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THE LAW: The Work of Justice

17 minute read

(See Cover) Green eyeshade under a crop of white hair, heavy shoulders bent over an ancient desk, the Harvard Law School’s Dean Emeritus Roscoe Pound wrote slowly, pouring the wisdom of his 87 years into his speech for Law Day, U.S.A.: “The law is the highest inheritance the sovereign people has, for without the law there would be no sovereign people and no inheritance.”

Three thousand miles away in San Francisco, Superior Court Judge Thomas Coakley looked thoughtfully at the ax-hewn pine timbers of the oldest courthouse in California, picked up a pencil and began to write: “In the days when this courthouse was built, the law was young and often painful on this frontier. We developed in 1854 what our pioneers recognized, as did their forebears in the East, that there must be a respect for the law.”

“A Chance to Celebrate.” In thousands of U.S. cities and towns, other men dedicated to the rule of law made plans for carrying their message this week into the nation’s courtrooms, classrooms and club meetings. On a train bound for Manhattan, Veteran Washington Attorney John Lord O’Brian opened his briefcase, took out the notes he had dictated for his Law Day speech. In St. Louis, a Negro law student named John Alexander Madison and a Negro policeman named Dred Scott Madison studied their parts for the Law Day re-enactment of the historic trial of their great-grandfather, Dred Scott.* In Seattle, Attorney Ford Elvidge was “digging into books I haven’t cracked in 40 years,” looking up English legal history for his Law Day speech. In Charleston, S.C., Veteran Lawyer Robert M. Figg pondered the difference in meaning be tween Communism’s May Day and the U.S.’s Law Day: “I take it this date of May 1 was not chosen naively. It gives us the chance to celebrate our own way of life, while some others who don’t believe in law are celebrating their way.” In Washington the President of the U.S. worked on the Law Day speech he would deliver to a nationwide television audience. And the Chief Justice and Attorney General of the U.S. made ready to travel to Philadelphia and Independence Hall. There, in liberty’s shrine on the eve of Law Day, Chief Justice Earl Warren and Attorney General William Rogers would join in nationally televised cere monies with the man who conceived the idea of Law Day: Charles Sylvanus Rhyne, president of the American Bar Association, prime mover in the campaign to get the U.S. this week to reaffirm its faith in the forces of law for peace.

That crusade began for Charles Rhyne last summer when he was installed in the A.B.A.’s presidency at the 80th anniversary convention in London. On Runnymede’s historic meadow, Rhyne dedicated the A.B.A.’s monument in commemoration of the sealing of Magna Carta. In Westminster Hall, Chief Justice Earl Warren and then Attorney General Herbert Brownell of the U.S., Lord Kilmuir, Lord High Chancellor of Great Britain, and the lawyers of two continents joined in a session that was, in itself, one of the great landmarks in the history of law (TIME, Aug. 5).

“Do What Is Right.” Since London, Charles Rhyne has traveled far and fast.

His nine months as president of the A.B.A. have taken him more than 100,000 miles to make 180 speeches in 38 states.

Wherever he goes, whenever he speaks, he returns to his theme: world peace through world law.

“In ancient times,” says Rhyne, “disputes between individuals were settled by brute strength in a fight. We have now largely progressed to a point where such person-v. -person disputes are settled un der the rule of law in the courts. But the rule of the jungle still largely prevails as the ultimate decider of disputes between nations. We must now progress to the point where the rule of law is applied in the courts to the disputes of nation v.


“For those who complain about the mystery of international law and lack of precedents, I suggest they reflect upon the famous jury charge of Andrew Jackson in his frontier court, and then reflect upon the growth of domestic law to meet the needs of our people. International law can do likewise.” No one knows better than Lawyer Rhyne that the rule of law cannot be imposed on peoples of the world until they have learned to understand and respect it. He knows too that understanding and respect begin at home. He originated the the idea of the first Law Day as an opportunity for lawyers and laymen, too long carried headlong in the seething, exciting torrent of codes and laws, to take reflective inventory, to study and ponder the law’s past and its present—from which it must derive its future.

“Sub Deo et Lege.” “Let all things be done decently and in order,” said St. Paul to the Corinthians, and from the beginning, man’s desperate struggling for order and justice has given force to the law. It gave force to the divinely inspired canons for human conduct of Moses; it gave force to the rule of the Hindu Manu, the Babylonian Hammurabi, the Roman Numa and the Greek Lycurgus; it gave force to the law as a human science in the Digest of Rome’s Emperor Justinian; it gave force to the common law of England, based on principle, shaped by experience, controlled by reason.

That force survived and beat down the political absolutism of the 17th and 18th centuries, which held that the law was no more than the will of the sovereign. Sir Edward Coke immortalized Bracton’s words—”Rex non debet esse sub homine, sed sub Deo et lege” (The king ought not to be under man, but under God and the law)—by flinging them in the furious face of absolutist James I. Then Coke fell to his knees in terror of losing his head—yet his doctrine lives today as the wellspring of the rule of law.

If Men Were Angels. The American Revolution was a rebellion not to overturn that rule of law but to sustain it. Of the 56 signers of the Declaration of Independence, 33 were lawyers; of the 55 delegates to the Constitutional Convention, 34 were lawyers, steeped in the natural law tradition of Aristotle, Cicero and Aquinas and in the English common law, dedicated to Locke’s proposition that sovereignty rests with the people, trained in the law by Coke’s Second Institute.

What they sought was liberty under law, no less and no more than justice in a moral universe. It is self-evident, wrote Deist Thomas Jefferson in the Declaration of Independence, that all men “are endowed by their Creator with certain unalienable rights,” that “among these are life, liberty and the pursuit of happiness.” and that “to secure these rights, Governments are instituted among men.”

The guiding principle of the Constitution was explained in The Federalist: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

In Marbury v. Madison 15 years later, Chief Justice John Marshall, like Coke unarmed except for the force of law, determined the right of judicial review over legislative decision, gave breath and blood to the American precedent as “a Government of laws and not of men.” So it was also that at the testing time of the Republic. Abraham Lincoln was a man who knew two basic books: the Bible and Blackstone’s commentaries on the law.

Principles & Rules. In his speech for Law Day 1958, Harvard’s Dean Pound makes the careful distinction between Law and laws. Says he: “The vital, the enduring part of the law is in principles —starting points for reasoning—not in rules. Principles remain relatively constant or develop along constant lines. Rules have relatively short lives. They do not develop; they are repealed and are superseded by other rules.”

Pound’s emphasis on principle marks something of a revolution in U.S. thought about the law. For many decades powerful opinion held that the law stemmed not from fundamental, rational principles but rather from the needs of the day. In the complexities of modern life it became fashionable to hold that principles are as changeable as those needs. The U.S. lawyer who best symbolized this view was Oliver Wendell Holmes—the Magnificent Yankee. No one had a greater love of the law than Holmes, who sat on the Supreme Court from 1902 to 1932. Although often in the minority, he was the inspiration of two generations of legal scholars who were in rebellion against a conservatism which used principle as a cover for old-fashioned rigidity, and in so doing too often placed chains upon change. Fundamental principle, sadly, became a casualty of the rebellion.

Now, serious thought in the law has come full circle. After the explosion of World War II, after a decade of cold war against Communism in the awesome dawn of the space age, the single, most dramatic development in the law of the U.S. is the return to the idea of first principles.

“Most Striking Fact.” “There is a distinct resurgence of the notion of morality in the law,” says Illinois’ Justice Walter Schaefer. Reports Indiana’s Professor Jerome Hall in the current Virginia Law Review: “The most striking fact about current national developments is the rise of natural law philosophies almost everywhere.” Writes Massachusetts’ U.S. District Judge Charles E. Wyzanski: “We live in a world where so many revolutions are occurring simultaneously that we clamor for stable principles to which we can anchor faith . . . And nowhere more than in the law is there a demand that we address ourselves to the subordination of the world of fact to the world of value. No one trained in the Anglo-American tradition, who paused to consider what ‘law’ was as administered by Hitler’s judges, or who has tried to grasp the essential theories of Soviet jurisprudence, could remain entirely satisfied with a positivist, empirical approach to his profession.”*

Says Mr. Justice Douglas: “In our scheme of things the rights of man are unalienable. They come from the Creator, not from a President, a legislature or a court.” And the U.S. Supreme Court recently affirmed the little-noticed but profoundly meaningful decision of a Pennsylvania court in a morals case, which said: “Our federal and state constitutions assume that the moral code which is part of God’s order in this world exists as the substance of society.”

Peculiarity & Commonality. Upon this understanding of the principle of law stand the A.B.A.’s Rhyne and many advocates of peace through a world rule of law. “Every human community that is regulated by laws and customs,” said the second-century-B.C. Roman jurist Gaius, “observes a system of law which in part is peculiar to itself and in part is common to mankind.” The peculiarities lie in the forms of laws and their enforcement. But the commonality—on which any system of world law must be built—rests in basic values, in the hunger of mankind for justice under the law and equality before it. “Peace is the work of justice,” says one advocate of a world rule of law. And the peaceful settlement of disputes could come through a system of law, founded on what is common to the law of all communities. Says Rhyne: “The vital need for an adequate international system of law remains the greatest gap in the legal structure of civilization.”

One approach toward filling that gap is through political organization, e.g., the United Nations. Yet the U.N., although valuable as a political forum, has been no conspicuous success in dispensing international justice, and its International Court of Justice has disposed of about one case a year for the last twelve years. An elaborate plan for strengthening the legal powers of the U.N. is found in World Peace Through World Law, a recently published book by Lawyers Grenville Clark and Louis B. Sohn. They urge revision of the U.N. Charter so as to provide for eventual total disarmament, an international police force, a vastly expanded system of world judicial tribunals.

There is, however, a growing body of opinion that the superstate idea, ignoring the brick-by-brick construction of any workable system of law, puts last things first. “May it not be,” asks Dean Pound, “that universal law must precede the universal state? There is abundant evidence that there may be a generally recognized and accepted body of principles to which men are expected to adhere in their relations with others … A world law may eventually lead to a world state when the world becomes prepared for it. But the essential thing is a world legal order—a world regime of due process of law.”

Rights Without Forms. The very nature of a world regime of due process assumes that it would not appear overnight as a towering edifice, that it would be built step by difficult step, that it would embrace the principles that are common to nations and compromise the forms of laws which are peculiar. Almost ignored behind the headlines of world crisis is the fact that the U.S. in recent years has taken major steps in contributing to a world legal order.

Since 1951, for example, the U.S. has negotiated more than 40 status-of-forces agreements granting friendly nations primary legal jurisdiction over American servicemen overseas who commit off-duty, off-base violations of law. The host nations guarantee each G.I. the basic rights of U.S. justice (e.g., a fair trial), but not the U.S. forms for securing those rights (e.g.., trial by jury). The status-of-forces agreements cover some 14,000 cases a year without bruising the U.S. sense of justice. They received dramatic confirmation last year in the case of Army Specialist Third Class William S. Girard, who killed a Japanese woman, was tried amid U.S. hue and hubbub in a Japanese court without a jury—and received the justice which was his unalienable right. In the status-of-forces agreements the U.S. thus respects the integrity of the laws of foreign countries without sacrifice to the basic principles of its own law.

In last year’s Suez crisis, the U.S., as rarely before in the history of nations, forsook the rule of power for the rule of law. At basic issue was Nasser’s seizure of the Suez Canal, and U.S. Government lawyers were by no means sure that Britain and France had the stronger legal case. When Britain and France fell back on force, the U.S. supported Egypt against longstanding allies. “There can be no peace without law,” said President Eisenhower. “And there could be no law if we were to invoke one code of international conduct for those who oppose us and another for our friends.” Thus was international sanction given to one of the principles that the U.S. regards as a basic, unalienable right: equality before the law.

Economic Magna Carta. But there are far more positive ways by which the rule of law can be extended to world affairs. Much of the turmoil in modern international relations comes from the fact that new nations, arising from the ruins of colonialism, require capital for their national development, but are afraid of the political dependence that goes with it. Lawyers ask: Why not an international agreement that sets down the political rights and the economic responsibilities of the borrowers? Last year, speaking at the International Industrial Development Conference in San Francisco. German Banker Hermann Abs issued a ringing call for economic order through law. Such order, said Abs, can be achieved only through “an international convention by which all contracting parties, both typical capital-export and capital-import countries, undertake to treat foreign capital and other foreign interests fairly and without discrimination.

“Such a convention, which I may call a Magna Carta for the protection of foreign interests, should provide for a special international court of arbitration, which would determine whether cases brought before it involve violation of principles. I could well imagine that in case of particularly serious violations, the court of arbitration will be entitled by the terms of the treaty to oblige the member countries to refuse new private or public loans and credits to the country in default.” The Universal Instinct. Through such efforts toward an orderly system that satisfies the principles held in common by most nations, a rule of law can be established that exerts its force even on the legal outlaws who this week celebrate May Day in their own way. More and more, as men of law become familiar with the legal systems of other nations, they find—often to their astonishment—that there are indeed basic common values. Impressive evidence of this fact is found by Assistant U.S. Attorney General George Cochran Doub through his experience in handling U.S. Government litigation in the courts of Western Europe. “We find that each legal principle we know seems available in the same or other terms in the civil law countries.” says Doub. “And so, may I suggest that no country has a monopoly upon right or equity, and that the instinct of justice is universal?”

To lead the way toward a rule of law, to discover the principles basic to all free men. to apply to those principles the lessons of experience and the guide of reason is the great task of lawyers. It was in that spirit and toward that end that the president of the American Bar Association conceived of Law Day, U.S.A. “The atomic and hydrogen bombs.” says Charles Rhyne, “have attuned the people of the world to an overwhelming desire for peace, which is probably stronger than any such desire in all history.

“Here a great opportunity will be won or lost—an opportunity to ensure peace under law. We lawyers must write the necessary legal machinery. To do this we must evaluate world law and develop new international legal machinery to maintain essential national sovereignty, yet provide for the peaceful settlement of disputes between nations under the rule of law.” So doing, the U.S. could build on the experience of the past and the possibilities of the present to ensure a peaceful future.

*The re-enactment was to be held in the same St. Louis courthouse in which the Dred Scott case was tried—it remains standing as a museum piece. The case actually began as a simple assault and battery action. Scott, a slave, was mistreated by his owner, eventually brought suit for his freedom and won a favorable verdict in the trial court. That verdict was reversed by the U.S. Supreme Court under Chief Justice Roger Taney, which held that because Scott was a slave he had no rights of citizenship, and therefore the courts lacked jurisdiction. *Said Jackson to a backwoods Tennessee jury: “Do what is right between these parties. That is what the law always means.” *Wyzanski also tells a story: “About 1915, Mr. Justice Holmes invited a then young U.S. district judge, Learned Hand, to accompany him as he rode toward the Capitol to sit on the Supreme Court of the U.S. As they approached their destination, the district judge left the carriage and, waving farewell, called out ‘Do justice, sir.’ Sharply he was summoned back. ‘Sonny, you don’t understand my job; it is to apply the law.'” Learned Hand clings still to the Holmesian tradition. Says he: “The aim of law is the maximum gratification of the nervous system of man.”

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