Law

[1791]  Wilhelm von Humboldt,  The Limits of State Action, Liberty Fund, Indianapolis, 1993

-  "... its laws [the laws of the State] ... must always be few in number, and simple and general in their nature." (p. 63)

-  "In no case, then, should prohibitive laws be enacted when the advantage or disadvantage refers only to the State itself. Again, it is not enough to justify such restrictions that an action should imply damage to another person; it must, at the same time, encroach upon his rights. Right, then, is never infringed except when someone is deprived of a part of what properly belongs to him, or of his personal freedom, without his consent or against his will. But when, on the contrary, there occurs no such deprivation - when one individual does not overstep the boundary of another's right, then, whatever disadvantage may accrue to the latter, there is no diminution of rights." (p. 87)

-  "All the principles I have hitherto attempted to establish presuppose men to have the full use of their mature powers of understanding. For they are all grounded on the conviction that the man who thinks and acts for himself should never be robbed of the power of voluntarily deciding on all that concerns himself, according to the results of his deliberations." (p. 127)

 

[1835]  Alexis de Tocqueville,  De la Démocratie en Amérique, vol. I, Flammarion, Paris, 1981

-  "Ce que les légistes aiment par-dessus toutes choses, c'est la vie de l'ordre, et la plus grande garantie de l'ordre est l'autorité. Il ne faut pas d'ailleurs oublier que, s'ils prisent la liberté, ils placent en général la légalité bien au-dessus d'elle; ils craignent moins la tyrannie que l'arbitraire, et pourvue que le législateur se charge lui-même d'enlever aux hommes leur indépendance, ils sont à peu près contents." (p. 365)

 

[1840]  Alexis de Tocqueville,  De la Démocratie en Amérique, vol. II, Flammarion, Paris, 1981

-  "Le genre humaine éprouve des besoins permanents et généraux, qui ont fait naître des lois morales à l'inobservance desquelles tous les hommes ont naturellement attaché, en tous lieux et en tous temps, l'idée du blâme et de la honte. Ils ont appelé faire mal s'y soustraire, fair bien s'y soumettre." (p. 286)

-  "Après l'idée d'un pouvoir unique et central, celle qui se présente le plus spontanément à l'esprit des hommes, dans les siècles d'égalité, est l'idée d'une législation uniforme." (p. 355)

-  "Nos pères étaient toujours prêts à abuser de cette idée, que les droits particuliers sont respectables, et nous sommes naturellement portés à exagérer cette autre, que l'intérêt d'un individu doit toujours plier devant l'intérêt de plusieurs." (p. 396)

-  "Fixer au pouvoir social des limites étendues, mais visibles et immobiles; donner aux particuliers de certain droits et leur garantir la jouissance incontestée de ces droits; conserver à l'individu le peu d'indépendance, de force, d'originalité qui lui restent; le relever à côté de la société et le soutenir en face d'elle: tel me paraît être le premier objet du législateur dans l'âge où nous entrons." (p. 396)

 

[1849]  Henry David Thoreau,  Civil Disobedience, The Riverside Press, Boston, 1960

-  "The only obligation which I have a moral to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience. Law never made men a whit more just; and by means of their respect for it, even the well-disposed are daily made the agents of injustice." (p. 236)

-  "Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than evil."
  "If [the injustice] ... is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn." (pp. 242-243)

-  "Under a government which imprisons any unjustly, the true place for a just man is also a prison." (p. 245)

 

[1863]  Pierre-Joseph Proudhon,  Du Principe Fédératif, Éditions Bossard, Paris, 1921

-  "Il répugne que la justice soit considérée comme un attribut de l'autorité centrale ou fédérale; elle ne peut être qu'une délégation faite par les citoyens à l'autorité municipale, tout au plus provinciale. La justice est l'attribut de l'homme, qu'aucun raison d'État ne doit en dépouiller." (p. 119)

 

[1906]  Piotr Kropotkin,  The Conquest of Bread, Elephant Editions, London, 1990

-  "'Many are the laws producing criminals!' was said long ago." (p. 153)

 

[1943-1944]  George Orwell,  Animal Farm, Penguin, Harmondsworth, 1966

-  "Are the Seven Commandments the same as they used to be, Benjamin?"
"For once Benjamin consented to break his rule, and he read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran :
ALL ANIMALS ARE EQUAL BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS."

 

[1945]  Bertrand de Jouvenel, On Power : its nature and the history of its growth (Du pouvoir : histoire naturelle de sa croissance), Liberty Press, Indianapolis, 1993

-  "A mere juggling with meanings has brought the wheel full cycle to the dictum which so disgusted our philosophers: 'Whatever pleases the prince shall have force of law.' The prince has changed - that is all." (p. 275)

-  "... if law comes merely to reflect the caprices of the people, or of some body to which the legislative authority has been delegated, or of a faction which controls that body, then obedience to the laws means in effect subjection to the inconstant, uncertain, unknown, arbitrary will of men who give this will the form of law." (p. 275)

-  "The life of democracies has been marked by a growth in the precariousness of laws."
  "The citizen has now no longer a fixed and protected right, for justice has become the servant of changing laws. He is no longer safeguarded against rulers, when their aggression are backed by laws which they have made to suit themselves. The hurt which a new law may inflict or the advantages which it may confer are now on such a scale that any change in the law tends to induce in the citizen a mood of total fear or total hope. As the only way to subdue the legislative authority, which is now one with the executive, is by means of a well-organized faction, factions are for ever gaining in cohesion and violence." "These factions are states within the state." (p. 308)

-  "Beyond all question, the supremacy of law should be the great and central theme of all political science. But, make no mistake about it, the necessary condition of this supremacy is the existence of a law older than the state, to which it is mentor. For if law is anything which Power elaborates, how can it ever be to it an hindrance, a guide, or a judge?" (p. 334)

-  "Nothing could be clearer than that : each of us has its rights, which are called subjective rights, and these live and meet in an objective law - the elaboration of a moral code which is over all and which Power must both respect and make respected." (p. 335)

-  "... the mounting flood of modern laws does not create law. What do they mirror, these laws, but the pressure of interests, the fancifulness of opinions, the violence of passions? When they are the work of a Power which has become, with its every growth, more enervated by the strife of factions, their confusion makes them ludicrous. When they issue from a Power which is in the grip of one brutal hand, their planned iniquity makes them hateful. The only respect which they either get or deserve is that which force procures them." (p. 341)

 

[1950]  Alex Comfort, Authority and Delinquency in the Modern State. A criminological approach to the problem of power, Routledge & Kegan Paul, London, 1950

-  "... history is full of unsuccessful attempts to repress particular forms of conduct by law. Granted a sufficient incentive, and an absence of public condemnation of the prohibited action, severity of penalty has little to do with the outcome of such attempts. Laws which run counter to accepted public standards, or which prohibit actions which the public regards neutrally, are hardly ever enforceable. The laws is, it seems, only effective in supplementing the mores of the community in which it exists, not in forming them." "... the suppression of gangsterism in the United States was possible largely because the social conditions which produced the supply of gangsters did not recur in the same form." (p. 74)

-  "Older laws to some extent crystallized the general public will - modern laws are less able to do so, since the public will is less definite, and the opportunities for expressing it socially are curtailed. For the first time in history laws are effectively 'made' by the state, without evoking any very marked response in the internal standards of the individual." (p. 75)

-  "No society, however utopian, is likely to remove altogether the causes of delinquency. We can, however, reject elements in society which we recognize as favouring them. The mechanism of restraint which operates most effectively is one which centralized institutional societies undermine - the interaction of public opinion and introjected social standards." (p. 101)

 

[1951]  Albert Camus,  L'homme révolté, Gallimard, Paris, 1951

-  "Hors des lois, dit Saint-Just, tout est stérile et mort. C'est la république romaine, formelle et légaliste. On sait la passion de Saint-Just et des ses contemporaines pour l'antiquité romaine." (p. 155)

-  "Hegel remarque, par exemple, que l'espace de temps qui va d'Auguste à Alexandre Sévère (235 après J.C.) est celui de la plus grande science du droit, mais aussi celui de la tyrannie la plus implacable." (p. 168)

 

[1951]  Alessandro Passerin d'Entrèves,  Natural Law, Hutchinson University Library, London, 1967

-  "... of laws there are different sorts. There is the law of the State, which expresses the interest of one particular community (ius civile). There is a law of nations (ius gentium), which men have devised for their mutual intercourse. But there is also a law which expresses a higher and more permanent standard. It is the law of nature (ius naturale), which corresponds to 'that which is always good and equitable (bonum et equum)'." (p. 19)

-  "'True law is right reason in agreement with Nature.' This famous passage from Cicero's Republic  clearly sets forth the doctrine of the law of nature which had been elaborated by the Stoics. Mankind is a universal community or cosmopolis. Law is its expression. Being based upon the common nature of men, it is truly universal." (pp. 20-21)

-  "The notion of natural law clearly refers to that contrast between 'nature' and convention which played so great a part in Greek philosophy and in Greek political thought." (p. 22)

-  According to the theory of natural law "the emphasis is shifted from ius quia iussum to ius quia iustum, from the form of the law to its content. And the content of the law is an ethical value. The relation between law and morals is the crux of the whole theory." " If law is not merely a command, if it does not only proceed from the will, law is the outcome of reason. Natural law is a plea for reasonableness in action." (p. 78)

-  "To the question quid ius?  the theorists of natural law unanimously answered ius quia iustum. Thus the doctrine of natural law is in fact nothing but an assertion that law is a part of ethics." (pp. 115-116)

-  "... how could he [the jurist] deny the close links which make modern legal positivism a typical outcome of nineteenth century State worship?" (p. 119)

 

[1953]  Robert A. Nisbet,  Community & Power, (formerly : The Quest for Community), Oxford University Press, New York, 1962

-  "The laws which ruled men's lives were the customs of their trade, locality, or estate and not the positive law of a legislator; and the whole sum of English parliamentary legislation for the whole Middle Ages is less in bulk than that of the single reign of Henry VIII." (p. 110)

 

[1957]  Ayn Rand,  Atlas Shrugged, Signet Books, New York, 1957

-  "'Do you really think that we want those laws to be observed?' said Dr. Ferris. 'We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There is no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well,  when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash it on guilt." (p. 411)

 

[1958]  Robert Aron et alii,  L'ère des fédérations, Plon, Paris, 1958

-  "Un jour, Vychinski répliqua au général Catroux, alors ambassadeur de France à Moscou, qui se plaignait que les femmes russes mariées à des Français ne pussent rejoindre leur mari : - « C'est la loi. » - « Inhumaine, en ce cas », dit l'ambassadeur. Alors, le ministre soviétique:  «La loi n'est pas faite pour protéger l'individu contre l'Etat, mais pour protéger l'Etat contre l'individu»." (p. 47)

 

[1961]  Bruno Leoni,  Freedom and the Law, Liberty Fund, Indianapolis, 1991

-  "Legislation appears today to be a quick, rational, and far-reaching remedy against every kind of evil or inconvenience, as compared with, say, judicial decisions, the settlement of disputes by private arbiters, conventions, customs, and similar kinds of spontaneous adjustments on the part of individuals. A fact that almost always goes unnoticed is that a remedy by way of legislation may be too quick to be efficacious, too unpredictably far-reaching to be wholly beneficial, and too directly connected with the contingent views and interests of a handful of people (the legislators), whoever they may be, to be, in fact, a remedy for all concerned. Even when all this is noticed, the criticism is usually directed against particular statutes rather than against legislation as such, and a new remedy is always looked for in "better" statutes instead of in something altogether different from legislation." (p. 7)

-  "Individuals ... seem to have accepted in principle once and for all a system whereby a handful of people whom they rarely know personally are able to decide what everybody must do, and this within very vaguely defined limits or practically without limits at all." (p. 9)

-  "If one values individual freedom of action and decision, one cannot avoid the conclusion that there must be something wrong with the whole system." (p. 10)

-  "Too many vested interests and too many prejudices are obviously ready to defend the inflation of the legislative process in contemporary society. However, unless I am wrong, everybody will be confronted sooner or later with the problem of a resulting situation that seems to promise nothing but perpetual unrest and general oppression." (p. 15)

-  "No public opinion polls, no referenda, no consultations would really put the legislators in a position to determine these rules, any more than a similar procedure could put the directors of a planned economy in a position to discover the total demand and supply of all commodities and services." (p. 20)

-  "In fact, what we are often confronted with today is nothing less than a potential legal war of all against all, carried on by way of legislation and representation." (p. 21)

-  "Although Greece could be described to a certain extent by historians as a country with a written law, it is doubtful that this was true of ancient Rome. We probably are so used to thinking of the Roman legal system in terms of Justinian's Corpus Juris, that is, in terms of a written law book, that we fail to realize how Roman law actually worked. A large part of the Roman rules of law was not due to any legislative process whatever. Private Roman law, which the Romans called jus civile, was kept practically beyond the reach of legislators during most of the long history of then Roman Republic and the Empire." "Statutory law for the Romans was mainly constitutional law or administrative law (and also criminal law), only indirectly relating to the private life and private business of the citizens." (pp. 81-82)

-  "Thus the Romans had a law sufficiently certain to enable citizens freely and confidently to make plans for the future, and this without being a written law at all, that is, without being a series of precisely worded rules comparable to those of a written statute. The Roman jurist was a sort of a scientist: the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concerning their plants or their production. Hence, private Roman law was something to be described or to be discovered, not something to be enacted - a world of things that were there, forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will. This did not mean absence of change, but it certainly meant that nobody went to bed at night making his plans on the basis of a present rule only to get up the next morning and find that the rule had been overturned by a legislative innovation.
The Romans accepted and applied a concept of the certainty of the law that could be described as meaning that the law was never to be subjected to sudden and unpredictable changes. Moreover the law was never to be submitted, as a rule, to the arbitrary will or to the arbitrary power of any legislative assembly or of any one person, including senators or other prominent magistrates of the state. This is the long-run concept or, if you prefer, the Roman concept of the certainty of the law." (pp. 83-84)

-  "When changes occurred, they were recognized by the jurists as having already happened in their environment rather than being introduced by the jurists themselves." (p. 93)

-  "We have become increasingly accustomed to considering law-making as a matter that concerns the legislative assemblies rather than ordinary men in the street and, besides, as something that can be done according to the personal ideas of certain individuals provided that they are in an official position to do so. The fact that the process of lawmaking is, or was, essentially a private affair concerning millions of people through dozen of generations and stretching across several centuries goes almost unnoticed today even among the educated elite." (pp. 87-88)

-  "... the more we manage to reduce the large area occupied at present by group decisions in politics and in the law, with all their paraphernalia of elections, legislation, and so on, the more we shall succeed in establishing a state of affairs similar to that which prevails in the domain of language, of common law, of the free market, of fashion, of customs, etc. where all individual choices adjust themselves to one another and no individual choice is ever overruled." (p. 130)

 

[1964]  Vance Packard,  The Naked Society, Longmans, London, 1964

-  "Actual physical invasion of the home by law officers and administrative officials without proper search warrants have been happening with uncomfortable frequency, and the laws and courts decisions offer the citizen who objects little protection. In fact he may land in jail for blocking such entries." (p. 164)

 

[1967]  Alessandro Passerin d'Entrèves,  The Notion of the State, Clarendon Press, Oxford, 1967

-  "The State is force, but qualified force : force exercised 'in the name of the law'." The State "is a force exercised in accordance with the law, and in accordance with a law that is obligatory because it is a law laid down by the State. We are in a vicious circle ..." (p. 3)

-  "In the words of a famous maxim, which has a curious history behind it, a rule that affects all must be accepted by all : quod omnes tangit ab omnibus approbetur." (p. 90)

-  "... the International Commission of Jurists, in the Congress it held in New Delhi, agreed to define the rule of law as 'the realization of the appropriate conditions for the development of human dignity'." (p. 145)

 

[1983]  Eugène Enriquez,  De la Horde à l'État. Essai de psychanalyse du lien social, Gallimard, Paris, 1983

-  "... la loi (le droit) n'est pas l'expression de la vertu ou d'un principe moral ou une émanation du vouloir des dieux ou de Dieu, elle n'est pas que la concrétisation de la violence." (pp. 173-174)

-  "Les lois expriment toujours la domination d'un groupe sur un autre." (p. 177)