS ADAMS, Works, p. 97. (1630)
DEMONAX. (PLUTARCH, Apothegms.)
Possession is nine points of the law.
When men are pure, laws are useless; when men
THOMAS FULLER, Holy War. Bk. v, ch. 29.
are corrupt, laws are broken.
Both these proverbs were in frequent use.
BENJAMIN DISRAELI, Contarini Fleming.
Possession is eleven points of the law and there
Just laws are no restraint upon the freedom of
are but twelve.
the good, for the good man desires nothing which
JOHN RAY, English Proverbs.
a just law will interfere with.
That possession was the strongest tenure of the
J. A. FROUDE, Short Studies on Great Subjects:
law.
Reciprocal Duties of State and Subject.
PILPAY, Fables: The Cat and the Two Birds.
It is only rogues who feel the restraint of law.
Eight points of the law: 1. A good cause; 2.
J. G. HOLLAND, Gold-Foil: Perject Liberty.
A good purse; 3. An honest and skilful attorney;
4. Good evidence; 5. Able counsel; 6. An up-
The good needs fear no law,
right judge; 7. An intelligent jury; 8. Good
It is his safety and the bad man's awe.
luck.
MASSINGER, The Old Law. Act v, SC. 1.
Attributed to GEORGE AUGUSTUS SELWYN,
4
Virtue alone is not sufficient for the exercise
when a candidate for Chamberlain of the
City of London, C. 1750.
of government; laws alone carry themselves
13
into practice.
Law Is a Bottomless Pit.
MENCIUS, Works. Bk. iv, pt. i, ch. 1, sec. 3.
JOHN ARBUTHNOT, Title of Pamphlet, 1712.
5
He that goes to law (as the proverb is) holds a
Law can discover sin, but not remove,
wolf by the ears.
Save by those shadowy expiations weak.
ROBERT BURTON, Anatomy of Melancholy:
MILTON, Paradise Lost. Bk. xii, 1. 290.
Democritus to the Reader.
So many laws argue so many sins.
The worst of law is that one suit breeds twenty.
MILTON, Paradise Lost. Bk. xii, 1. 283.
GEORGE HERBERT, Jacula Prudentum.
6
Lawsuits consume time, and money, and rest
Laws were made that the stronger might not
and friends.
in all things have his way. (Inde datæ leges,
GEORGE HERBERT, Jacula Prudentum.
ne firmior omnia posset.)
Whoso loves law dies either mad or poor.
OVID, Fasti. Bk. iii, 1. 279.
THOMAS MIDDLETON, The Phoenix.
7
14
The laws obey custom. (Leges mori serviunt.)
There is no magic in parchment or in wax.
PLAUTUS, Trinummus. Act iv, SC. 3, 1. 36.
WILLIAM HENRY ASHURST, Master v. Miller,
With customs we live well, but laws undo us.
1763. (4 T. R. 320.)
GEORGE HERBERT, Jacula Prudentum.
The mysterious virtue of wax and parchment.
8
EDMUND BURKE, Speech on Conciliation with
A law should be a voice, as it were, sent down
America.
from heaven; it should command, not dis-
Is not this a lamentable thing, that of the skin
cuss. (Velut emissa divinitus vox sit; jubeat,
of an innocent lamb should be made parchment;
non disputet.)
that parchment, being scribbled o'er, should
POSIDONIUS. (SENECA, Epistulæ ad Lucilium.
undo a man?
Epis. xciv, sec. 38.)
SHAKESPEARE, 11 Henry VI. Act iv, SC. 2, 1. 86.
LAW
LAW
1081
1
Forsyth (Life), "have perhaps been oftener
Nowadays the law is ended as a man is
misapplied than any in the Latin language.
friended.
They are constantly translated or used in
HENRY BRINKELOW, Complaint of Roderick
the sense of, 'What good is it?' 'To what
Mors. Ch. 11. (c. 1542)
end does it serve?' Their real meaning is,
Matters be ended as they be friended.
'Who gains by it?' "To whom is it an ad-
THOMAS STARKEY, England in the Reign of
vantage?' Forsyth goes on to explain that
Henry VIII. Bk. i, ch. 3.
in a trial for murder Lucius Cassius in-
A friend in court is worth a penny in a man's
structed the jury to inquire who had a
motive for the crime, who would gain by the
purse.
JOHN RAY, English Proverbs.
death, in other words, "cui bono fuerit?"
Bon fait avoir ami en cour,
There was an ancient Roman lawyer. of great
Car le procès en est plus court.
fame in the history of Roman jurisprudence,
A French variant of the proverb.
whom they called Cui Bono, from his having first
See also under COURT.
introduced into judicial proceedings the argu-
2
ment, "What end or object could the party have
Law and arbitrary power are in eternal en-
had in the act with which he is accused."
mity.
EDMUND BURKE, Impeachment of Warren
EDMUND BURKE, Impeachment of Warren
Hastings.
7
Hastings, 16 Feb., 1788.
3
Laws go as kings like. (Allá van leyes do
That which is a law to-day is none to-morrow.
quieren Reyes.)
ROBERT BURTON, Anatomy of Melancholy:
CERVANTES, Don Quixote. Pt. i, ch. 45.
Democritus to the Reader.
She made what pleased her lawful. (Che libito fe'
The law is not the same at morning and at
licito in sua legge.)
night.
DANTE, Inferno. Canto v, 1. 56. From the Latin,
GEORGE HERBERT, Jacula Prudentum.
"Si libet, licet."
8
New lords, new laws.
JOHN RAY, English Proverbs.
Who to himself is law, no law doth need,
Offends no law, and is a king indeed.
And he that gives us in these days
GEORGE CHAPMAN, Bussy d'Ambois. Act ii, SC. 1.
New Lords may give us new laws.
9
GEORGE WITHER, Contented Man's Morrice.
After an existence of nearly twenty years
4
of almost innocuous desuetude these laws are
Arms and laws do not flourish together. (Tov
aúròv бтл ши Kai vóuwv kalpov eival.)
brought forth.
JULIUS C.ÆSAR. (PLUTARCH, Lives: Julius
GROVER CLEVELAND, Message, 1 March, 1886.
Casar. Ch. 35, sec. 3.)
I used those words and thought they would
The law speaks too softly to be heard amid the
please the Western taxpayers, who are fond of
din of arms. (Toû біа TOV TWV бтлач фофог
such things.
où
GROVER CLEVELAND, referring to "innocuous
GAIUS MARIUS. (PLUTARCH, Lives: Gaius
desuetude." (Interview, New York Herald,
Marius. Ch. 28, sec. 2.)
9 June, 1886.)
Laws are dumb in the midst of arms. (Silent
The law hath not been dead, though it hath
enim leges inter arma.)
slept.
CICERO, Pro Milone. Ch. 4, sec. 11.
SHAKESPEARE, Measure for Measure. Act ii,
The clatter of arms drowns the voice of the
SC. 2, 1. 90.
law.
10
MONTAIGNE, Essays. Bk. iii, ch. 1.
The gladsome light of jurisprudence.
5
SIR EDWARD COKE, Institutes. Pt. i.
Agree. for the law is costly.
11
WILLIAM CAMDEN, Remains, p. 316. (1605)
Law is the safest helmet. (Lex est tutissima
cassis.)
Agree, agree. says the old saw, the law is costly.
SIR EDWARD COKE, Inscription, on rings which
ROGER L'ESTRANGE, Fables of AESOP. (1692)
he gave to friends.
Come, agree, the law's costly.
12
SWIFT, Polite Conversation. Dial. i. (1738)
All things by Law. (Пávтa vomori.)
6
DEMOCRITUS. (MARCUS AURELIUS, Medita-
Who stood to gain? (Cui bono fuerit?)
tions. Bk. vii, sec. 31.)
LUCIUS CASSIUS LONGINUS, the judge, who
13
used it as a maxim in instructing a jury to
A delusion, a mockery, and a snare.
seek for the motive of a crime. (CICERO,
SIR THOMAS DENMAN, an English judge, in his
Pro Milone. Ch. xii, sec. 32.)
judgment in O'Connell vs. the Queen (11
Clarke and Finnelly, 351): "If it is possible
For whose good? (Cui bono?)
that such a practice as that which has taken
CICERO, quoting from Lucius Cassius in the
place in the present instance should be al-
Second Philippic. "These two words," says
lowed to pass without a remedy, trial by
1082
LAW
LAW
jury itself, instead of being a security to
Ill manners produce good laws.
persons who are accused. will be a delusion,
CHARLES CAHIER, Six Mille Proverbes, p. 195.
1
a mockery, and a snare." (4 Sept., 1894)
As manners make laws, manners likewise re-
That
1
peal them.
"If the law supposes that," said Mr. Bumble,
SAMUEL JOHNSON. (BOSWELL, Life, ii, 419.)
SH
"the law is a ass."
12
2
DICKENS, Oliver Twist. Ch. 51.
As the case stands.
The
2
Any laws but those we make for ourselves are
MIDDLETON AND MASSINGER, The Old Law. Act
ii, SC. 1. (1626); MATTHEW HENRY, Com.
Hav
laughable.
mentaries: Psalm cxix.
Si
EMERSON, Essays, Second Series: Politics.
Every case stands upon its own bottom.
3
3
Law makes long spokes of the short stakes
SIR FRANCIS PEMBERTON, Judgment, Fitz-
Stil
S
of men.
harris case. (8 How. St. Tr., 280)
13
Jus
EMPSON, Legal Fiction.
4
No customer brings so much grist to the mill
Laws too gentle are seldom obeyed; too se-
As the wealthy old woman who makes her
4
vere. seldom executed.
own Will.
Sa
BENJAMIN FRANKLIN, Poor Richard, 1756.
CHARLES NEAVES, The Jolly Testator.
5
14
A penny-weight of love is worth a pound of
A famous case. (Cause célèbre.)
law.
FRANÇOIS DE PETEVAL. Title of a work in 20
THOMAS FULLER, Gnomologia. No. 343.
vols., Paris, 1734. The full title is Causes
4
Célèbres et Intéressantes.
In a thousand pounds of law there is not an
I
15
ounce of love.
Where law ends, there tyranny begins.
JOHN RAY, English Proverbs.
6
WILLIAM PITT, Case of Wilkes: Speech, 9 Jan,
Much law but little justice.
1770.
16
THOMAS FULLER, Gnomologia.
You little know how hazardous it is to go to
Law cannot persuade where it cannot punish.
law. (Nescis quam meticulosa res sit ire ad
THOMAS FULLER, Gnomologia.
judicem.)
The more laws the more offenders.
PLAUTUS, Mostellaria, 1. 1101.
THOMAS FULLER, Gnomologia.
17
7
I will drive a coach and six through the Act
Thou knowest a barley straw
of Settlement.
Will make a parish parson go to law.
STEPHEN RICE, Chief Baron of the Irish Ex-
WILLIAM GODDARD, Nest of Wasps. No. 16.
chequer, 1686. (MACAULAY, History of Eng-
(1615)
land. Ch. 12; BURNET, History of My Own
8
Times.)
Do law away, what is a king?
Where is the right of any thing?
I can drive a coach-and-six through any act of
JOHN GOWER, Confessio Amantis. Bk. vii.
Parliament.
9
DANIEL O'CONNELL, Speech.
Taken in flagrant violation of the law. (In
18
flagranti crimine comprehensi.)
The law often allows what honor forbids.
JUSTINIAN, Corpus Juris Civilis Romani.
(La loi permet souvent ce que défend l'hon-
Codex ix, tit. 13, sec. 1. Usually quoted,
neur.)
"In flagrante delicto." Its English equiva-
SAURIN, Spartacus. Act iii, SC. 3.
lent, "Caught red-handed," referred orig-
19
inally only to murderers.
Ignorance of the law excuses no man: not
10
that all men know the law, but because 'tis
The law is a sort of hocus-pocus science, that
an excuse every man will plead, and no man
smiles in yer face while it picks yer pocket;
can tell how to confute him.
and the glorious uncertainty of it is of mair
JOHN SELDEN. Table-Talk: Law.
use to the professors than the justice of it.
Ignorance of the law excuses no one. (Ignorantia
CHARLES MACKLIN, Love à la Mode. Act ii,
legis excusat neminem.)
SC. 1. (1759) This is probably the origin
UNKNOWN. A legal maxim.
of the phrase, "The glorious uncertainty of
the law," though there is a legend that it
"Tis a sluggard's part not to know what he may
was used as a toast by a lawyer named
lawfully do. (Inertis est nescire quid liceat
Wilbraham at a dinner given to Lord
sibi.)
Mansfield in London, in 1756. (See Gentle-
SENECA, Octavia, 1. 453.
man's Magazine, August, 1830.)
20
11
The rusty curb of old father antic, the law.
Good laws are produced by bad manners.
SHAKESPEARE, I Henry IV. Act i, SC. 2, 1. 69.
(Bonae leges ex malis moribus procreantur.)
A rotten case abides no handling.
MACROBIUS, Saturnalia. Bk. iii, 1. 17.
SHAKESPEARE, II Henry IV. Act iv, SC. 1, 1. 161.
LAW
LAW
1083
1
Has he affections in him.
Divine Law
That thus can make him bite the law by the
11
nose?
There is but one law for all, namely, that
SHAKESPEARE, Measure for Measure, iii, 1, 108.
law which governs all law, the law of our
2
Creator, the law of humanity, justice, equity
The laws, your curb and whip, in their rough
-the law of nature and of nations.
power
EDMUND BURKE, Impeachment of Warren
Have uncheck'd theft.
Hastings, 28 May, 1794.
SHAKESPEARE, Timon of Athens, iv, 3, 446.
12
The ultimate, angels' law,
3
Indulging every instinct of the soul
Still you keep o' the windy side of the law.
There where law, life, joy, impulse are one
SHAKESPEARE, Twelfth Night, iii, 4, 1S1.
thing!
Just to the windward of the law.
ROBERT BROWNING, A Death in the Desert.
CHARLES CHURCHILL, The Ghost. Bk. iii, 1. 56.
13
4
Our human laws are but the copies, more or
Abraham: Do you bite your thumb at us, sir?
less imperfect, of the eternal laws, so far as
Sampson: Is the law of our side. if I say ay?
we can read them.
SHAKESPEARE, Romeo and Juliet, i, 1, 54.
J. A. FROUDE, Short Studies: Calvinism.
The laws are with us, and God on our side.
The law of heaven and earth is life for life.
ROBERT SOUTHEY, Essays: On the Rise and
BYRON, The Curse of Minerva. St. 15.
Progress of Popular Disaffection.
4a
EYE FOR EYE, see under RETRIBUTION.
I will not say with Lord Hale, that "The law
14
will admit of no rival,"
but I will say
Of Law there can be no less acknowledged,
that it is a jealous mistress. and requires a long
than that her seat is the bosom of God, her
and constant courtship. It is not to be won by
voice the harmony of the world.
trifling favors, but by lavish homage.
RICHARD HOOKER, Ecclesiastical Polity. Bk. i.
15
JOSEPH STORY, The Value and Importance of
All things obey fixed laws. (Legibus omnia
Legal Studies. (Miscellaneous Writings, p.
parent.)
523.) This was Justice Story's address at his
MANILIUS, Astronomica, i, 479.
inauguration, 15 Aug., 1829. as Dane Profes-
sor of Law at Harvard University. See Dicta,
In all things there is a kind of law of cycles.
Nov., 1945. Often attributed to Blackstone.
(Rebus cunctis inest quidam velut orbis.)
See Illinois Law Review, xxvii, 329.
TACITUS, Annals. Bk. iii, sec. 55.
5
Things have their laws as well as men, and
A man must not go to law because the musi-
things refuse to be trifled with.
cian keeps false time with his foot.
EMERSON, Essays, Second Series: Politics.
16
JEREMY TAYLOR, Worthy Communicant. Ch.
The first Almighty Cause
iv, sec. 4. Quoted from Schott, Adagia.
6
Acts not by partial but by gen'ral laws.
No man e'er felt the halter draw,
POPE, Essay on Man. Epis. i, 1. 145.
With good opinion of the law.
Mark what unvaried laws preserve each state,
JOHN TRUMBULL, MacFingal. Canto iii, 1. 489.
Laws wise as Nature, and as fix'd as Fate.
7
POPE, Essay on Man. Epis. iii, 1. 189.
The Law: It has honored us. may we honor it.
17
DANIEL WEBSTER, Toast, at the Charleston Bar
That very law which moulds a tear
dinner, 10 May, 1847.
And bids it trickle from its source,-
8
That law preserves the earth a sphere,
What we seek is the reign of law, based upon
And guides the planets in their course.
the consent of the governed and sustained
SAMUEL ROGERS, On a Tear. Rogers is referring
by the organized opinion of mankind.
to the law of gravitation.
WOODROW WILSON, Speech, Mount Vernon, 4
18
July, 1918, referring to League of Nations.
On a divine law divination rests.
The Reign of Law.
SCHILLER, Wallenstein. Act i, SC. 9.
JAMES LANE ALLEN. Title of novel.
19
9
In the corrupted currents of this world
When the law shows her teeth. but dares not
Offence's gilded hand may shove by justice,
bite.
And oft 'tis seen the wicked prize itself
YOUNG, Love of Fame. Sat. i, 1. 17.
Buys out the law: but 'tis not so above;
III-Law: Varieties
There is no shuffling. there the action lies
10
In his true nature; and we ourselves compell'd,
For thus men say each country has its laws.
Even to the teeth and forehead of our taults,
CHAUCER, Troilus and Criseyde. Bk. ii, st. 6.
To give in evidence.
(c. 1374)
SHAKESPEARE, Hamlet. Act iii, SC. 3, 1. 57.
So many countries, so many laws.
20
UNKNOWN, Politeuphuia, 224. (1669) See also
God is law, say the wise; 0 Soul, and let
under OPINION.
us rejoice,
1084
LAW
LAW
For if He thunder by law the thunder is yet
6
His voice.
0 king, establish the decree, and sign the
TENNYSON, The Higher Pantheism. St. 7.
writing, that it be not changed. according to
1
the law of the Medes and Persians, which
Foul shame and scorn be on ye all
altereth not.
Who turn the good to evil,
Old Testament: Daniel, vi, 8.
And steal the Bible from the Lord,
The thing is true, according to the law of Medes
To give it to the Devil!
and Persians, which altereth not.
Than garbled text or parchment law
Old Testament: Daniel, vi, 12.
I own a statute higher;
Let it be written among the laws of the Persians
And God is true. though every book
and the Medes, that it be not altered.
And every man's a liar!
Old Testament: Esther, i. 19.
WHITTIER, A Sabbath Scene. St. 18.
7
Draco made his laws not with ink, but with
The Law of Nations
blood.
2
The law of human society. (Jus humanæ
DEMADES. Draco had made the least theft
societatis.)
punishable with death. (PLUTARCH, Lives:
CICERO, De Officiis. Bk. i, ch. 7, sec. 21.
Solon.) Hence "Draconian," in the sense of
3
severe.
8
Natural law; the law of mankind. (Jus
hominum.)
Connecticut in her blue-laws. laying it down
CICERO, Tusculanarum Disputationum. Bk. i,
as a principle, that the laws of God should
ch. 26, sec. 64.
be the law of the land.
4
THOMAS JEFFERSON, Letter to John Adams,
The bond of union is closer between those
24 Jan., 1814.
who belong to the same nation. and closer
9
still between those who are citizens of the
There is a written and an unwritten law.
same state. It is for this reason that our
Written law is that under which we live in
forefathers chose to understand one thing
different cities, but that which has arisen
by the law of nations (jus gentium), and an-
from custom is called unwritten law. (Nóµov
other by the civil or common law (jus civile).
ôvo, à µèv yap айтой respannévos, o 0€
CICERO, De Officis. Bk. iii, ch. 17, sec. 69.
aypados.)
In every matter the consensus of opinion among
PLATO. (DIOGENES LAERTIUS, Plato. Sec. 86.)
all nations is to be regarded as the law of nature.
Dementia Americana; the unwritten law.
(Omni autem in re consensio omnium gentium
DELPHIN MICHAEL DELMAS. At the trial of
lex naturae putanda est.)
Harry Thaw for the murder of Stanford
CICERO, Tusculanarum Disputationum. Bk. i,
White, in 1907.
ch. 13, sec. 30.
Brain-storm, the paranoia of the millionaire.
That which natural reason has established
WILLIAM TRAVERS JEROME. The district at-
amongst all men is called the law of nations.
torney who prosecuted Thaw.
(Quod naturalis ratio inter omnes homines con-
The silver-tongued spell-binder of the Pacific
stituit
vocatur jus gentium.)
Coast.
GAIUS, Institutione Juris Civilis. Bk. i, sec. 1.
Sobriquet of Delphin Michael Delmas.
10
Against the law of nature, law of nations.
First Clown: Argal, he that is not guilty of
MILTON, Samson Agonistes, 1. 889.
his own death shortens not his own life.
Miscellaneous Laws
Second Clown: But is this law?
5
I oft have heard of Lydford Law,
First Clown: Ay, marry is't; crowner's quest
law.
How in the morn they hang and draw,
And sit in judgement after.
SHAKESPEARE, Hamlet. Act v, SC. 1, 1. 21.
11
SIR THOMAS BROWNE, Lydford Journey. St. 1.
A sumptuary law. (Lex sumptuaria.)
(1644)
TACITUS, Annals. Bk. iii, sec. 52.
First hang and draw,
12
Then hear the cause by Lidford law.
For this is the law of the feudal days,
THOMAS FULLER, Worthies of England, i. 399.
The law for one and all.
(1662)
That whoso lives on the baron's land,
I have had Halifax law-to be condemned first
May feed as he will at the baron's hand,
and inquired upon afterwards.
But whoso feeds at the baron's hand,
LEICESTER. (MOTLEY, United Netherlands. Vol.
Must answer the baron's call.
i, p. 444.)
THOMAS F. WOODLOCK, The Law.
Are you going to hang him anyhow-and try him
IV-Law: The Net of Law
afterwards?
13
MARK TWAIN, Innocents at Home. Ch. 5.
Laws are like spiders' webs; they hold the
LAW
LAW
1085
weak and délicate who are caught in their
While the great break out again.
meshes, but are torn in pieces by the rich
RICHARD BRATHWAITE, Care's Cure.
and powerful.
Laws like to cobwebs, catch small flies,
ANACHARSIS, to Solon, when the latter was
Great ones break them before your eyes.
compiling his laws. (PLUTARCH, Lives:
BENJAMIN FRANKLIN, Poor Richard, 1734.
Solon. Ch. 5, sec. 2.)
For the most part, laws are but like spiders'
Men keep their engagements when it is to the
webs, taking the small gnats. or perhaps some-
advantage of both parties not to break them.
times the fat flesh flies, but hornets that have
SOLON, Answering Anacharsis. (PLUTARCH,
sharp stings and greater strength, break through
Lives: Solon.) See also No. 7, below.
them.
1
Laws grind the poor, and rich men rule the
SIR JOHN HARINGTON, Orlando Furioso. Bk. 32.
law.
Laws are like cobwebs, which may catch small
GOLDSMITH, The Traveller, 1. 386.
flies, but let wasps and hornets break through.
2
SWIFT, Essay on the Faculties of the Mind.
The verdict acquits the raven, but condemns
8
the dove. (Dat veniam corvis, vexat censura
The net's not spread to catch the hawk or kite
columbas.)
Who do us wrong, but for the innocent birds
JUVENAL, Satires. Sat. ii, 1. 63.
Who do us none at all.
3
(Quia non rete accipitri tennitur neque milvo,
In vain thy reason finer webs will draw,
Qui male faciunt nobis: illis qui nihil faciunt
Entangle justice in her net of law,
tennitur.)
And right, too rigid, harden into wrong,
TERENCE, Phormio, 1. 330. (Act iii, SC. 1.)
Still for the strong too weak, the weak too
9
strong.
The law doth punish man or woman
POPE, Essay on Man. Epis. iii, 1. 191.
That steals the goose from off the common,
4
But lets the greater felon loose,
The net of law is spread so wide,
That steals the common from the goose.
No sinner from its sweep may hide.
UNKNOWN. An 18th century epigram. (See
Its meshes are so fine and strong,
Notes and Queries. Ser. vii, 6, 469; 7, 98.
They take in every child of wrong.
Ser. viii, 10, 273.) There are various versions,
0 wondrous web of mystery!
all prompted by the Enclosure Acts. The
Big fish alone escape from thee!
version given above was written when Sir
JAMES JEFFREY ROCHE, The Net of Law.
Charles Pratt, First Earl of Camden,
5
enclosed a common strip of land in front of
Petty sacrilege is punished, but sacrilege on
Camden House, 7 Oct., 1764.
a grand scale is honored by a triumphal pro-
10
cession. (Nam sacrilegia minuta puniuntur,
There is no law without a loophole for him
magna in triumphis feruntur.)
who can find it. (Es giebt kein Gesetz was
SENECA, Epistulæ ad Lucilium. Epis. lxxxvii,
hat nicht ein Loch. wer's finden kann.)
sec. 24.
UNKNOWN. A German proverb.
All, look up with reverential awe,
At crimes that 'scape, or triumph o'er the law.
V-Law: Its Tyranny
POPE, Epilogue to Satires. Dial. i, 1. 167.
11
6
Law is king of all.
Laws are generally found to be nets of such
HENRY ALFORD, School of the Heart. Lesson 6.
a texture, as the little creep through, the
great break through, and the middle-sized
Law is King. (Lex Rex.)
SAMUEL RUTHERFORD. Title of book published
are alone entangled in.
1644.
WILLIAM SHENSTONE. On Politics.
12
7
There is no worse torture than the torture
Laws are spiders' webs, which stand firm
of laws.
when any light and yielding object falls upon
FRANCIS BACON, Essays: Oj Judicature.
them, while a larger thing breaks through
them and escapes.
It is a hard thing to torture the laws so that
SOLON. (DIOGENES LAERTIUS, Solon. Sec. 14.)
they torture men.
FRANCIS BACON, De Augmentis Scientiarum.
One of the Seven [Wise Men of Greece] was
Pt. i, bk. viii, aph. 13.
wont to say: "That laws were like cobwebs;
13
where the small flies were caught, and the great
We, like the eagles, were born to be free. Yet
brake through."
we are obliged, in order to live at all, to
FRANCIS BACON, Apothegms. No. 181.
make a cage of laws for ourselves and to
Should I sigh, because I see
stand on the perch.
Laws like spider-webs to be?
WILLIAM BOLITHO, Twelve Against the Gods:
Lesser flies are quickly ta'en
Introduction.
1086
LAW
LAW
As soon as laws are necessary for men, men are
For law's sake only, to be held in bonds?
no longer fit for freedom.
SWINBURNE, Mary Stuart. Act i, SC. 1.
PYTHAGORAS.
1
VI-Law: Letter and Spirit
People crushed by law have no hopes but
18
from power. If laws are their enemies, they
No man has ever yet been hanged for break-
will be enemies to laws; and those who have
mg the spirit of a law.
much to hope and nothing to lose will al-
GROVER CLEVELAND. (RHODES, History of the
ways be dangerous.
United States, viii, 403; HIBBEN, Peerless
EDMUND BURKE, Letter, to the Hon. C. J.
Leader, p. 155.)
Fox, 8 Oct., 1777.
14
The letter killeth. but the spirit giveth life.
Bad laws are the worst sort of tyranny.
New Testament: II Corinthians, iii, 6. (Litera
EDMUND BURKE, Speech, Bristol.
enim occidit, Spiritus autem vivificat.
2
Extreme law. extreme injustice. (Summum
-Vulgate.)
jus. summa injuria.)
Legality kills us. (La légalité nous tue.)
CICERO, De Officiis. Bk. i, sec. 10. See under
VIENNET, Épitres.
15
JUSTICE AND INJUSTICE.
3
We are lost by what is lawful. (Perimus lici-
Our sense of private dignity can survive the
tis.)
most oppressive man-despot, but the despot-
SIR MATTHEW HALE, quoted from St. Gregory,
ism of law corrodes it.
Morals. Bk. V, homily 35, meaning, "We
NORMAN DOUGLAS, Good-bye to Western
are demoralised by indulgence in things
Culture.
which are not contrary to law."
16
4
Shall free-born men, in humble awe,
To the law and to the testimony.
Submit to servile shame;
Old Testament: Isaiah, viii, 20.
17
Who from consent and custom draw
Exact laws, like all the other ultimates and ab-
The same right to be ruled by law,
solutes, are as fabulous as the crock of gold
Which kings pretend to reign?
at the rainbow's end.
DRYDEN, On the Young Statesman.
G. N. LEWIS, The Anatomy of Science, p. 154.
5
18
All rights and laws are still transmitted,
But now we are delivered from the law, that
Like an eternal sickness to the race.
being dead wherein we were held; that we
(Es erben sich Gesetz und Rechte
should serve in newness of spirit, and not
Wie eine ew'ge Krankheit fort.)
in the oldness of the letter.
GOETHE, Faust. Pt. i, SC. 4, 1. 449.
6
New Testament: Romans, vii, 6.
19
0 wearisome condition of humanity!
Let him have all the rigour of the law.
Born under one law. to another bound.
SHAKESPEARE, II Henry VI. Act i, SC. 3, 1. 199.
FULKE GREVILLE, Mustapha. Act v, SC. 4.
7
He
follows close the rigour of the statute,
Law is the tyrant of mankind, and often
To make him an example.
compels us to do many things which are
SHAKESPEARE, Measure for Measure. Act i,
against nature.
SC. 4, 1. 66.
HIPPIAS. (PLATO, Protagoras. Sec. 337.)
Is it so nominated in the bond?
8
SHAKESPEARE, The Merchant of Venice. Act iv,
The law is laid down to you. (Dicta tibi est
SC. 1, 1. 259.
lex.)
20
HORACE, Epistles. Bk. ii, epis. 2, 1. 18.
The bloody book of law
9
You shall yourself read in the bitter letter.
Then too [in law] there are a thousand
SHAKESPEARE, Othello. Act i, SC. 3, 1. 67.
causes of disgust, a thousand delays to be
21
endured. (Tunc quoque mille ferenda Tædia,
In bondage to the letter still,
mille moræ.)
We give it power to cramp and kill,-
To tax God's fulness with a scheme
JUVENAL, Satires. Sat. xvi, 1. 43.
10
Narrower than Peter's house-top dream,
The law is so lordly and loth to maken end.
His wisdom and his love with plans
LANGLAND, Piers Plowman. Passus iv, 1. 199.
Poor and inadequate as man's.
11
WHITTIER, Miriam, 1. 97.
We have strict statutes and most biting laws.
SHAKESPEARE, Measure for Measure. Act i,
VII-Law: Precedent
SC. 3, 1. 19.
12
See also Precedent
God's blood! is law for man's sake made, or
22
man
An argument derived from authority is of
LAW
LAW
1087
the greatest force in law. (Argumentum ab
10
Laws are not masters but servants. and he
auctoritate fortissimum est in lege.)
rules them who obeys them.
SIR EDWARD COKE, On Littleton, 144.
HENRY WARD BEECHER, Proverbs from Plym-
1
The mere repetition of the Cantilena of the
outh Pulpit: Political.
11
lawyers cannot make it law.
Law will never be strong or respected unless
SIR THOMAS DENMAN, O'Connell v. The
it has the sentiment of the people behind it.
Queen.
2
If the people of a State make bad laws, they
The acts of today may become the prece-
will suffer for it. They will be the first to
dents of tomorrow.
suffer. Let them suffer. Suffering, and noth-
FARRER HERSCHELL, Lord Chancellor, Speech,
ing else, will implant that sentiment of re-
23 May, 1878.
sponsibility which is the first step to re-
3
form.
All the sentences of precedent judges that
JAMES BRYCE, American Commonwealth. Vol.
have ever been cannot altogether make a law
i, p. 352.
contrary to natural equity.
I know no method to secure the repeal of bad
THOMAS HOBBES, Leviathan. Pt. ii, ch. 26.
or obnoxious laws so effective as their stringent
4
execution.
One precedent creates another. They soon
U. S. GRANT, Inaugural Address, 4 March,
accumulate and become law.
1869.
JUNIUS, Letters: Dedication.
12
5
He who holds no laws in awe,
A precedent embalms a principle.
He must perish by the law.
WILLIAM SCOTT, BARON STOWELL, Opinion,
BYRON, A Very Mournful Ballad on the Siege
while Advocate-General, 1788. (WILLIAM
and Conquest of Alhama. St. 12.
SCOTT, Lord Stowell.) BENJAMIN DISRAELI,
13
Speech, House of Commons, 22 Feb., 1848;
Let a man keep the law,-any law,-and
Endymion. Ch. 9.
his way will be strewn with satisfactions.
6
EMERSON, Essays, First Series: Prudence.
It must not be; there is no power in Venice
14
Can alter a decree established:
Good men must not obey the laws too well.
"Twill be recorded for a precedent,
EMERSON, Essays, Second Series: Politics.
And many an error by the same example
No law can be sacred to me but that of my
Will rush into the state.
nature. Good and bad are but names very
SHAKESPEARE, The Merchant of Venice. Act iv,
readily transferable to that or this; the only
SC. 1, 1. 218.
right is what is after my own constitution; the
7
Every law which originated in ignorance and
only wrong what is against it.
EMERSON, Essays, First Series: Self-Reliance.
malice, and gratifies the passions from which
15
it sprang, we call the wisdom of our ances-
For the bond of all men's states is this,
tors.
When they with honor hold by law.
SYDNEY SMITH, Peter Plymley Letters. No. 5.
(Tò yap TOL ouvéxov πó́eis
8
TOÛT' Eoo, örav TIS TOÙS vóuovs owsn kalws.)
Mastering the lawless science of our law,
EURIPIDES, Suppliants, 1. 313.
That codeless myriad of precedent,
16
That wilderness of single instances,
The laws of God, the laws of man,
Through which a few, by wit or fortune led,
He may keep that will and can;
May beat a pathway out to wealth and fame.
Not I: let God and man decree
TENNYSON, Aylmer's Field, 1. 436.
Laws for themselves and not for me.
A. E. HOUSMAN, Laws.
17
VIII-Law: Obedience to Law
A strict observance of the written laws is
9
Where there are laws. he who has not broken
doubtless one of the high virtues of a good
them need not tremble. (Ove son leggi, Tre-
citizen. but it is not the highest. The laws
mar non dee chi leggi non infranse.)
of necessity, of self-preservation, of saving
ALFIERI, Virginia. Sc. 2.
our country when in danger, are of higher ob-
ligation.
Who breaks no law is subject to no king.
THOMAS JEFFERSON, Writings. Vol. xii, p. 418.
CHAPMAN, Bussy d'Ambois. Act iv, SC. 1.
18
Fear God, and offend not the Prince nor his
Without a notion of a law-maker, it is im-
laws,
possible to have a notion of a law, and an
And keep thyself out of the magistrate's claws.
obligation to observe it.
THOMAS TUSSER, Five Hundred Points of
JOHN LOCKE, An Essay Concerning Human
Good Husbandry.
Understanding. Bk. i, ch. iv, sec. 8.
PN6081
M4
WHRC
New
DICTIONARY OF
QUOTATIONS
ON HISTORICAL PRINCIPLES
FROM
ANCIENT AND MODERN SOURCES
Selected and Edited by
H. L. MENCKEN
NEW YORK : ALFRED A. KNOPF : 1976
Laughter
654
Law
Law
655
Law
Laughing has always been considered by the-
One who is always laughing is a fool; and one
Laws, like cobwebs, entangle the weak, but
ologians as a crime.
who never laughs a knave.
are broken by the strong.
The laws put the safety of all above the safety
of one.
R. G. INGERSOLL: Speech in Chicago,
SPANISH PROVERB
Ascribed to SOLON, c. 575 B.C.
CICERO: De finibus, II, c. 50 B.C.
Nov. 26, 1882
The laughter of a fool is like that of a horse.
The foundation of law is not opinion but na-
The more mandates and laws are enacted, the
ture.
The mere possibility of employing laughter as
WELSH PROVERB
more there will be thieves and robbers.
CICERO: De legibus, c. 50 B.C.
a weapon shows that it involves the idea of
[See also Anarchy, Anger, Comedy, Drinking,
LAO-TSZE: The Tao Teh King, c. 500 B.C.
Time law. is the best interpreter of every doubtful
power.
Fool, Jest, Man, Medicine, Merry, Mirth,
HARALD HÖFFDING: Psykologiske Under-
Sorrow.
The safety of the people is the highest law.
DIONYSIUS OF HALICARNASSUS: Antiquities
sögelser, 1889
The Twelve Tables, XII, 450 B.C.
of Rome, II, c. 20 B.C.
Laughter and Tears
He who laughs best today will also laugh last.
Laws can never be enforced unless fear sup-
The purpose of law is to prevent the strong al-
F. W. NIETZSCHE: The Twilight of the
Even in laughter the heart is sorrowful; and
ports them. SOPHOCLES: Ajax, c. 450 B.C.
ways having their way.
Idols, 1889
the end of that mirth is heaviness.
The commands of the law are conventional and
OVID: Fasti, III, c. 5
PROVERBS XIV, 13, c. 350 B.C.
have no root in nature.
Law is deaf, inexorable, calculated rather for
Laughter is not a bad beginning for a friend-
Woe unto you that laugh now! for ye shall
ANTIPHON: Orations, c. 435 B.C.
the safety and advantage of the poor than of
ship, and it is the best ending for one.
mourn and weep.
LUKE VI, 25, c. 75
the rich, and admits of no relaxation or in-
OSCAR WILDE: The Picture of Dorian Gray,
The makers of laws are the majority who are
dulgence if its bounds are transgressed.
1891
Learn weeping, and thou shalt gain laughing.
weak; they make laws and distribute praises
GEORGE HERBERT: Outlandish Proverbs,
LIVY: History of Rome, II, c. 10
and censures with a view to themselves and
Man alone suffers so excruciatingly in the world
1640
to their own interests; and they terrify the
No law perfectly suits the convenience of every
that he was compelled to invent laughter.
He who laughs on Friday will weep on Sunday.
stronger sort of men, and those who are able
member of the community; the only consid-
F. W. NIETZSCHE: The Will to Power, I,
1896
JEAN RACINE: Les plaideurs, I, 1668
to get the better of them, in order that they
eration is, whether upon the whole it be
may not get the better of them.
profitable to the greater part.
The attitudes, gestures and movements of a
He can laugh and cry, and both in a wind.
PLATO: Gorgias, c. 360 B.C.
LIVY: History of Rome, XXXIV
JOHN RAY: English Proverbs, 1670
human body are laughable in exact propor-
The law is light.
What a slight foundation for virtue it is to be
tion as they make it remind us of a machine.
I am forced to try to make myself laugh that I
good only from fear of the law!
PROVERBS VI, 23, c. 350 B.C.
HENRI BERGSON: Le rire, 1900
may not cry: for one or other I must do; and
SENECA: De Ira, II, c. 43
is it not philosophy carried to the highest
It makes no difference whether a good man has
Laughter is the bark of delight of a gregarious
pitch for a man to conquer such tumults of
defrauded a bad man or a bad man de-
The law is good, if a man use it lawfully.
animal at the proximity of his kind.
soul as I am sometimes agitated by, and in
frauded a good man, or whether a good or
I TIMOTHY I, 8, c. 60
Laughter is the female of tragedy.
the very height of the storm to quaver out
a bad man has committed adultery: the law
The law is not made for a righteous man, but
Laughter is the mind sneezing.
a horselaugh?
can look only to the amount of damage done.
for the lawless and disobedient, for the un-
WYNDHAM LEWIS: Inferior Religions, 1920
SAMUEL RICHARDSON: Clarissa, LXXXIV,
ARISTOTLE: The Nicomachean Ethics, v,
godly and for sinners, for unholy and pro-
1748
c. 340 B.C.
fane, for murderers of fathers and murderers
He was born with the gift of laughter and a
of mothers, for manslayers.
sense that the world was mad.
I laugh at everything, for fear of being obliged
The actions ordained by law are just actions
RAFAEL SABATINI: Scaramouche, I, 1921
only accidentally.
I TIMOTHY I, 9
to weep.
IBID.
(This sentence is inscribed over the en-
CARON DE BEAUMARCHAIS: Le barbier de
Laws do not persuade because they threaten.
trance to the Sterling Hall of Graduate
Séville, I, 1775
The law is reason free from passion.
SENECA: Epistulæ morales ad Lucilium,
Studies at Yale University, though with-
ARISTOTLE: Politics, III, c. 322 B.C.
Laughter and tears are meant to turn the wheels
c. 63
out credit to Sabatini)
of the same sensibility; one is a wind-power
Ancient laws remain in force long after the peo-
The law is open.
ACTS XIX, 38, c. 75
Progress is nothing but the victory of laughter
and the other water-power, that is all.
ple have the power to change them.
over dogma.
O. W. HOLMES: The Autocrat of the Break-
ARISTOTLE: Politics, IV
The more corrupt the state, the more numerous
the laws.
BENJAMIN DECASSERES: Fantasia Im-
fast-Table, IV, 1858
TACITUS: History, ш, c. 100
Good law means good order.
promptu, 1933
Laugh, and the world laughs with you;
ARISTOTLE: Politics, VII
As physicians are the preservers of the sick, so
are the laws of the injured.
Weep, and you weep alone.
He who laughs, lasts.
For the sad old earth must borrow its mirth,
It is best that laws should be so constructed as
EPICTETUS: Encheiridion, c. 110
MARY PETTIBONE POOLE: A Glass Eye at
But has troubles enough of its own.
to leave as little as possible to the decision
of those who judge.
Good men need no laws, and bad men are not
the Keyhole, 1938
ELLA WHEELER WILCOX: Solitude, 1883
made better by them.
ARISTOTLE: Rhetoric, I, c. 322 B.C.
Ef yo' take a cat to chu'ch, de folks gwine to
An onion can make people cry, but there is yet
Ascribed to DEMONAX OF CYPRUS, c. 150
laugh.
AMERICAN NEGRO SAYING
to be invented a vegetable that can make
Law is a pledge that the citizens of a state will
The precepts of the law are these: to live hon-
them laugh.
Author unidentified
do justice to one another.
orably, to injure no other man, to render to
We must laugh before we are happy, lest we
Ascribed to LYCOPHRON by ARISTOTLE:
every man his due.
should die without having laughed.
[See also Widow, Woman.
Politics, III, c. 322 B.C.
THE INSTITUTES OF JUSTINIAN, 533
FRENCH PROVERB
Lavender
The law follows custom.
No freeman shall be taken, or imprisoned, or
Too much laughter deadens the mind.
PLAUTUS: Trinummus, IV, c. 190 B.C.
HEBREW PROVERB
Let's go to that house, for the linen looks white,
disseized, or outlawed, or exiled, or in any
and smells of lavender, and I long to lie in
According to the law of the Medes and Persians,
way harmed, nor will we go upon or send
A man with a loud laugh makes truth itself
a pair of sheets that smell so.
which altereth not.
upon him, save by the lawful judgment of
seem folly.
IRISH PROVERB
IZAAK WALTON: The Compleat Angler, IV,
DANIEL VI, 8, c. 165 B.C. (Also in verse 12)
his peers or by the law of the land.
1653
MAGNA CARTA, XXXIX, 1215
Laughter makes good blood.
Law
Law is nothing else but right reason, calling us
ITALIAN PROVERB
imperiously to our duty, and prohibiting
Law is a regulation in accord with reason, is-
Ye shall have one manner of law, as well for
sued by a lawful superior for the common
every violation of it.
good.
He that laughs alane will mak sport in com-
the stranger, as for one of your own country.
CICERO: Orationes Philippicae, XI,
pany.
SCOTTISH PROVERB
LEVITICUS XXIV, 22, c. 700 B.C.
THOMAS AQUINAS: Summa theologicæ, I,
c. 60 B.C.
Law
Law
Law
656
657
Law
For the most part laws are but like spiders'
That which is a law today is none tomorrow.
Too many matters have been regulated by laws,
The law is lordly.
WILLIAM LANGLAND: Piers Plowman, 1377
webs, taking the small gnats, or perhaps
IBID.
which nature, long custom and general con-
sometimes the fat flesh flies, but hornets that
sent ought only to have governed.
have sharp stings and greater strength break
Law is a pickpurse.
WILLIAM PETTY: Political Arithmetic,
Lawmakers ought not to be law-breakers.
JAMES HOWELL: Familiar Letters, I, 1645
through.
pref., c. 1677
ENGLISH PROVERB, traced by Apperson to
JOHN HARINGTON: Tr. of LUDOVICO ARI-
(March 20, 1621)
CHAUCER: The Canterbury Pilgrims (The
OSTO: Orlando Furioso, XXXII (1532),
Let not the law of thy country be the non-ultra
Man of Law's Tale), c. 1386
1591
That law may be set down as good which is
of thy honesty; nor think that always good
certain in meaning, just in precept, conven-
enough which the law will make good.
There is nothing more difficult to undertake,
I have perhaps some shallow spirit of judg-
ient in execution, agreeable to the form of
THOMAS BROWNE: Christian Morals, I,
more uncertain to succeed, and more danger-
government, and productive of virtue in
c. 1680
ous to manage, than to prescribe new laws.
Because he who innovates in that manner has
But ment, in these nice sharp quillets of the law,
those that live under it.
FRANCIS BACON: De augmentis scien-
Law is nothing else but the will of him that
for his enemies all those who made any ad-
Good faith, I am no wiser than a daw.
SHAKESPEARE: I Henry VI, II, c. 1591
tiarum, VIII, 1623
hath the power of the supreme father.
vantage by the old laws; and those who ex-
ROBERT FILMER: Patriarcha, 1680
pect to benefit by the new will be but cool
Law, logic and Switzers may be hired to fight
The law obliges us to do what is proper, not
and lukewarm in his defence.
simply what is just.
No written laws can be so plain, so pure,
NICCOLÒ MACHIAVELLI: The Prince, VI,
for anybody.
ENGLISH PROVERB, traced by Apperson to
HUGO GROTIUS: De jure belli ac pacis, I,
But wit may gloss and malice may obscure.
1513
1593
1625
JOHN DRYDEN: The Hind and the Panther,
II, 1687
All laws are promulgated for this end: that
Of law there can be no less acknowledged
No freeman whatsoever ought to be imprisoned
every man may know his duty; and there-
than that her seat is the bosom of God, her
but according to the law of the land.
The pretended power of suspending of laws
fore the plainest and most obvious sense of
or the execution of laws by regal authority
voice the harmony of the world.
JOHN SELDEN: Argument in Darnel's Case,
the words is that which must be put on them.
without consent of Parliament is illegal.
RICHARD HOOKER: Of the Laws of Eccle-
1627
THOMAS MORE: Utopia, 1516
THE ENGLISH BILL OF RIGHTS, I, Dec., 1689
siastical Polity, I, 1594
Extremity of law is extremity of wrong.
The law of God, we call the moral law,
What are twenty acts of Parliament amongst
Laws they are not which public approbation
JOHN CLARKE: Paræmiologia Anglo-
friends?
must alone be the scope, and rule, and end,
JOHN SELDEN: Table-Talk, 1689
hath not made so.
IBID.
Latina, 1639
of all laws.
If anything be imprinted on the mind of all
JOHN CALVIN: Institutes of the Christian
In law, what plea so tainted and corrupt
Here the great art lies, to discern in which the
men as a law, all men must have a certain
Religion, IV, 1536
But being season'd with a gracious voice
law is to bid restraint and punishment, and
and unavoidable knowledge that certain and
Obscures the show of evil?
in what things persuasion only is to work.
unavoidable punishment will attend a breach
Little money, little law.
SHAKESPEARE: The Merchant of Venice,
JOHN MILTON: Areopagitica, 1644
of it.
Anon.: The Parliament of Byrdes, c. 1550
III, c. 1597
JOHN LOCKE: Essay Concerning Human
The law is not the same at morning and at
The law groweth of sin, and doth punish it.
Old father antic, the law.
Understanding, I, 1690
night.
JOHN FLORIO: First Frutes, 1578
SHAKESPEARE: I Henry IV, I, c. 1598
GEORGE HERBERT: Jacula Prudentum, 1651
Law is but a heathen word for power.
It is the rule of rules and the general law of
In the corrupted currents of this world,
DANIEL DEFOE: The History of the Kentish
With customs we live well, but laws undo us.
Offence's gilded hand may shove by justice;
Petition, 1701
laws that every man shall obey that of the
IBID.
place where he is.
And oft 'tis seen the wicked prize itself
The voice of nations and the course of things
MICHEL DE MONTAIGNE: Essays, I, 1580
Buys out the law.
Where there is no common power there is no
Allow that laws superior are to kings.
SHAKESPEARE: Hamlet, III, c. 1601
law. THOMAS HOBBES: Leviathan, I, 1651
DANIEL DEFOE: The True-Born English-
For law, king, people. (Pro lege, rege, grege.)
Who to himself is law, no law doth need,
man, II, 1701
MoTTo OF WILLIAM OF ORANGE (1533-
Offends no law, and is a king indeed.
A good law is that which is needful for the
1584)
GEORGE CHAPMAN: Bussy D'Ambois, II,
good of the people, and withal perspicuous.
Law, in a free country, is, or ought to be, the
1604
THOMAS HOBBES: Leviathan, II
determination of the majority of those who
It would be better to have no laws at all than
have property in land.
it is to have so many as we have.*
We must not make a scarecrow of the law,
All the sentences of precedent judges that have
JONATHAN SWIFT: Thoughts on Various
MICHEL DE MONTAIGNE: Essays, III, 1588
Setting it up to fear the birds of prey,
ever been cannot altogether make a law
Subjects, 1706
Laws are now maintained in credit, not because
And let it keep one shape, till custom make it
contrary to natural equity.
IBID.
Law is a bottomless pit.
they are essentially just, but because they
Their perch and not their terror.
Unnecessary laws are not good laws, but traps
JOHN ARBUTHNOT: Title of a pamphlet,
are laws. It is the mystical foundation of their
SHAKESPEARE: Measure for Measure, II,
for money.
1712
1604
IBID.
authority; they have none other. They are
often made by fools; more often by men who
The law, being made, is but words and paper
A penny-weight of love is worth a pound of
in hatred of equality have want of equity;
Some say men on the back of law
May ride and rule it like a patient ass,
without the hands and swords of men.
law.
but ever by men who are vain and irresolute.
JAMES HARRINGTON: The Commonwealth
JAMES KELLY: Complete Collection of
There is nothing so grossly and largely of-
And with a golden bridle in the mouth
Direct it into anything they please.
of Oceana, 1656
Scottish Proverbs, 1721 (Cf. RAY,
fending, nor SO ordinarily wrongful, as the
ante, 1670)
NATHANIEL FIELD: A Woman Is a
laws.
IBID.
Weathercock, п, 1609
Law can discover sin, but not remove.
New laws are too apt to be voluminous, and so
JOHN MILTON: Paradise Lost, XII, 1667
No man is so exquisitely honest or upright but
perplexed and mutable, from whence pro-
he brings his actions and thoughts within
New lords, new laws.
ceeds neglect, contempt and ignorance.
JOHN HARINGTON: Nugæ Antiquæ, c. 1610
In a thousand pounds of law there's not an
WILLIAM WARBURTON (BISHOP OF
compass and danger of the laws, and that
ounce of love.
ten times in his life might not lawfully be
The law is blind, and speaks in general terms.
GLOUCESTER): The Causes of
JOHN RAY: English Proverbs, 1670
hanged.
IBID.
THOMAS MAY: The Heir, c. 1620
Prodigies and Miracles, I,
1727
There is one law governing all things.
He that goes to law holds a wolf by the ear.
The common good of all is the supreme law.
ROBERT BURTON: The Anatomy of Melan-
RICHARD CUMBERLAND: De legibus
Be you never so high, the law is above you.
GIORDANO BRUNO: De monade numero et
naturæ, I, 1672
THOMAS FULLER: Gnomologia, 1732
fgura, II, 1591
choly, 1621 (Quoted as a proverb)
658
Law
Law
Law
659
Law
Ill kings make many good laws.
IBID.
Laws should be made by legislators, not by
People, crushed by law, have no hopes but
what the law is today can guess what it will
judges.
C. B. BECCARIA: Trattato dei delitti e delle
from power. If laws are their enemies, they
be tomorrow.
Law cannot persuade where it cannot punish.
will be enemies to laws; and those who have
IBID.
pene, 1764
ALEXANDER HAMILTON: The Federalist,
much to hope and nothing to lose, will al-
1788
IBID.
The law doth punish man or woman
ways be dangerous, more or less.
Much law, but little justice.
That steals the goose from off the common,
EDMUND BURKE: Letter to Charles James
The general object which all laws have, or
The more laws, the more offenders.
IBID.
But lets the greater felon loose
Fox, Oct. 8, 1777
ought to have, in common, is to augment the
That steals the common from the goose.
total happiness of the community; and there-
Force first made conquest, and that conquest
Author unidentified, c. 1764
The law is to us precisely what I am in my barn-
fore, in the first place, to exclude, so far as
yard, a bridle and check to prevent the strong
may be, everything that tends to subtract
law.
ALEXANDER POPE: An Essay on Man, III,
Laws grind the poor, and rich men rule the law.
and greedy from oppressing the timid and
from that happiness: in other words, to ex-
1733
OLIVER GOLDSMITH: The Traveler, 1764
weak.
clude mischief.
ST. JOHN DE CRÈVECOEUR: Letters from an
JEREMY BENTHAM: The Principles of
By length of time and continuance laws are so
How small, of all that human hearts endure,
American Farmer, п, 1782
Morals and Legislation, XIII, 1789
multiplied and grown to that excessive vari-
That part which kings or laws can cause or
ety that there is a necessity of a reduction of
cure!
No man e'er felt the halter draw
The law ought to prohibit only actions hurtful
SAMUEL JOHNSON: Inserted in OLIVER
With good opinion of the law.
to society. What is not prohibited by the law
them, or otherwise it is not manageable.
MATTHEW HALE: History of the Pleas of
GOLDSMITH: The Traveler, 1764
JOHN TRUMBULL: Fingal, III, 1782
should not be hindered, nor should any one
the Crown, 1736
be compelled to that which the law does not
Laws are generally nets of such a texture as the
The law does not consist in particular instances,
require.
little creep through, the great break through,
though it is explained by particular instances
Law [is] licensed breaking of the peace.
Declaration of the Rights of Man by the
MATTHEW GREEN: The Spleen, 1737
and the middle-sized alone are entangled in.
and rules, but the law consists of principles
French National Assembly, V, 1789
WILLIAM SHENSTONE: Of Men and
which govern specific and individual cases
Laws can have no further effect than to re-
Manners, 1764
as they happen to arise.
The law is an expression of the will of the com-
strain men from an open violation of right,
LORD MANSFIELD: Judgment in Rex vs.
munity. All citizens have a right to concur,
Let all the laws be clear, uniform and precise:
while what is done amiss in private, though
Bembridge, 1783
either personally or by their representatives,
to interpret laws is almost always to corrupt
in its formation. It should be the same to all,
equally tending to the public prejudice, es-
them.
Miserable is the condition of individuals, dan-
whether it protects or punishes.
capes their animadversion.
VOLTAIRE: Philosophical Dictionary, 1764
gerous is the condition of the state, if there is
WILLIAM WARBURTON (BISHOP OF
Declaration of the Rights of Man by the
GLOUCESTER): The Divine Lega-
no certain law, or, which is the same thing,
French National Assembly, VI
Let the law never be contradictory to custom:
tion of Moses, I, 1737
no certain administration of law, to protect
for if the custom be good, the law is worth-
individuals or to guard the state.
No man should be accused, arrested, or held in
less.
IBID.
LORD MANSFIELD: Judgment in Rex vs.
confinement except in cases determined by
The laws of a country ought to bear reference
Shipley, 1784
the law, and according to the forms which it
to its physical character, to the climate,
A rule of civil conduct, prescribed by the su-
has prescribed. All who promote, solicit, exe-
whether warm, cold, or temperate; to the
preme power in a state, commanding what is
The first maxim of a free state is that the laws
cute, or cause to be executed, arbitrary or-
quality of the soil, to its situation, to its size,
right and prohibiting what is wrong.
be made by one set of men, and adminis-
ders, ought to be punished; and every citi-
to the kind of life led by the people, whether
WILLIAM BLACKSTONE: Commentaries on
the Laws of England, I, 1765
tered by another; in other words, that the
zen called upon or apprehended by virtue of
farmers, hunters, or laborers.
C. L. DE MONTEQUIEU: The Spirit of the
legislative and judicial characters be kept
the law ought immediately to obey, and not
Laws, I, 1748
Where law ends, tyranny begins.
separate.
render himself culpable by resistance.
WILLIAM PITT (EARL OF CHATHAM):
WILLIAM PALEY: The Principles of Moral
Declaration of the Rights of Man by the
Laws undertake to punish only overt acts.
Speech in the House of Lords, in de-
and Political Philosophy, VI, 1785
French National Assembly, VII
C. L. DE MONTESQUIEU: The Spirit of the
fense of John Wilkes, Jan. 9, 1770
The law is the last result of human wisdom act-
The execution of the laws is more important
Laws, XII
When any people are ruled by laws in framing
ing upon human experience for the benefit
than the making them.
Right is the rule of law, and law is declaratory
which they have no part, that are to bind
of the public.
THOMAS JEFFERSON: Letter to the Abbé
them to all intents and purposes, without, in
SAMUEL JOHNSON: Mrs. Piozzi's Anecdotes,
Arnond, 1789
of right.
BENJAMIN WHICHCOTE: Moral and Reli-
the same manner, binding the legislators
1786
gious Aphorisms, 1753
themselves, they are, in the strictest sense,
One law for the lion and ox is oppression.
slaves; and the government, with respect to
Ignorance of the law is no excuse in any coun-
WILLIAM BLAKE: The Marriage of Heaven
Laws too gentle are seldom obeyed; too severe,
try. If it were, the laws would lose their ef-
and Hell, 1790
them, is despotic.
seldom executed.
ALEXANDER HAMILTON: The Farmer
fect, because it can be always pretended.
A law not repealed continues in force, not be-
BENJAMIN FRANKLIN: Poor Richard's
Refuted, 1775
THOMAS JEFFERSON: Letter to M. Limozin,
cause it cannot be repealed, but because it
Almanac, 1756
1787
Laws are formed by the manner and exigencies
is not repealed, and the non-repealing passes
The law is a sort of hocus-pocus science, that
of particular times, and it is but accidental
for consent.
The sober second thought of the people shall
smiles in yer face while it picks yer pocket.
that they last longer than their causes.
be law.
THOMAS PAINE: The Rights of Man, I, 1791
CHARLES MACKLIN: Love à la Mode, II,
SAMUEL JOHNSON: Letter to James Boswell,
FISHER AMES: Speech in Congress, 1788
Laws, not blood!
1759 (Cf. HOWELL, ante, 1621)
Feb. 3, 1775
Law and arbitrary power are in eternal enmity.
M. J. DE CHÉNIER: Caius Gracchus, 1792
Laws are always useful to persons of property,
Whenever the offence inspires less horror than
EDMUND BURKE: Speech on the impeach-
As new cases occur the law is perpetually
and hurtful to those who have none.
the punishment, the rigor of penal law is
ment of Warren Hastings, Feb. 15, 1788
found deficient. It is therefore perpetually
J.-J. ROUSSEAU: Du contrat social, I, 1761
obliged to give way to the common feelings
necessary to make new laws.
of mankind.
It will be of little avail to the people that the
WILLIAM GODWIN: An Enquiry Concerning
Good laws lead to the making of better ones;
EDWARD GIBBON: The Decline and Fall of
laws are made by men of their own choice if
Political Justice, 1793
bad ones bring in worse.
the Roman Empire, I, 1776
the laws be so voluminous that they cannot
J.-J. ROUSSEAU: Du contrat social, III
Laws are not made for particular cases, but for
be read, or so incoherent that they cannot be
Laws always lose in energy what the govern-
understood; if they be repealed or revised be-
ment gains in extent.
Just to the windward of the law.
men in general.
fore they are promulgated, or undergo such
IMMANUEL KANT: Perpetual Peace,
CHARLES CHURCHILL: The Ghost, III, 1763
SAMUEL JOHNSON: Boswell's Life, 1776
incessant changes that no man, who knows
Supplement I, 1795
Law
Law
660
Law
661
Law
Law is whatever is boldly asserted and plau-
The lawless science of our law,
In a criminal proceeding the question is not
It is always justifiable, in examining the prin-
That codeless myriad of precedent,
alone whether substantial justice has been
ciple of a law, to inquire what other laws
sibly maintained.
That wilderness of single instances.
done, but whether justice has been done ac-
can be passed with equal reason, and to im-
Ascribed to AARON BURR in JAMES PARTON:
Life and Times of Aaron Burr, 1858
ALFRED TENNYSON: Aylmer's Field, 1864
cording to law.
pute to it all the mischiefs for which it may
be used as a precedent.
(c. 1835)
MR. JUSTICE COCKBURN: Judgment in Mar-
No state shall make or enforce any law which
tin vs. Mackonochie, 1878
JOHN NICHOLAS: Speech in the House of
The law is a ass, a idiot.
shall abridge the privileges or immunities of
Representatives, Feb. 25, 1799
CHARLES DICKENS: Oliver Twist, LI, 1838
citizens of the United States; nor shall any
It is far more important the law should be ad-
state deprive any person of life, liberty or
ministered with absolute integrity than that
The glorious uncertainty of the law.
Good men must not obey the laws too well.
property without due process of law, nor
in this case or in that the law should be a
ENGLISH PHRASE, not recorded before the
R. W. EMERSON: Politics, 1841
deny to any person within its jurisdiction
good law or a bad one.
XIX century
the equal protection of the laws.
LORD COLERIDGE: Judgment in Regina vs.
The law is only a memorandum.
IBID.
CONSTITUTION OF THE UNITED STATES,
Ramsey, 1883
When I hear any man talk of an unalterable
Amendment XIV, July 28, 1868
The law is an adroit mixture of customs that are
law, the only effect it produces upon me is to
I am beginning to think with Horsley - that
convince me that he is an unalterable fool.
" the people have nothing to do with the laws
The beginning of civilization is marked by an
beneficial to society, and would be followed
SYDNEY SMITH: Peter Plymley's Letters, I,
but to obey them."
intense legality; that legality is the very con-
even if no law existed, and others that are of
1807
E. A. POE: Fifty Suggestions, 1845 (Gra-
dition of its existence, the bond which ties it
advantage to a ruling minority but harmful
ham's Magazine, May-June)
together; but that legality - that tendency to
to the masses of men, and can be enforced on
impose a settled customary yoke upon all
them only by terror.
Every law which originated in ignorance and
malice, and gratifies the passions from which
It is not desirable to cultivate a respect for the
men and all actions, if it goes on, kills the
P. A. KROPOTKIN: Paroles d'un révolté,
it sprang, we call the wisdom of our an-
law so much as for the right.
variability implanted by nature, and makes
1884
cestors.
H. D. THOREAU: An Essay on Civil
different men and different ages facsimiles
SYDNEY SMITH: Peter Plymley's Letters, V
of other men and other ages.
The law has no claim to human respect. It has
Disobedience, 1849
WALTER BAGEHOT: Physics and Politics,
no more civilizing mission; its only purpose is
1869
to protect exploitation.
IBID.
Laws are inherited like diseases.
The law is for the protection of the weak more
J. W. GOETHE: I Faust, I, 1808
than the strong.
Laws and institutions require to be adapted,
The law condemns and punishes only actions
MR. JUSTICE ERLE: Judgment in Regina vs.
that fall within certain definite and narrow
Woolley, 1850
not to good men, but to bad.
No man has a natural right to commit aggres-
J. S. MILL: The Subjection of Women, II,
limits; it thereby justifies, in a way, all simi-
sion on the equal rights of another, and this
lar actions that lie outside those limits.
1869
is all from which the laws ought to restrain
I will have no laws. I will acknowledge none.
LYOF N. TOLSTOY: What I Believe, 1884
him; every man is under the natural duty of
I protest against every law which an author-
Laws never would be improved if there were
ity calling itself necessary imposes upon my
Laws come before men live together in society,
contributing to the necessities of society, and
not numerous persons whose moral senti-
free will.
and have their origin in the natural and con-
this is all the laws should enforce on him;
ments are better than the existing laws.
and no man having a natural right to be the
P. J. PROUDHON: Idée générale de la
sequently in the eternal law.
IBID.
judge between himself and another, it is his
révolution, 1851
POPE LEO XIII: Libertas praestantissimum,
I know no method to secure the repeal of bad
June 20, 1888
natural duty to submit to the umpirage of
an impartial third.
The clash between what the law forbids and
or obnoxious laws so effective as their strin-
what society not only tolerates but seeks
The authority of the law is grounded on the
THOMAS JEFFERSON: Letter to F. W.
gent execution.
thesis: God gave it, and the fathers lived it.
Gilmor, 1816
after, is one of the essential features of a
U. S. GRANT: Inaugural address, March 4,
F. W. NIETZSCHE: The Antichrist, LVII,
state of society which is on the verge of ruin.
1869
1888
Laws were made to be broken.
LOUIS DE LOMÉNIE: Beaumarchais and His
JOHN WILSON: Noctes Ambrosianæ, XXIV,
Times, 1855
Numbers make the laws, but the good has noth-
Laws only bind when they are in accordance
1822
ing to do with figures.
with right reason, and hence with the eter-
We bury men when they are dead, but we try
H. F. AMIEL: Journal, June 12, 1871
nal law of God.
Laws are made for men of ordinary under-
to embalm the dead body of laws, keeping
POPE LEO XIII: Rerum novarum, May 15,
the corpse in sight long after the vitality has
All law has for its object to confirm and exalt
standing, and should therefore be construed
1891
by the ordinary rules of common sense. Their
gone. It usually takes a hundred years to
into a system the exploitation of the workers
meaning is not to be sought for in meta-
make a law; and then, after it has done its
by a ruling class.
We know how laws are made - we who have
physical subtleties, which may make any-
work, it usually takes a hundred years to get
M. A. BAKUNIN: Dieu et l'état, 1871
been behind the scenes. They are the prod-
rid of it.
ucts of selfishness, deception and party prej-
thing mean everything or nothing, at pleas-
H. W. BEECHER: Life Thoughts, 1858
Laws are like medicines: they usually cure the
udice. True justice is not in them, and can-
ure.
disease only by setting up another that is
not be in them.
THOMAS JEFFERSON: Letter to William
The law does not generate justice. The law is
lesser or more transient.
LYOF N. TOLSTOY: The Kingdom of God Is
Johnson, 1823
nothing but a declaration and application of
OTTO VON BISMARCK: Speech in the Prus-
Within You, 1893
what is already just.
sian Upper House, March 6, 1872
What are laws but expressions of the opinion
P. J. PROUDHON: De la justice dans la
The attempt to guard adult man by law is a
of some class which has power over the rest
révolution, I, 1858
The law is the true embodiment
bad education for the battle of life.
of the community? By what was the world
Of everything that's excellent.
W. E. H. LECKY: Democracy and Liberty,
ever governed but by the opinion of some
The laws and just restraints are to a noble na-
W. S. GILBERT: Trial By Jury, 1875
1896
person or persons? By what else can it ever
tion, not chains, but chain mail - strength
be governed?
and defence, though something also of an
Men would be great criminals did they need as
The reign of law.
T. B. MACAULAY: Southey's Colloquies,
encumbrance.
many laws as they make.
JAMES LANE ALLEN: Title of a novel, 1900
1830
JOHN RUSKIN: The Two Paths, v, 1859
C. J. DARLING: Scintillæ Juris, 1877
It is difficult to make our material condition
Law is an alliance of those who have farsight
better by the best laws, but it is easy enough
Laws exist in vain for those who have not the
No laws, however stringent, can make the idle
courage and the means to defend them.
and insight against the shortsighted.
to ruin it by bad laws.
industrious, the thriftless provident, or the
RUDOLF VON JHERING: Der Zweck im
THEODORE ROOSEVELT: Speech in Provi-
T. B. MACAULAY: Burleigh and His Times,
drunken sober.
1
Recht, VIII, 1877
dence, R. I., Aug. 23, 1902
1832 (Edinburgh Review, April)
SAMUEL SMILES: Self-Help, I, 1859
Law
662
Law
Law-abiding
663
Law, English
While there still is doubt, while opposite con-
The more by law, the less by right.
DANISH PROVERB
Jury, King, Law (Natural), Lawyer, Liberty,
victions still keep a battlefront against each
The Common Law is not a brooding omnipres-
Litigation, Magistrate, Man and Woman,
ence in the sky but the articulate voice of
other, the time for law has not come.
O. W. HOLMES II: Speech in New York,
The law has a wax nose.
FRENCH PROVERB
Manners, Maxim, Monk, Moving-picture,
some sovereign or quasi-sovereign that can
Nicety, Opinion, Possession, Precedent,
be identified.
Feb. 15, 1913
New laws are followed by new tricks.
Prince, Property, Punishment, Sin, Song,
MR. JUSTICE O. W. HOLMES: Dissenting
GERMAN PROVERB
State, Supreme Court, Trifle, Tyranny, Vigi-
Law is the expression and the perfection of
opinion in Southern Pacific Company
lance, War.
vs. Jensen, 1916
common sense.
The more laws the less justice.
IBID.
Ascribed to JOSEPH H. CHOATE (1832-
Thus is the law written. (Ita lex scripta est.)
Law-abiding
A fortuitous concourse of atoms.
1917) in G. J. CLARK: Great Sayings by
Author unidentified
Great Lawyers, 1922
LATIN PHRASE
He that keepeth the law, happy is he.
PROVERBS XXIX, 18, c. 350 B.C.
Laws are made by the conqueror, and accepted
At Common Law you are done for at once; in
The passing of an unjust law is the suicide of
by the conquered.
LATIN PROVERB
authority.
Render therefore unto Cæsar the things which
equity you are not so easily disposed of.
The former is a bullet which is instantane-
Pastoral Letter of the American Roman
are Cæsar's.
MATTHEW XXII, 21, c. 75
Law is king. (Lex rex.)
IBID.
ously and charmingly effective; the latter, the
Catholic Hierarchy, Feb., 1920
Let the people obey the magistrates, and the
Fear God, and offend not the prince nor his
angler's hook, which plays with the victim
A year ago, if I had $100 in gold in my pocket,
laws,
before it kills him. Common Law is prussic
magistrates the laws.
IBID.
And keep thyself out of the magistrate's claws.
acid; equity is laudanum.
IBID.
I was a law-abiding citizen; if I perchance
had a pint of whiskey I was a criminal. To-
The more law, the less justice. (Summum jus,
THOMAS TUSSER: Five Hundred Points of
[See also Christianity, Law.
day, if I have the whiskey, I am a law-
summa injuria.)
IBID.
Good Husbandry, 1580
abiding citizen; but if I have the gold I am
No punishment without law. (Nulla poena sine
Follow law, and forms of law, as far as con-
Law, Divine
a criminal violating the law.
lege.)
LEGAL MAXIM
venient.
[See Law (Natural).
L. J. DICKINSON: Speech at Cleveland, O.,
ABRAHAM LINCOLN: Instructions to U.S.
Jan. 5, 1934
The later decisions are the stronger in law.
Grant, Oct. 21, 1862
Law Enforcement
(Judicia posteriora sunt in lege fortiora.)
Legal concepts are supernatural entities which
IBID.
The observance of the law is the greatest sol-
No man is above the law and no man is below
do not have a verifiable existence except to
vent of public ills.
it, nor do we ask any man's permission when
the eyes of faith.
The law forces no one to do vain or useless
CALVIN COOLIDGE: Speech of acceptance,
we require him to obey it.
FELIX S. COHEN: Transcendental Nonsense
things. (Lex neminem cogit ad vana seu
July 27, 1920
THEODORE ROOSEVELT: Message to Con-
and the Functional Approach, 1935
inutilia peragenda.)
IBID.
gress, Jan., 1904
The law of blood (jus sanguinis); canon law
The law looks forward, not backward. (Lex
It is the duty of a citizen not only to observe
the law but to let it be known that he is op-
Violations of law weaken and threaten govern-
(jus canonicum); the civil law (jus civile,
prospicit non respicit.)
IBID.
posed to its violation.
ment itself. No honest government can con-
or lex civile); the law for the government
The law regards the course of nature. (Lex
CALVIN COOLIDGE: Message to Congress,
done such actions on the part of its citi-
of the church (jus ecclesiasticum the law
spectat naturae ordinem.)
Dec. 6, 1923
zens. The Republican party pledges the full
IBID.
of commerce (jus commercii); the common
Lawbreaker
strength of the government for the main-
law (jus commune or lex communis); the
The laws are adapted to those cases which most
tenance of these principles by the enforce-
law of contract (lex contractus); the divine
frequently arise. (Ad ea quae frequentius
[See Criminal.
ment of the Constitution and of all laws.
law (jus divinum); the law divine and
accidunt jura adaptantur.)
IBID.
Republican National Platform, 1924
human (lex divina ac humana) the gen-
Law, Canon
eral law (lex generalis); the law of the
The laws grow by litigation. (Litigando jura
The canon law is a body of Roman ecclesiasti-
If the law is upheld only by government offi-
Germans (lex Germanica); the law of God
crescunt.)
IBID.
cal law relative to such matters as that church
cials, then all law is at an end.
(lex Domini); the law of human society
(jus humanae societatis); international law
The laws keep the vigilant, not those who sleep.
either has, or pretends to have, the proper
HERBERT HOOVER: Message to Congress,
1929
(Vigilantibus, non dormientibus, subveniunt
jurisdiction.
(jus inter gentes); the law of the land (lex
[See also Law.
terrae); the law of the majority. (lex ma-
jura.)
IBID.
WILLIAM BLACKSTONE: Commentaries on
the Laws of England, I, 1765
joris partis); the law of mankind (jus ho-
The law will always furnish a remedy. (Lex
Law, English
minum the law merchant (lex mercatoria);
semper dubit remedium.)
IBID.
Law, Common
There is no pretense to say or insinuate to the
the law of Moses (lex Moysi); municipal
law (jus privatum); the law nations (jus
Reason is the life of the law; nay, the Common
contrary but that the laws and customs of
The niceties of the law are not the law. (Apices
Law itself is nothing but reason.
England are not only good but the very best.
gentium); natural law (jus naturæ); the
juris non sunt jura.)
IBID.
law of Parliament (lex parliamenti); the
EDWARD COKE: Institutes, I, 1628
JOHN FORTESCUE: De laudibus legum
Wherever there is society there is law. (Ubi
Angliae, c. 1462
law of the place where a man has his domi-
cile (lex domicilii); the law of the place
societas ibi lex.)
IBID.
The Common Law is the custom of the king-
dom, and we are bound to know it, and
The law of England is the greatest grievance of
where an action is brought (lex actus, lex
fori, lex ordinandi, lex reisitae, or lex situs);
Wretched is the slavery where the law is
must be all governed by it.
the nation, very expensive and dilatory.
private law (lex privata) public law (jus
changeable or uncertain. (Misera est servitus
MR. CHIEF JUSTICE NORTH: Judgment in
GILBERT BURNET (BISHOP OF SALISBURY):
ubi jus est vagum aut incertum.)
IBID.
Whitebread's Case, 1679
The History of My Own Times, 1724
publicum, or lex publica); the law of reli-
gion (jus ponticium); the law of retaliation
Like king, like law; like law, like people.
Every man who comes into England is en-
I consider all the encroachments made on the
(lex talionis); sumptuary law (lex sumptu-
PORTUGUESE PROVERB
titled to the protection of the English law,
aria); the law of things (jus rerum); the un-
Constitution heretofore as nothing, as mere
whatever oppression he may heretofore have
written law (lex non scripta); the law of
[See also Aggression, Arms, Ballad, Constitu-
retail stuff, compared with the wholesale
suffered, and whatever may be the color of
tion, Court, Crime, Crime and Punishment,
doctrine that there is a Common Law in
war (jus belli); the written law (lex scripta).
his skin.
LATIN PHRASES
Criminal, Custom, Disciple, Equity, Error,
force in the United States, of which, and
LORD MANSFIELD: Judgment in the case of
Evil, Execution, Freedom, Golden Rule,
of all the cases within its provisions, their
James Somersett, a Negro, June 22, 1772
The law protects everybody who can afford to
Habeas Corpus, Hanging, Hell, Ignorance,
courts have cognizance.
hire a good lawyer.
Author unidentified
Injustice, Judge, Judiciary, Jurisprudence,
THOMAS JEFFERSON: Letter to Charles
There is no presumption in this country [Eng-
Pinckney, Oct., 1799
land] that every person knows the law: it
PN6081
932
HRC.
t:
FPR
BOOK OF QUOTATIONS
A NEW COLLECTION OF FAMOUS SAYINGS, REFLECT-
ING THE WISDOM AND THE WIT OF TIMES PAST AND
PRESENT AND INCLUDING THE VIRTUOUS, HUMOR-
OUS, AND PHILOSOPHIC COMMENTARY ON LIFE BY
MEN AND WOMEN OF EVERY AGE TOGETHER WITH
RICHES FROM THE PROFOUND WELLS OF THE BI-
BLE, PROVERBS, AND ANONYMITY AS SELECTED BY
FRANKLIN PIERCE ADAMS
I quote others only in order the better
to express myself. - MONTAIGNE
140828
FUNK & WAGNALLS COMPANY : : NEW YORK
484
LAUGHTER
LAUGHTER
485
LAW
coming to
I laugh because I must not cry.
igh. When
-ABRAHAM LINCOLN (1809-1865)
There are few who would not rather
A fool lifteth up his voice with laugh-
If you are wise, laugh.
be hated than laughed at.
ter, but a wise man doth scarce smile
e.
SMITH
670-1729)
SC. i
Sketches SYDNEY of Moral Philosophy
(1771-1845)
a little.
-MARTIAL (c. A.D. 66) Epigrams
-Ibid. xxi, 20
sides with
Laughter holding both his sides.
The pleasantest laughter is at the ex-
LAW
-JOHN MILTON (1608-1674) L'Alle-
gro
pense of our enemies.
870) The
-SOPHOCLES (495-406 B.C.) Ajax
Taking the law into one's own hands.
-ESOP (6th C. B.C.) Fables
He deserves Paradise who makes his
companions laugh.
The Horse-Laugh is a distinguishing
he vacant
-MOHAMMED (570-632) The Koran
characteristic of the rural hoyden.
Who to himself is law, no law doth
-RICHARD STEELE (1672-1729) The
need,
730-1774)
I'm made a laughing-stock.
Guardian, No. 29
Offends no law, and is a king indeed.
-PLAUTUS (c. 254-184 B.C.) Me-
In laughing whole-heartedly a man
-GEORGE CHAPMAN (1559?-1634?)
næchmi
Bussy D'Ambois
laughs at
must attain a certain freedom from
at every-
He who laughs, lasts.
selfishness, a certain purity; and the
The laws place the safety of all be-
-MARY PETTIBONE POOLE (contempo-
greatest saints are the merriest-heart-
fore the safety of individuals.
01-1658)
rary) A Glass Eye at the Keyhole
ed people.
-CICERO (106-43 B.C.) De Finibus,
9
Laugh and grow fat.
--MARY WEBB (1881-1927) Spring of
Bk. III, ch. xix
laught in
-ENGLISH PROVERB
Joy: Laughter
He laughs best who laughs last.
Laugh, and the world laughs with you;
The voice of nations and the course
?-1580?)
-ENGLISH PROVERB
Weep, and you weep alone.
of things
For the sad old earth must borrow its
Allow that laws superior are to kings.
Too much laughter deadens the mind.
mirth,
-DANIEL DEFOE (1661?-1731) The
se among
-HEBREW PROVERB
But has troubles enough of its own.
True-Born Englishman
Better to write of laughter than of
-ELLA WHEELER WILCOX (1855-1919)
c.) Iliad,
tears,
Solitude
Time is the best interpreter of every
doubtful law.
Because to laugh is proper to a man.
ere is no
Laughter is not a bad beginning for a
-FRANÇOIS RABELAIS (1494?-1553)
-DIONYSIUS OF HALICARNASSUS (d. c.
ghter.
friendship, and it is the best ending for
7 B.C.) Antiquities of Rome
Gargantua: To the Readers
la, Bk. I,
one.
He who laughs Friday will cry Sunday.
-OSCAR WILDE (1854-1900) The Pic-
Some say men on the back of law
-JEAN BAPTISTE RACINE (1639-1699)
ture of Dorian Gray
May ride and rule it like a patient ass,
nd laugh
Les Plaideurs, Act I, SC. ii
And with a golden bridle in the mouth
Woe unto you that laugh now! for ye
) Every
He was born with a gift of laughter
shall mourn and weep.
Direct it into anything they please.
and a sense that the world is mad.
-NEW TESTAMENT: Luke, vi, 25
-NATHANIEL FIELD (1587-1633) A
Act III,
Woman is a Weathercock
-RAFAEL SABATINI (1875-1950) Sca-
As the crackling of thorns under a pot,
ramouche
a laugh.
so is the laughter of a fool.
Possession is nine points of the law.
tires, no.
Everything gives cause for either
-OLD TESTAMENT: Ecclesiastes, vii, 6
-THOMAS FULLER (1608-1681) Holy
laughter or tears.
War, Bk. v, ch. 29
Laughed thee to scorn.
-SENECA (4? B.C.-A.D. 65) De Ira,
ght of a
-Ibid. Isaiah, xxxvii, 22
Bk. II, ch. x, sec. 5
The law is laid down to you.
imity of
Even in laughter the heart is sorrow-
-HORACE (65-8 B.C.) Epistula, Bk.
e female
I will laugh like a hyen.
ful; and the end of that mirth is
II, ep. ii
the mind
-WILLIAM SHAKESPEARE (1564-1616)
heaviness.
As You Like It, IV, i, I62
-lbid. Proverbs, xiv, I3
Taken in flagrant violation of the law.
)
In-
I shall laugh myself to death.
-JUSTINIAN I (527-565) Corpus Iuris
He will laugh thee to scorn.
-Idem The Tempest, II, ii, 159
Civilis Romani, Code IX, tit. xiii,
-APOCRYPHA: Ecclesiasticus, xiii, 7
sec. I
LAW
486
LAW
487
LAW
LAW
In law a man is guilty when he vio-
Let them have all the rigour of the
The letter killeth, but the spirit giveth
The beginning of the law is benevo-
lates the rights of another. In ethics
law.
life.
lence, and with benevolence it ends.
he is guilty if he only thinks of doing
NEW TESTAMENT: II Corinthians,
-BABYLONIAN TALMUD: Sotah
-WILLIAM SHAKESPEARE (1564-1616)
so.
II Henry VI, I, iii, 199
iii, 6
II. LAW: ITS SHORTCOMINGS
-IMMANUEL KANT (1724-1804) Lec-
But now we are delivered from the
ture at Königsberg, 1775
We must not make a scarecrow of the
law,
law, that being dead wherein we were
Written laws are like spiders' webs;
Not everything which the law allows
held; that we should serve in newness
they hold the weak and delicate who
is honorable.
Setting it up to fear the birds of prey,
And let it keep one shape, till custom
of spirit, and not in the oldness of the
might be caught in their meshes, but
-LEGAL MAXIM
letter.
are torn in pieces by the rich and pow-
make it
-Ibid. Romans, vii, 6
erful.
Laws only bind when they are in ac-
Their perch and not their terror.
-ANACHARSIS (f. c. 600 B.C.) in Plu-
cordance with right reason, and hence
-Idem Measure for Measure, II, i,
The law is not made for a righteous
tarch's Solon
with the eternal law of God.
man, but for the lawless and disobe-
He will give you both the law and the
-POPE LEO XIII (1810-1903) Rerum
dient, for the ungodly and for sinners,
Agree, for the law is costly.
prophets.
Novarum
for manslayers.
-WILLIAM CAMDEN (1551-1623) Re-
-GEORGE BERNARD SHAW (1856-1950)
-Ibid. I Timothy, i, 9
mains Concerning Britain
The man who does no wrong needs no
Captain Brassbound's Conversation,
law.
Act II
I. LAW: DEFINITIONS
Men would be great criminals did they
-MENANDER (342-291 B.C.) Frag-
need as many laws as they make.
The common sense of most shall hold
Law is a pledge that the citizens of a
ments
CHARLES JOHN DARLING (1849-
a fretful realm in awe,
state will do justice to one another
The purpose of law is to prevent the
And the kindly earth shall slumber,
-ARISTOTLE (384-322 B.C.) Politics
1936) Scintillæ Juris
strong always having their way.
lapt in universal law.
Law is not justice, but the sacrifice
All laws are useless, for good men do
-OVID (43 B.C.-A.D. 18?) Fasti
-ALFRED, LORD TENNYSON (1809-
Of singular virtues to the dull world's
not need them, and bad men are made
Law, lord of all, mortals and immor-
1892) Locksley Hall
ease of mind.
no better by them.
tals, carries everything with a high
He gives laws to the peoples, and
-GORDON BOTTOMLEY (1874-
)
-DEMONAX (f. 150) in Lucian's (2nd
hand.
makes for himself a way to the heav-
The Riding to Lithend
C.) Demonax
-PINDAR (c. 522-442 B.C.) Fragments
ens.
Law is whatever is boldly asserted and
Laws too gentle are seldom obeyed;
There is a written and an unwritten
-VERGIL (70-19 B.C.) Georgics, iv,
plausibly maintained.
too severe, seldom executed.
law. Written law is that under which
562
-AARON BURR (1756-1836)
-BENJAMIN FRANKLIN (1706-1790)
we live in different cities, but that
The law of the past cannot be eluded,
Law is nothing else but right reason,
Poor Richard's Almanack
which has arisen from custom is called
The law of the present and future
calling us imperiously to our duty, and
Laws grind the poor, and rich men
unwritten law.
cannot be eluded
prohibiting every violation of it.
rule the law.
-PLATO (428-347 B.C.) attr.
The law of the living cannot be eluded
-CICERO (106-43 B.C.) Orationes Phi-
-OLIVER GOLDSMITH (1730-1774) The
Abundance of law breaks no law.
-it is eternal.
lippica
Traveller, 1. 386
Do more than the law requires, rather
-WALT WHITMAN (1819-1892) To
The Law is the true embodiment
Think of Time
The attempt to guard adult man by
than leave anything undone that it
Of everything that's excellent.
law is a bad education for the battle
does.
O king, establish the decree, and sign
It has no kind of fault or flaw,
of life.
-SCOTTISH PROVERB
the writing, that it be not changed,
And I, my Lords, embody the Law.
-WILLIAM EDWARD HARTPOLE LECKY
The law of nations.
according to the law of the Medes and
-SIR WILLIAM S. GILBERT (1836-1911)
(1838-1903) Democracy and Liberty
-FRANÇOIS RABELAIS (1494?-1553)
Persians, which altereth not.
Iolanthe, Act I
Pantagruel, Bk. iii, ch. 44
-OLD TESTAMENT: Daniel, vi, 8
The law is blind, and speaks in general
Laws were made to be broken.
-CHRISTOPHER NORTH (1785-1854)
Ye shall have one manner of law, as
terms.
No man is above the law and no man
-THOMAS MAY (1595-1650) The Heir
Noctes Ambrosianæ, No. 24
is below it; nor do we ask any man's
well for the stranger, as for one of
permission when we require him to
your own country.
Law, the despot of mankind, often
The law for rich and poor is not the
obey it.
-Ibid. Leviticus, xxiv, 22
compels us to do many things which
same.
-THEODORE ROOSEVELT (1858-1919)
He that keepeth the law, happy is he.
are against nature.
-PLAUTUS (c. 254-184 B.C.) Cistel-
Message, January, 1904
-Ibid. Proverbs, xxix, 18
-PLATO (428-347 B.C.) Protagoras
laria
PN6081
B27
1980
WH
t: Familiar
Quotations
A collection of passages, phrases and
proverbs traced to their sources in
ancient and modern literature
FIFTEENTH AND 125TH ANNIVERSARY EDITION
REVISED AND ENLARGED
John Bartlett
Edited by EMILY MORISON BECK
and the editorial staff of Little; Brown and Company
LB
LITTLE, BROWN AND COMPANY
BOSTON
TORONTO
Virgil
Virgil
105
es upon the deep.9
1
We have been Trojans; Troy has been.
17
Death's brother, Sleep.⁹
Ib. l. 278
Ib. l. 89
Ib. l. 325
18 The swamp of Styx, by which the gods take
nes blessed!¹⁰
There is but one safety to the vanquished
oath.
2
Ib. l. 323
Ib. l. 94
to hope not safety.
Ib. l. 354
19
Unwillingly I left your land, 0 Queen. 10
Ib. l. I50
3
Our foes will provide us with arms.
Ib. l. 460
Ib. l. 39r
orse things; God will
20 Had I a hundred tongues, a hundred
so.
Ib. l. I99
4
The gods thought otherwise.¹
mouths, a voice of iron and a chest of brass,
Ib. l. 428
I could not tell all the forms of crime, could
will be pleasant to re-
5
Thrice would I have thrown my arms about
not name all the types of punishment. 11
Ib. l. 203
her neck, and thrice the ghost embraced fled
Ib. l. 625
nan. 12
Ib. l. 3⁶₄
from my grasp: like a fluttering breeze, like a
Ib. l. 793
21 That happy place, the green groves of the
fleeting dream. 2
er as a true goddess.
dwelling of the blest.
Ib. l. 638
Ib. l. 405
6
O accurst craving for gold!
Ib. III, l. 57
22 The spirit within nourishes, and the mind,
lose walls already rise!
diffused through all the members, sways the
Ib. l. 437
7
Rumor flies.
Ib. l. I21
mass and mingles with the whole frame.
I feel again a spark of that ancient
Ib. l. 726
; of things; mortality
flame.⁴
Ib. IV, l. 23
Ib. l. 462
23 Each of us bears his own Hell. 12
9
Deep in her breast lives the silent wound.
Ib. l. 743
on between Trojan and
Ib. l. 6₇
Ib. l. 574
24 Others, I take it, will work better with
10 A woman is always a fickle, unstable
breathing bronze and draw living faces from
S own rectitude. 14
thing.⁵
Ib. l. 569
marble; others will plead at law with greater
Ib. l. 604
11 Arise from my bones, avenger of these
eloquence, or measure the pathways of the
all run down to the sea,
wrongs!
Ib. l. 625
sky, or forecast the rising stars. Be it your
e mountain slopes, or
12 Thus, thus, it is joy to pass to the world
concern, Roman, to rule the nations under
ult of heaven, so long
below.⁶
Ib. l. 660
law (this is your proper skill) and establish
ur name, your praises
the way of peace; to spare the conquered and
Ib. l. 607
13 Naked in death upon an unknown shore.
put down the mighty from their seat. 13
Ib. V, l. 871
W and learned to aid the
Aeneid, Ib. l. 847
14 Yield not to evils, but attack all the more
Ib. l. 630
25 Give me handfuls of lilies to scatter. 14
boldly.
Ib. VI, l. 95
Ib. l. 883
ieen, is the sorrow you
15 It is easy to go down into Hell; night and
Ib. II, l. 3
day, the gates of dark Death stand wide; but
26 There are two gates of Sleep. One is of
to climb back again, to retrace one's steps to
horn, easy of passage for the shades of truth;
ear Greeks even when
the upper there's the rub, the task.⁷
the other, of gleaming white ivory, permits
Ib. l. 49
Ib. l. 126
false dreams to ascend to the upper air. 15
e know the nation.
Ib. l. 893
Ib. l. 65
16 Faithful Achates.
27
Ib. l. 158 and elsewhere
Prayed to the Genius of the place.
16
Ib. l. 204
Ib. VII, l. 136
¹Dis aliter visum.
um home of the gods, O
²Virgil here translates HOMER, Odyssey, bk. XI, l. 204.
28 We descend from Jove; in ancestral Jove
Ib. l. 241
See 60:8.
battle!
Troy's sons rejoice.
Ib. l. 219
³Fama volat.
ext door. 17
⁴Agnosco veteris vestigia flammae.
29
If I cannot bend Heaven, I shall move Hell.
Ib. l. 311
See Dante, 142:6.
⁵Varium et mutabile semper femina.
Ib. l. 312
Woman often changes; foolish the man who trusts her.
30 An old story, but the glory of it is forever.
eati!
-FRANCIS I OF FRANCE [1494-1547], written by him with
neminisse iuvabit,
his ring on a window of the château of Chambord (BRAN-
Ib. IX, l. 79
TÔME, Oeuvres, VII, 395)
9See Homer, 58:20; Daniel, 182:4; Shakespeare, 238:6;
La donna è mobile. FRANCESCO MARIA PIAVE [1810-
and Shelley, 466:6.
et mentem mortalia tangunt.
1879], libretto of Verdi's Rigoletto, Duke's song
¹⁰Aeneas to the ghost of Dido, who had killed herself
frectitude, laughed to scorn the
See Scott, 431:2.
when he left her.
ID [43 B.C.-A.D. 18], Fasti, bk.
Sic, sic, iuvat ire sub umbras.
"See Homer, 57:19.
⁷Facilis descensus Averni: Noctes atque dies patet atri
"See Marlowe, 183:21 and 184:1; Browne, 274:15; Mil-
0 Danaos et dona ferentis.
ianua Ditis; revocare gradum superasque evadere
ton, 283:13 and 285:12; Eliot, 809:1; Sartre, 865:12; and
ad auras, Hoc opus, hic labor est.
Lowell, 893:7.
Ucalegon.
See Matthew 7:13-14, 38:15; Bion, 92:7; Shakespeare,
¹³See Milton, 281:17.
he ancient counselors who sat
218:28 and 238:2; and Milton, 284:17.
"Quoted by DANTE in The Divine Comedy, Purgatorio,
His house was next to that of
⁸Fidus Achates. Proverbial for a trusty friend; Achates
canto XXX, l. 21.
was the faithful comrade of Aeneas.
as.
¹⁵See Homer, 61:2.
April 24, 1990
MEMORANDUM FOR CHRISS WINSTON
DAN MCGROARTY
PEGGY DOOLEY
FROM:
STEPHANIE BLESSEY
SUBJECT:
USC COMMENCEMENT REMARKS
The following is information gathered from the pre-advance
trip to Columbia, South Carolina.
Joke Material:
- When Louie, Louie is played at game upper decks of
Coliseum rock. They say, "If it ain't swaying, we ain't
playing." (USC fixed the upper decks, but they still say
it.)
- Parking is impossible.
- A pretty girl at Clemson is a visitor.
- 144 Clemson students are gross ignorance.
- All dirt roads lead to Clemson.
- The USC versus Southern California
- Jokes written by USC attached.
Special Places:
- The Horseshoe is the center of campus.
- Russell House is central activity center.
- Thomas Cooper Library is underground. Students have to
"go down" to study.
- throwing frisbee on the horseshoe, eating at Russell
House"
- grabbing a sandwich at Andy's deli
- eating at Yesterday's
- going out in 5 points
- Late night eats: IHOP and Capital Cafe
Familiars:
- As freshmen, taking University 101
- As seniors, trying to sell back your books
- In between, reading the personals in The Gamecock
- Song: 'Carolina on my Mind'
- University Tree Lighting on Horseshoe after Community
Service week.
School groups:
- NAACP
- Carolina Cares - community service
- CPU - Carolina Program Union
Famous teachers:
- Ambassador Walker (to South Korea)
- James Dickey - poet in residence
Trivia:
Mascot: Cocky the Gamecock
Colors: Garnet and black
12 schools in the University
Sports:
- Football is big sport, but they lost every game this year.
- Athletic director - King Dickson
- Football coach - Sparky Woods
- Together - The King and Sparky Show
- Cockfest is the homecoming pep rally.
- Play theme of 2001 at football games.
- Todd Ellis (q-back) and Harold Green were drafted for NFL.
- DO NOT mention George Rogers, the Heisman Trophy winner.
- Joe Morrison, the football coach, died last year; team was
the "black magic" of Joe Morrison.
Famous Visitors:
- The Pope in '87. He said, "It's good to be young and a
student at U.S.C."
(Seniors were sophomores.)
- Henry Kissinger
- President Reagan
- Sicily Tyson
Volunteers:
- Huricane Hugo - hundreds of students started by packing
supplies to be sent to the coast, and they continued their
efforts through the year -- travelling from Camden to Sumner
helping others get their lives back together.
- Classes would go help together.
-From Sister Care to Literacy programs to soup kitchens and
shelters.
Attachments:
Yearbook
Binder of background including jokes
International
WEST MEETS EAST
playing the role of a Washington or
DeGaulle as they get underway."
Drawn by pure democracy, consultants are reborn in Eastern Europe,
Argentinian pollster Felipe
by James David Barber
Noguera has it right when he says
that "these countries are not just
At the invitation of numerous
There were surprises that awak-
going though a change of adminis-
emerging political parties in
ened our jaded band. For instance,
tration, but of regime."
Czechoslovakia, Poland, and Hun-
is there anything more vital to a
In Hungary we were scheduled
gary, Campaigns & Elections export-
campaign than lists of voters? Last
to seminar in "Karl Marx University."
ed its campaign training seminars
fall. Hungary did a major national
By the time we got there, the name
to Eastern Europe for sessions
referendum, a vote which decided
had been changed to "University of
March 6-16. One of the partici-
to delay the choice of a president
Economics of Budapest."
pants, James David Barber, was the
until the new parliament was elect-
The big news from the three na-
designated scribe. This is bis report.
ed. Surely anyone gearing up for a
tions we visited is that democracy
parliamentary election would want
has stepped out onto the high wire,
We arrived as humble teachers.
that referendum list specifying thou-
leaving behind the rigid communist
We left as activist allies, anxious to
sands of available voters. But to
platform. facing forward to a risky
help make democracy-real democ-
Hungarians. person-listing had been
chance to establish freedom and jus-
racy-happen in Eastern Europe.
a weapon of the secret police for
tice for all. Now is the hour to guar-
Our conscience was off limits.
more than four decades. Tear them
antee non violence, citizenship for
We didn't come to preach at the
up and throw them away, they said.
all, rational consent of the gov-
democratic converts like some pon-
We thought the rock-bottom
erned. genuine law to regulate the
tificating patriarch who drops in to
challenge of political journalism is
straighten out his children. From the
going to be how to write the story.
start, as our Canadian leader Gor-
But over there. the biggest challenge
don Robson put it, we were not in
is getting paper to print the story
Hungary, Czechoslovakia, and
on. In Poland, the Communists bill
Poland to instruct them on how to
their own newspapers 800 zlotys
imitate us. Our American leader,
(about 8 cents) for a section of
Campaigns & Elections publisher
paper. Solidarity, the democracy
James Dwinell, echoed Robson's
movement, is charged 5,000 zlotys,
sentiments when he said, "We are
per section. In Eastern Europe,
not here to teach but to learn. We
newspapers are powerful campaign
will show you our ways but as with
tools. not forums for unbiased re-
a menu, you need to choose the
porting.
tactics and strategies that are right
And, we thought, if you're run-
for you and your political culture
ning for office, surely you'd like to
and teach us."
get your spouse on television or in
We came stressing cool tolerance
the newspaper. But to them, that
and open mindedness, and listened
implies nepotism-that if you win,
for their special needs and con-
your spouse will get a special job.
cerns. As Florida-based consultant
The political scene in Eastern Eu-
Lee Miller put it, "We offered you
rope is different from that in Eastern
hammers and nails."
New Jersey. As Wayne Johnson ob-
We whirled around, spending a
served. "We argue about zoning.
Democracy comes to Wenceslas Square, Prague
few days in each country, working
They're deciding whether or not to
economy and society, and secure,
seminars which started out sparsely
legalize private property."
democratically controlled foreign re-
populated in Budapest, and ended
The upcoming elections are not
lations.
in Warsaw with more than 350 polit-
like our 1988 model. They are
But to make it happen, leader-
ical party officials attending. On the
more like 1788, when our democra-
ship is necessary. In Hungary there
way, we changed. We fell off the
cy was being constituted in its basic
is a revulsion against coming out for
teacher's stool and took up the flag
fundamentals. Tony Quinn may be
some new political star. In
of freedom. We planed back to
right in suggesting that "maybe we
Czechoslovakia, the opposite oc-
America eager to help democracy
should encourage them to think of
curred. The love for Havel, the play-
grow from the revolution.
[Vaclav] Havel and [Lech] Walesa as
wright-president, is almost universal.
April - May, 1990 / Page 17
INSIDE
POLITICS
In Poland. Solidarity leader Lech
coalitions, eyes lit up. A new ver-
supper with a beautiful 17-year-old
Walesa has increasingly quiet re-
sion of the Federalist Papers might
gypsy girl who is emerging as a
spect, as if he were becoming yes-
make a hit.
vivid volunteer among many who
terday's leader.
Media politics is on a roll, but
think a gypsy is an animal; when
More importantly, what's needed
wobbling. Christine LaPaille says
you breakfast with a reporter whose
is local leadership, from the village
that "as democracy emerges in these
weekly magazine was underground
on up. In Poland,
countries, the press
and now going public; or you walk
they need thousands
will emerge also."
the street with a woman translator
of candidates for
But virtually all the
about to have a third child, who
local and regional
radio, television, and
says she never joined the commu-
offices before the
newspaper facilities
nists because "you have to look
June election, an
are owned by the
your children in the eye;" those
event unknown
state. Harsh censors
happenings turn your mind.
since World War II.
at the top have been
Randy Gilliland. president of
Political parties
replaced by permis-
Gilliland & Co.. a fundraising firm,
have been born, but
VEREJNOST
sive editors and pro-
put it this way: "After spending
they have yet to pass
ducers. Reporters on
many years in the American political
through their identity
PROTI
the street are invent-
arena. I had grown cynical. I had
crisis. Solidarity start-
ed as a trade union
NÁSILIU
ing their journalism
tired of petty. political arguments
day by day.
and in many ways lost my sense of
and is now an um-
The Slovak organization "Public
Democracy rests
political vision and idealism. This
brella for all sorts of
Against Violence" has become an
on citizens, which is
trip invigorated me. It made me turn
parties. As a Solidari-
umbrella for smaller Czech parties
why Campaigns &
back to the dreams and idealistic
ty M.P. put it, "What unifies us is the
Elections' seminars centered on the
views of my younger years."
will to fight the communists." But
age-old questions of democracy.
Such renewed dreams are spark-
with the communists on the way
How do you activate voters? Where
ing realities: Gilliland and Wayne
out. Solidarity must begin to orga-
do you get money to buy the tools
Johnson are raising funds for six
nize national unity.
for campaign action?
East European political organiza-
Hungary. on the other hand,
As the long days went on, those
tions, working to get U.S. newspa-
lacks a national umbrella. The
of us who listened and looked
pers to support papers in Poland.
Czechs have a broad-based "Civic
began to experience a newness of
and trying to have equipment con-
Forum" and the Slovaks the rapidly
life. When you have lunch with an
tributed to party offices.
broadening "Public Against Vio-
aging fellow working hard in poli-
Lee Miller, has taken on projects
lence." When our professional con-
tics after being jailed for six years as
in two countries for "organizational
sultants talked about how to build
a political prisoner; when you have
and communications opportunities."
C&E'S EASTERN EUROPE FACULTY
Ginnie Kontnik
Harriman Communications Center
Chuck Adams
Andrew Frank
Washington, DC
Adams and Co., Salem, OR
C&E, Washington, DC
Jerry Lampert
James David Barber
George Gibault
Principal Secretary to the Premier
Duke University, Durham, NC
Public Affairs Bureau, Victoria, BC
Victoria, BC
Robin Bell
Randy Gilliland
Christine LaPaille
International Center for
Gilliland & Company, Midlothian, VA
Agenda Communications
Development Policy, Washington, DC
Sal Guzzetta
Chicago, IL
Scott Berkowitz
Political Publishing, Alexandria, VA
Greg Lyle
C&E, Washington, DC
Wayne Johnson
Principal Secretary to the Premier of
Graham Bruce, M.L.A.
Wayne C. Johnson & Assoc.,
Manitoba, Winnipeg, Manitoba
Government of British Columbia,
Sacramento, CA
Lindsay Mattison
Duncan. BC
Jennifer Kessler
International Center for
James Dwinell
C&E, Washington, DC
Development Policy, Washington, DC
C&E, Washington, DC
Kelly Kimball
Lee Miller
Barry Fadem
Kimball Petition Management
Miller Consulting Group, Ltd.
Bagatelos & Fadem, San Francisco, CA
West Los Angeles, CA
Fort Lauderdale. FL
Page 18 / Campaigns & Elections 10th Anniversary Issue
George Gibault, director of re-
daily from April until the June elec-
search for the Public Affairs Bureau
tion. The first one tells the Czech
John Sinclair, Inc.
in British Columbia, linked himself
voter: "VPN took you to the revolu-
to numerous agricultural enterprises,
tion in Wenceslas Square. Vote on
whose technical aid he will enlist
the ballot SO we can finish the revo-
for urgent training needs.
lution!"
A stunning conversion from
To finish the revolution is to
preaching to participating happened
found democracy. In the capitol of
when Ginnie Kontnik, director of
Poland, we visited the great hall of
Harriman Communi-
the national parlia-
cations Center in
ment. Up front, fac-
Washington. and
ing the elected rep-
professional consul-
resentatives, is the
tants Kelly Kimball.
symbol of Poland. a
Image Management
Trish Whitcomb.
white eagle with
Issue Delineation
Barry Fadem, and
outstretched wings.
Grey Lyle struggled
The communists
Crisis Control
all night with "Pub-
left the eagle there
Strategic Consulting
lic Against Vio-
in 1945, but smash-
Public Relations
lence," the major or-
ed the crown off its
ganization working
head. When we
Speech Writing
for democracy in
were there, workers
the Slovakia part of
were putting on a
Czechoslovakia.
new crown. Will
Kontnik and the
Collecting political party volunteers in
the new crown of
rest see themselves
Wenceslas Square, Prague
democracy hold
as "volunteers who were asked to
firm on the head of the nation? The
help." And help they will. They
wonder and the uncertainty are still
have formed the nonprofit volun-
there.
teers for democracy to get donations
of high-tech equipment and a sup-
James David Barber is on the
Guaranteed
ply of detailed strategic advice. The
faculty of Duke University in North
Performance
group already has put together a set
Carolina as a James B. Duke Pro-
of four-minute television ads for
fessor of Political Science and Policy
Public Against Violence to be used
Studies.
Exceptional Results
Rev. James Noble
Cliff Scotton
Decatur, GA
New Democratic Party of Canada,
Phil Noble
Nanaimo, BC
The Palmetto Project, Charleston, SC
Amanda Smith
Felipe Noguera
Sex Equity Consultant, Durham, NC
Mora y Araujo Noguera,
Patricia Whitcomb
Buenos Aires, Argentina
Bates & Associates, Indianapolis, IN
Beth Provinse
Robert White
John Sinclair, Inc.
Conotabs, Bethesda, MD
International Center for
28 Hart Avenue
Tony Quinn
Development Policy, Washington, DC
Hopewell, NJ 08525
Braun and Company
Sacramento, CA
VOLUNTEERS FOR DEMOCRACY
609/466-9223
Gianni Riotta
Several participants in C&E's trip
For more information
Corriere Della Sera, New York, NY
have formed a non-profit organiza-
circle # 12
tion to provide support for VPN, the
Gordon Robson
Slovak Democracy movement. If you
on reader response card
Robson and Assoc., Maple Ridge, BC
would like to donate computers,
Mary Robson,
faxes, copiers, your time, or anything
Robson and Assoc., Maple Ridge, BC
else, please call (800) 237-7842.
April - May, 1990 / Page 19
THE WHITE HOUSE
WASHINGTON
Bush spoke at
USC in 1985.
Maybe Emily
has it
Smithsonia Guide to Hytoric
Cenerica
156
THE MIDLANDS
Whitehall (310 West Earle Street, private) is Greenville's oldest
residence, built in 1813. It was constructed as the summer home of
former South Carolina governor Henry Middleton, who served at
another time as ambassador to Russia. His father, Arthur Middleton,
was a signer of the Declaration of Independence. The Bob Jones
University Art Gallery and Museum (1700 Wade Hampton
Boulevard, 803-242-5100) has an important international collection
of religious art, dating from the thirteenth to the nineteenth century,
from Spain, Italy, France, Germany, and Holland, featuring works by
Dolci, Rembrandt, Rubens, Titian, and Van Dyck.
In the town of Conestee is the McBee Methodist Church Chapel
(Main Street), one of few octagonal churches remaining in America.
The brick one-story structure with a pyramidal roof and an octago-
nal cupola was built around 1841.
THE MIDLANDS
South Carolina was originally divided along the fall line stretching
diagonally across the state from Aiken in the southwest to Cheraw in
the northeast. The fall line thus divided the "civilized" low-country,
including Charleston, from the "uncivilized" up-country north and
west. Eventually the region that was not close enough to the moun-
tains to be considered part of the up-country but too far north of
Charleston to be claimed by the low-country began to be designated
as the midlands. This tour begins in the capital city of Columbia and
moves southwest toward Aiken and then southeast through the
counties of Aiken, Barnwell, Allendale, and Bamberg. From there, it
swings north to cover the midlands area south of Columbia and
then turns northeast to the Pee Dee River country near Florence.
COLUMBIA
In 1786 the South Carolina legislature voted to establish a capital city
near the geographic center of the state, where the Broad and Saluda
rivers converge to become the Congaree River. The decision to move
the seat of government from Charleston to the new site represented
a compromise between up-country farmers and low-country planters.
OPPOSITE: Columbia's First Prebyterian Church where Woodrow Wilson's father
served as minister from 1870-1874, and where his parents are buried.
158
THE MIDLANDS
THE MIDLANDS
159
The planned city was surveyed in 1787 on a two-mile-square plot.
By laying out all streets 100 feet wide and main thoroughfares 150
most of Columbia was destroyed by fire. Eighty-four blocks were left
diseases feet wide, the planners created a spacious town where, they hoped,
in ashes. Some historians have pointed out that the fires that
destroyed much of Columbia were in part the responsibility of evac-
was named after Christopher Columbus.
would not spread rapidly from house to house. The city
uating Confederate troops who set fire to cotton bales, piled in the
James Hoban, later the architect of the White House, designed
streets, to keep the cotton from Yankee hands. Others point to the
the first state house, where the South Carolina General Assembly
fact that whiskey left behind by the Confederates fueled the passions
of some Federal soldiers, who did indeed set fires in Columbia.
met in 1790. When George Washington visited there in 1791, he
few described Columbia in his journal as "an uncleared wood with
Later, Sherman insisted that he never wanted to burn Columbia and
houses in it." Just west of the present State House, a granite very
pointed out that he led the effort to put out the fires.
In the area known as Arsenal Hill, which includes the
monument marks the site of the first structure. The textile indus-
try 1800s. and other businesses were active in Columbia by the early
Governor's Mansion Complex and the surrounding nineteenth-cen-
In 1801 the University of South Carolina (then South
tury residential district, is the Columbia City Hall (1737 Main at
Carolina College) was chartered. The population grew and the
Laurel Street), built in 1874 to serve as a federal courthouse and
economy thrived through the 1830s. A convention was held in
post office. The Columbia Historic District is a residential area that
includes the Robert Mills House and other mansions of various
Columbia at the First Baptist Church on December 17, 1860, to
draw up the South Carolina Ordinance of Secession. The docu-
architectural styles built for the city's bankers, merchants, and law-
makers. A notable example is the Seibels House (1601 Richland
after a smallpox epidemic caused the relocation of the convention.
ment was completed and signed in Charleston on December 20,
Street, 803-252-7742). The oldest home in Columbia, built in the
The First Baptist Church was the site of meetings of the South
late 1700s and renovated in the 1920s, it is now headquarters for the
Carolina General Assembly during Reconstruction when the State
Historic Columbia Foundation. Many of the homes burned during
House was under construction.
Sherman's occupation in 1865. The Old Campus District of the
The First Presbyterian Church (1324 Marion Street) was
University of South Carolina includes the campus buildings
nized in 1795. The present Gothic Revival building was built in orga- 1853
designed by Robert Mills, the 1805 Rutledge College, and the 1827
and remodeled and enlarged in 1925. The Ladson Presbyterian
Maxcy Monument. Allen University (1530 Harden Street), with a
school Church (1720 Sumter Street) was organized in 1838 as a Sunday
small campus built between 1881 and 1941, is named for the
for blacks by the First Presbyterian Church; the
founder of the African Methodist Episcopal Church, Bishop Richard
building, the second on this site, was built in 1896. Saint present Peter's
Allen. The brick Georgian Revival Chapelle Administration Building
Catholic Church (1529 Assembly Street) was first built in 1824 for
was built in 1922 to designs by John Anderson Lankford, a leading
Catholic immigrants who had moved to the area to construct the
black architect of the day. The school emphasized training for the
Victorian Gothic Washington Street United Methodist Church (1401
Columbia Canal; the present church was built in 1906. The High
clergy and also offered industrial and agricultural courses and a law
curriculum, a feature distinguishing it from other southern schools
Washington Street) was rebuilt in 1866 and again in 1872 after it
for blacks. The Saluda Factory Historic District (along the Saluda
burned during Sherman's 1865 march through Columbia.
River in West Columbia, southeast of the intersection of Routes I-
During the Civil War, hospitals, banks, a Confederate mint,
126 and I-26) was a Confederate prisoner-of-war camp. The granite
and a weapons factory operated in the capital. As Sherman's
foundations of the factory complex are all that remained standing
here. proceeded through the state, thousands of people took refuge army
after the burning of Columbia.
Sherman and his Federal troops took the city on February
Fort Jackson, named for President Andrew Jackson, was built
17, 1865, after shelling it from across the Congaree River
in 1917. On the post is the Fort Jackson Museum (Jackson
February 16. On the first night of Sherman's occupation of the city, on
Boulevard, 803-751-7419) with collections relating to the history
of the fort.
THE MIDLANDS
161
South Carolina State Museum
Beside the Congaree River is the 1895 Columbia Duck Mill (former-
ly a manufacturer of heavy cotton duck fabric); it was among the
first cotton mills in America to be fully powered with electricity. The
renovated factory building now holds the state museum complex.
Each level of the massive, four-story brick mill highlights a different
aspect of life in the state. An art gallery features works by artists with
South Carolina connections. Natural history exhibits cover modern
and prehistoric animals and the geology of the region. Science and
technology exhibits include a section on the development of the
laser and maser by the 1964 Nobel Prize winner in physics, Charles
H. Townes, a South Carolinian. Cultural history exhibits display arti-
facts illustrating the region's history from about 12,000 B.C. to the
present. The complex is also the headquarters for the Greater
Columbia Convention and Visitors Bureau (803-254-0479).
LOCATION: 301 Gervais Street. HOURS: 10-5 Monday-Saturday, 1-5
Sunday. FEE: Yes. TELEPHONE: 803-737-4921.
Riverfront Park and Historic Columbia Canal (off Laurel Street,
803-733-8613) preserves a one-mile canal completed in 1824. It
allowed barges to bypass the rapids that presented the only naviga-
tional hazard where the Saluda and Broad rivers join to become the
Congaree. By 1895 the canal powered the Columbia Duck Mill, also
called the Mount Vernon Mill. The park surrounds the city's origi-
nal hydroelectric plant and restored waterworks facility, which is
open to the public.
Governor's Mansion Complex
Two blocks north of the Canal Park is the nine-acre Governor's
Mansion Complex, which comprises the Governor's Mansion, Lace
House, and Boylston House. The Governor's Mansion, completed in
1855, is a two-story stucco structure with wrought-iron grillwork orna-
menting the flanking porches. Originally the officers' quarters of
the state arsenal's military academy, the building has been the gov-
ernor's residence since 1868. Some rooms are open to the public.
Also enclosed in a block-long area surrounded by a wrought-iron
fence and gateway are the Lace House (803 Richland Street), built
OPPOSITE: A palmetto, the South Carolina state tree, stands in front of the Governor's
Mansion in Columbia.
162
THE MIDLANDS
THE MIDLANDS
163
in 1854 with Greek Revival elements, and the Boylston House (829
Richland Street), built in the 1820s.
Burke Davis, "Logan swore fearfully when he was handed Sherman's
order" but yielded the house to the determined nun.
LOCATION: 800 block of Richland Street. HOURS: By appointment
The house is furnished with family pieces from three plantations
only. FEE: None. TELEPHONE: 803-737-1710.
of the Hamptons and Prestons, including photographs, crystal, and
china from the family's Millwood Plantation. The Rococo Revival fur-
Mann-Simons Cottage
niture in the drawing room reflects Caroline Hampton Preston's
This cottage was built around 1850 by Celia Mann, a freed slave
tastes. A centerpiece of the Manning Room, which features fashions
from Charleston, one of 200 free blacks in Columbia. Mann estab-
of the 1800s, is a gold silk brocade wedding dress. Other family
lished the First Calvary Baptist Church here, one of the earliest
pieces include General Wade Hampton II's gold-handled umbrella
post-Civil War black churches in South Carolina. The structure,
and his father's ivory and ebony dominoes.
restored to the period of the 1880s, was also home to Bill Simons,
LOCATION: 1615 Blanding Street. HOURS: 10:15-3:15 Tuesday-
black musician and music teacher. It houses a museum of African- a
Saturday, 1-5 Sunday. FEE: Yes. TELEPHONE: 803-252-1770.
American culture, including personal items that belonged to Mann
and other black Columbia residents.
Robert Mills Historic House
LOCATION: 1403 Richland Street. HOURS: 10-4 Tuesday-Friday, 11-2
One of the ten or so documented residences designed by Robert
Saturday. FEE: Yes. TELEPHONE: 803-254-1450.
Mills, this house was built for Mills's friend Ainsley Hall, a prosperous
merchant who had lived in the house across the street until he sold it
Hampton-Preston Mansion
in 1823 to Wade Hampton I. The story goes that Wade Hampton
took his new bride on a buggy ride around Columbia and told her he
The mansion, built around 1818 and originally owned by the
would buy her any home she wanted. When Mrs. Hampton chose
wealthy merchant Ainsley Hall, was the townhouse of the Hampton
Ainsley Hall's house at 1615 Blanding Street, Hall sold quickly at a
family from 1823 to 1873. This well-known South Carolina family
good price, but without consulting his wife, who refused to move
included three Wade Hamptons: The first was a veteran of the
until her husband agreed to build her a new house, bigger than the
American Revolution and a general in the War of 1812; his son
first, across the street and looking down on the old one.
inherited his plantations and became even richer; the third, a Civil
The brick "two-story house, with a two-story Ionic portico built
War general, served later as a South Carolina governor and U.S. sen-
over a high, aboveground arcaded basement, is one of the most
ator. The house passed to State Senator John S. Preston with his
ambitious of Mills's Greek Revival structures. The house, with three-
marriage to Caroline Hampton, and in the 1840s, they changed the
part Venetian windows with movable interior shutters, has a symmet-
red brick to stucco and added a suite of twenty-four rooms. The two-
rical floor plan: four rooms to each floor, with curved ends in two
and-a-half-story structure, with Jeffersonian Classical elements, has a
rooms and the main hall. Mills is best known as the designer of the
full-width Doric portico with a full entablature and a wrought-iron
U.S. Treasury Building, Patent Office, and the Washington
railing over a high arcaded basement.
Monument in Washington, DC, although his plans for the monu-
During the Federal occupation of Columbia, the house was the
ment were not followed. The Halls never occupied the house
headquarters of General John Logan, who intended to destroy it
because Ainsley Hall died before it was completed. His widow sold it
upon his departure. However, it was saved by an Ursuline nun, Sister
to the Presbyterian Synod for use as the Columbia Theological
Baptista, who had known General Sherman before the war. She
Seminary. The restored brick townhouse now houses a decorative-
asked Sherman to provide a shelter for the girls in her care after her
arts museum of early-nineteenth-century furnishings.
convent had burned. The general instructed her to choose "any of
the houses left in the city" for her use. According to the historian
LOCATION: 1616 Blanding Street. HOURS: 10:15-3:15 Tuesday-
Saturday, 1-5 Sunday. FEE: Yes. TELEPHONE: 803-252-1770.
164
THE MIDLANDS
The brick Greek Revival First Baptist Church (1306 Hampton
Street), with four Tuscan columns of molded brick, was the site of
the first meeting of the South Carolina Secession Convention held
in 1860. Legend has it that the church escaped burning during the
Federal occupation when a black sexton of the First Baptist gave sol-
diers directions to an old wooden structure instead of this one.
Woodrow Wilson Boyhood Home
Built in 1872 by the Reverend Joseph Ruggles Wilson and Jessie
Woodrow Wilson, the Tuscan-villa-style house was the home of
Thomas Woodrow Wilson from the age of 14 to 17. Known as
"Tommy" to Columbians, Woodrow Wilson lived here while his
father was a professor at the Columbia Theological Seminary and the
minister of Columbia's First Presbyterian Church. The house, with
gas lighting fixtures, Wilson family photographs, period pieces, and
some original furnishings, is a good example of a Victorian middle-
class Presbyterian home during the period of Reconstruction in
South Carolina. Furnishings include the bed where the twenty-eighth
president was born when the family lived in Virginia.
LOCATION: 1705 Hampton Street. HOURS: 10-4 Tuesday-Saturday,
1-5 Sunday. FEE: Yes. TELEPHONE: 803-252-1770.
Also on Hampton Street is the Chesnut Cottage (1718 Hampton
Street, private), the Civil War home of Confederate general James
Chesnut and his wife, writer Mary Boykin Miller Chesnut, author of
A Diary From Dixie, written during the Civil War but published posthu-
mously in 1905. The white frame one-and-a-half-story house is a good
example of the "Columbia cottage": It has a central dormer with an
arched window above the central entrance; the small porch has four
octagonal columns and an ironwork balustrade. Mary Chesnut
described a visit from Jefferson Davis to the house in 1864: When
Davis was recognized on the porch by a passerby, a crowd gathered,
and "the President's hand was nearly shaken off." The Horry-
Guignard House (1527 Senate Street, private), a two-story frame resi-
dence with square front columns, is believed to have been built
around 1813 by Revolutionary War colonel Peter Horry.
opposite: The west parlor of the Robert Mills House, completed in 1825, contains an
Aubusson rug and a pair of sofas from the period.
166
167
THE midlands
THE MIDLANDS
South Carolina State House
native The three-story Italian Renaissance Revival State House of
granite, and brick was designed by John R. Niernsee. It is iron,
Columbia. only structure on Main Street that predates the burning the of
noticed that it was a "handsome granite structure." But when 1865,
he building allowed as his army arrived outside the city on February 16,
When General Sherman first glimpsed the unfinished
authorized the Confederate flag waving defiantly above the building he he
his batteries to fire on it from a distance of
mark one-half mile. Bronze stars on the south and west exterior more than
the spots where the shells hit. Begun in 1851, the State House walls
Milburn was not completed until 1907. After Niernsee's death in 1885,
drum, designed the central dome with a square base, Frank
and and cupola. In 1907 Charles Coker Wilson added the octagonal
and south porticoes. Impressive granite stairs lead to these columns north
the second-floor entrances.
LOCATION: Main and Gervais streets. HOURS: 9-12 and 1:30-4
The South Carolina State House is constructed of blue granite from local quarries. To
Monday-Friday. FEE: None. TELEPHONE: 803-734-2430.
transport the stone, a special three-mile railroad was built from Columbia to the
quarries in 1857. OVERLEAF: The ruins of Millwood, the house where the Confederate
General Wade Hampton spent much of his boyhood.
University of South Carolina-Horseshoe
the Founded in 1801 and opened in 1805 as South Carolina
Movietone News film collection, newsreels shot worldwide from
shoe original part of the campus was laid out in the shape of College, a horse-
1919 to 1963.
Horseshoe and surrounded by a brick wall. Located in the
1827 is the Maxcy Monument, designed by Robert center Mills of the
LOCATION: 900 Sumter Street. HOURS: 9-4 Monday-Friday, 10-5
the Civil was the first of five college buildings constructed completed here in
Rutledge 1805, College, also designed by Robert Mills and Maxcy.
to honor the first college president, Dr. Jonathan in
Saturday, 1-5 Sunday, FEE: None. TELEPHONE: 803-777-7251.
Near the campus is the South Carolina Confederate Relic Room and
Union War. It was used as a Confederate hospital, as before for
Museum (920 Sumter Street, 803-734-9813), where exhibits focus
Reconstruction. troops, and as a General Assembly meeting place quarters
on all periods of South Carolina history, with the primary collection
In 1865 the school was rechartered during
devoted to the period of the Confederacy. Relics include firearms
a a three-story brick Greek Revival building built in 1840,
ed University in of South Carolina. The South Caroliniana Library, as locat- the
made in South Carolina, sabers, flags, currency, newspapers, pho-
tographs, and uniforms from the colonial period to the present.
large and collection of South Carolina manuscripts, personal holds
Built in 1846 and designed by Edward Brickell White after the
antique silver and cut gemstones, as well as exhibits of
maps, prints. The McKissick Museum features collections papers,
design of England's York Cathedral, Trinity Cathedral (1100 Sumter
Street) is one of the South's finest examples of ecclesiastical Gothic
continuously shows selections from the museum's extensive
folklife, history, modern art, and science. A popular on gallery Southern here
Revival architecture. The structure survived the burning of the city
in 1865. It has old-fashioned box pews, hand-carved choir stalls, a
marble baptismal font designed by Hiram Powers, and a ceiling with
associate of science in nursing at Beaufort in cooperation with Beaufort Technical
cember 1807. North Hall (later De Saussure College) was completed in 1809.
College and at Sumter with Sumter Area Technical College and associate of
Thomas Cooper (BDAE) was president from 1820 to 1834. Robert Woodward
science in general commerce and in secretarial science at Lancaster and Union
Barnwell served as president from 1835 to 1841 and again from 1866 to 1873.
and in criminal justice at Lancaster.
The College of Engineering was established in 1848. College Hall was built in
University of South Carolina-Beaufort had more than 700 students and a full-
1855. Cadet companies were organized in 1861, and the college was closed in
time faculty of 17 in the 1980s at a five-building campus that had been the site
June 1862 when the entire student body volunteered for service in the Confederate
of the former Beaufort College. Student activities include the Student Government
army. The college buildings were used as a Confederate military hospital during
Association, an honor society, and a student newspaper. University of South
the rest of the Civil War. The Union Army took possession of the college
Carolina-Lancaster had more than 700 students and a full-time faculty of 34 on
buildings on May 25, 1865. Maximilian LaBorde, head of the school from 1861
a four-building campus. Among fifteen student organizations are the Student
to 1865, was credited with saving the college from destruction during the military
Government Association, No Name Communicator weekly newspaper, and
campaign of William Tecumseh Sherman.
Excalibur/Synthesis yearbook and magazine. University of South Carolina-
The institution was reopened as the University of South Carolina in 1865.
Salkehatchie enrolled more than 700 students and had a full-time faculty of 34.
Schools of Law and Medicine were established. Admission of a black student
There are seven buildings on the Allendale campus located on three separate
in 1873 led to resignation of the faculty; the school was reorganized and reopened
sites. The thirteen student organizations include the Student Government
with restrictions imposed on admission of black students. A normal school was
Association, an honor society, and Salkehatchie Literary Magazine. There is an
opened in Rutledge Hall. Continued conflict led to the college being closed again
intercollegiate baseball team. The University of South Carolina-Sumter enrolled
in 1877. It was opened as the South Carolina College of Agriculture and Mechanic
more than 1,200 students and had a full-time faculty of 43. The University of
Arts in October 1880 with William Porcher Miles as president (1880-1882). He
South Carolina-Union had more than 300 students and a full-time faculty of 14.
was succeeded by John McLaren McBryde (1882-1891) and James Woodrow
It is located on a nine-acre campus with six buildings. Among student organizations
(1891-1897). The Law School was established in 1884. The college was re-
is the Student Government Association, a student newspaper, and a yearbook.
chartered in 1906 as the University of South Carolina. Samuel Chiles Mitchell
The university system conducts the bachelor of arts in interdisciplinary studies
(BDAE) was president from 1908 to 1913; he was succeeded by William Spenser
degree program, which permits students to earn all but fifteen credits in the two-
Currell (1914-1922). The Students' Army Training Corps was conducted on the
year colleges and in correspondence, television, or independent studies. Extension
campus during World War I. The College of Education was established in 1906,
classes and graduate courses are conducted at the two-year campuses. The two-
the School of Commerce in 1919, and the College of Journalism in 1923. Leonard
year campuses are administered by deans. Thomas Franklin Jones, Jr., president
Theodore Baker (1931-1936) and James Rion McKissick (1936-1944) directed
of the University of South Carolina from 1962, became the first president of the
the university during the Great Depression and World War II. Naval V-5 and
system in 1964; he also served as chancellor of the Columbia campus from 1964
V-12 programs were conducted on the campus during World War II.
to 1974. A twenty-member board of trustees governs the system; it is comprised
The School of Nursing was instituted in 1957. A regional campus system was
of representatives from each of the state's sixteen judicial districts and four ex
organized in 1957 with opening of the first extension center in Florence, South
Carolina. Additional branch campuses were established at Conway (1959) and
officio members: the governor, state superintendent of education, and the chairmen
of the state senate and house committees on education. The board selects the
Aiken (1961), South Carolina. The Conway branch had been organized as Caro-
lina Coastal Junior College in 1954 in affiliation with the College at Charleston.*
president of the system, who also serves as president of the University of South
In 1958 the College of Charleston discontinued the affiliation, and in 1959 the junior
Carolina at Columbia. James Bowker Holderman has been president of the system
and of the University of South Carolina at Columbia since 1977.
college chose to become a regional campus of the university. The Aiken campus was
initiated in 1961 as a two-year branch. Thomas Franklin Jones, Jr., served the longest
South Carolina, University of. The Horseshoe, Columbia, South Carolina
term as president from 1962 to 1974. In 1964 the university was reorganized as the
29208 (803) 777-3101. The South Carolina legislature granted a charter for
University of South Carolina System, the president of the university also serving as
South Carolina College at Columbia, South Carolina, on December 19, 1801.
president of the system. The School of Medicine was opened in 1977. South Carolina
A twenty-four-acre site was acquired, and South Building (later Rutledge Col-
College was reestablished as the honors college in 1978.
lege) was constructed in 1803. Jonathan Maxcy (BDAE) was appointed the first
On the 216-acre main campus are more than 130 buildings, including South
president in 1804; he served until his death on June 4, 1820. The college was
Caroliniana Library (1840), World War Memorial building, Old Observatory,
opened on January 10, 1805, to nine students with a faculty of two. The first
Osborne Administration Building, Sloan College art building, Barnwell College
degrees were conferred on one student in 1806 and five male students in De-
psychology building, Humanities Classroom Building, Rutledge College Chapel,
Medical Sciences Building, Peabody College of Education, Carolina Coliseum
master of arts degrees. The College of Humanities and Social Sciences confers
(1968), Law Center (1973), Sumwalt College of Engineering, Gambrell Audito-
bachelor of arts, science, fine arts, music, media arts, and arts in interdisciplinary
rium (1976), Russell House student center (1976), Earth and Water Sciences
studies; master of arts; master of public administration; and doctor of philosophy
building (1981), Jones Physical Sciences Center, Coker Life Sciences building
degrees. The College of Journalism grants bachelor of arts in journalism, master
(1976), Thomas Cooper Library (1976), Callcott Social Sciences Center, Booker
of arts, and master of mass communication degrees. Located at the college are the
T. Washington Medical Center, Soloman Blatt Physical Education Center (1970),
South Carolina Press Association, South Carolina Broadcasters Association, South
32 student residence halls, and 4 apartment house complexes. The School of Med-
Carolina Scholastic Press Association, South Carolina Scholastic Broadcasters
icine facilities are located at the Veterans Administration Medical Center. The
Association, and Southern Interscholastic Press Association. The College of
university maintains the R. G. Bell Camp recreation facility thirteen miles south
Nursing offers bachelor of science in nursing, master of nursing, and associate in
of the campus. Among graduates were Christopher Gustavus Memminger (BDAE);
science in nursing degrees.
Confederate army generals Wade Hampton, Maxcy Gregg, and Thomas M. Lo-
The College of Pharmacy awards bachelor of science in pharmacy and master
gan; governors George McDuffie, John Peter Richardson, Robert E. McNair, and
of science degrees. The doctor of philosophy degree is offered jointly with the
John C. West; Cardinal Joseph Bernardin; U.S. Senator Frederick Hollings; and
Medical University of South Carolina.* The College of Science and Mathematics
industrialist John E. Swearingen. Among graduates who served on the faculty was
confers bachelor of science, science in chemistry, and science in medical tech-
Newton Edwards (BDAE); other faculty members included Edward Southey Joynes
nology; master of arts, mathematics, and science; and doctor of philosophy de-
(BDAE) and Francis Lieber (BDAE).
grees. The master of arts in teaching and interdisciplinary master of arts in teaching
University of South Carolina is a public, coeducational, residential and com-
degrees are offered in cooperation with the College of Education. The College of
muter university operating on the semester academic calendar with two summer
Librarianship grants master of librarianship and specialist in librarianship de-
sessions. In the 1980s there were more than 17,000 full-time and 8,000 part-time
students with a full-time faculty of 980 and a part-time faculty of 265. The uni-
grees. There is a joint master of arts/master of librarianship degrees program with
versity is organized into colleges of Applied Professional Sciences, Business
the Department of English. The College of Social Work offers the master of social
Administration, Criminal Justice, Education, Engineering, Health, Humanities and
work degree. The Law School awards the juris doctor degree. There are joint juris
doctor/master of business administration, accountancy, arts in economics, and
Social Sciences, Journalism, Nursing, Pharmacy, Science and Mathematics, Li-
brarianship, and Social Work; Law School; School of Medicine; Graduate School;
public administration degrees programs. Law student organizations include the
and South Carolina College. The College of Applied Professional Sciences offers
Student Bar Association, two law fraternities, and an honor society. Students pub-
bachelor of arts in interdisciplinary studies, science, and science in interdiscipli-
lish the South Carolina Law Review. The school conducts institutes of Law and
nary studies and associate in science degrees. It includes a Hotel, Restaurant and
Education, Criminal Justice, Legal History, and Continuing Legal Education.
Tourism Administration program. The College of Business Administration awards
The Medical School confers doctor of medicine and doctor of philosophy de-
bachelor of science in business administration; master of business administration,
grees. Affiliated with the school are Richland Memorial Hospital, William S. Hall
science, and accountancy; and doctor of philosophy degrees. It conducts the Charles
Psychiatric Institute, and W.J.B. Dorn Veterans Administration Medical Center.
E. Daniel Center for Management Education and the Bureau of Business and Eco-
South Carolina College conducts honors programs for the colleges of Humanities
nomic Research. The College of Criminal Justice confers bachelor of science and
and Social Sciences and Science and Mathematics; it awards the
master of criminal justice degrees.
baccalaurens artium et scientiae (bachelor of arts and science) degree. The
Degrees granted by the College of Education are bachelor of arts in education,
university conducts the Belle W. Baruch Institute for Marine Biology and Coastal
science in education, and music education; master of arts, education, and arts in
Research, Bureau of Governmental Research and Service, Center for Industrial
teaching; interdisciplinary master of arts in teaching; education specialist; doctor
Research, Earth Sciences and Resources Institute, Institute of Archeology and
of education; and doctor of philosophy. It publishes the University of South Car-
Anthropology, Institute of International Studies, Social Problems Research In-
olina Education Report. The College of Engineering offers bachelor of science in
stitute, and Institute for Southern Studies. It operates the University of South
engineering, master of engineering, master of science, and doctor of philosophy
Carolina Press. The university participates with Winthrop College* in the Uni-
degrees. The College of Health is organized into the School of Public Health and
versity Affiliated Facilities Program to improve the quality of life for the disabled
departments of Physical Education and Communicative Disorders. It awards
and handicapped. It is a member of the National Student Exchange program.
bachelor of science in health education, arts in health education, and science in
Students may enroll in Air Force, Army, and Naval Reserve Officers' Training
physical education; master of science, audiology, speech pathology, education,
Corps program. Among more than 250 student organizations are the Student
arts in teaching, public health, and science in public health; and interdisciplinary
Government, professional associations, Phi Beta Kappa (1926). and 12 other
honor societies, 18 social fraternities, and 12 social sororities. Students publish
Student Government, professional associations, and special interest groups. Stu-
the Gamecock triweekly student newspaper, the Garnet and Black yearbook,
dents publish the Hoof student newspaper and Broken Ink literary magazine. The
and Portfolio student magazine and operate WUSC-FM radio station. The uni-
college participates in men's baseball and golf, women's volleyball, and men's
versity is a member of the Metropolitan Collegiate Athletic Conference and
and women's basketball. The Gregg-Graniteville Library has more than 78,000
participates in men's football, track, cross-country, baseball, and soccer; wom-
volumes. The college is accredited by the Southern Association of Colleges and
en's softball and volleyball; and men's and women's basketball, golf, tennis,
Schools. Robert E. Alexander became chancellor in 1983.
and swimming. The Thomas Cooper, Business, Law, Map, Medical, Music,
REFERENCE: Frankie H. Cubbedge, University of South Carolina-Aiken.
and South Caroliniana libraries have more than 1.9 million volumes. The uni-
South Carolina Coastal Carolina College, University of. Post Office Box
versity is accredited by the Southern Association of Colleges and Schools. James
1954, Conway, South Carolina 29526 (803) 347-3161. On July 23, 1954, a
Bowker Holderman has been president since 1977.
group of citizens of Horry County, South Carolina, met in the county library to
REFERENCES: John A. Bernardin, Jr., University of South Carolina; Daniel Walker
Hollis, University of South Carolina, 2 vols. (Columbia: University of South Carolina
discuss the need for a local college. The group formed the Coastal Education
Press, 1951 and 1956).
Foundation on August 6, 1954, and Coastal Carolina Junior College was opened
South Carolina-Aiken, University of. 171 University Parkway, Aiken, South
on September 23, 1954, with 53 students under E. J. Woodhouse (1954-1955).
Carolina 29801 (803) 648-6851. The South Carolina legislature granted authority
The college was affiliated with the College of Charleston* as a branch campus
with classes conducted in the Conway High School. The College of Charleston
to the University of South Carolina to establish a two-year, off-campus branch
discontinued the affiliation in 1958. On August 1, 1959, the college signed a
campus at Aiken, South Carolina, in 1961. In September 1961 the Aiken Center
was opened in Banksia, a renovated mansion in Aiken, with 139 students and
contract as a two-year regional college of the University of South Carolina.*
a faculty of 3, including Christopher S. Sharpe as director (1961-1963). He was
Edward Marion Singleton became director of the school on July 1, 1963; he
succeeded by William Cecil Casper in 1963 who became chancellor in 1969 and
served until 1983. The college was moved in September 1963 into a new admin-
served until 1983. In 1964 the college became a part of the University of South
istration/classroom building on a 185-acre site that had been donated by Bur-
Carolina System. The campus was moved to a new 100-acre site in 1972 where
roughs Timber Company and the International Paper Company. In 1964 the
the Classroom/Administration Building was completed. In 1973 the offering of
college became a part of the University of South Carolina System. In 1972 the
junior level courses was approved, and in 1975 senior level courses and granting
South Carolina General Assembly granted the college the right to add a third
of baccalaureate degree programs were approved. In September 1976 the campus
year when enrollment reached 700 and a fourth year at 1,000 students; the third
was granted academic autonomy, and the first bachelor's degrees were awarded
year was added in 1973 and the fourth in 1974. The first bachelor's degrees
in May 1977. The college gained regional accreditation in 1977. On the 144-
were awarded in 1974. On the campus are seven buildings: Administrative
acre campus are the Administration/Classroom Building (1972), Gregg-Granite-
Building (1963), Williams-Brice physical education and nursing building (1972),
ville Library (1975), Student Activities Center (1977), Classroom Building (1978),
Academic Building (1974), William A. Kimbel Library/Classroom Building
and Supply and Maintenance Center (1979).
(1977), College Center (1978), Fine Arts Building (1979), Wheelwright Per-
University of South Carolina-Aiken is a public, coeducational, commuter
forming Arts Center (1981), and Science Building (1982).
college operating on the semester academic calendar with two summer sessions.
University of South Carolina Coastal Carolina College is a public, coeduca-
In the 1980s there were 1,140 full-time and 600 part-time students with a full-
tional, commuter, liberal arts college. It operates on the semester academic
time faculty of 80 and a part-time faculty of 50. The college is organized into
calendar and conducts summer sessions. In the 1980s there were 2,300 students
divisions of Arts and Letters; Business Administration and Economics; Educa-
and a faculty of about 115. The college is organized into schools of Business
tion; Mathematics, Computer Science and Engineering; Natural Sciences; Nurs-
Administration; Health, Physical Education, and Recreation; Humanities; Math-
ing; and Social and Behavioral Sciences. Degrees offered are bachelor of arts,
ematics, Computer Science, and Statistics; Nursing; Science; Social and Behav-
science, and interdisciplinary studies; associate of arts; associate of science; and
ioral Sciences; and Teacher Education. Degrees offered are bachelor of science
associate in science in technical nursing. The Office of Continuing Education
in business administration, science in physical education, arts, science, arts in
offers a variety of noncrediti courses and workshops. The Graduate Regional
education, and science in education; associate in arts; and associate in science
Studies Office provides credit toward graduate degrees offered by the University
in nursing. The School of Science operates the M/S Coastal research vessel. It
of South Carolina* at Columbia. Students may enroll in Reserve Officers' Train-
maintains a close relationship with the University of South Carolina's Belle W.
ing Corps programs at the University of South Carolina (Naval) and at Augusta
Baruch Marine Field Laboratory at nearby Georgetown, South Carolina. Among
Colleget (Army). There are more than fifty student organizations, including the
forty student organizations are the Student Government Association, five honor