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Millennial Ideas
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Millennial
Ideas
With so much interest in the millennium, it seemed appropriate to
begin the new century with a look at legal documents and ideas that have
resonated and had significant impact over the past 1,000 years. And whom
better to ask what the most important jurisprudential ideas are than the
Cardozo faculty. The response to the query offered a range of ideas. Some
felt compelled to go back more than 1,000 years; others proposed more than
one choice; all responded with a crispness and intellectual acuity that
are marks of the faculty here. - Editors note
The
Great Equalizer
If
I were forced to choose the most important jurisprudential idea of the
millennium (as, in fact, I was), I would pick the Enlightenment notion
that the fundamental rights of individuals derive from their capacity for
rational judgment and action, as opposed to birth or status. The most powerful
aristocrat is entitled to no greater protection from the law than the lowliest
servant, for both are able to act in accordance with their conceptions
of the Good Life.
As a close second, I would choose alternate side of the street parking.
How did they ever think of that? If it had been up to me, I would have
had everybody move their cars from both sides of the street every day,
which, now that I think about it, probably wouldn't have worked. - Scott
Shapiro
Virtual
Legality
The
ineradicable issue of the turn of the millennium is that of the place of
the virtual, of the image, in the constitution of law. The problem is both
very old and cyber novel. It can be illustrated by an anecdote from Plutarch.
A young man of the Athenian court fell in love with a courtesan, Theogonis.
Desire consumed him, but she would not submit to his will. Eventually he
entered a contract with her. For a substantial sum of money, she would,
on a specified day, sleep with him once.
The night before the assigned day, he had a vivid dream. In that dream
he consummated his passion with Theogonis, "avec tous les delices." In
the morning he awoke cured of his desire. When he did not appear for his
assignment with Theogonis, she inquired as to the reason and on learning
it, went to court to sue for the money promised.
Her argument to the judge was that it was her image
that had cured the young man and so the money was due. The judge ordered
the young man to come to court with a purse of gold coins. The coins were
taken by the bailiff and poured into a brass bowl in the center of the
court. The judgment pronounced was that just as Theogonis's image had cured
the young man, so too the sight and sound of the money should be payment
enough. She appealed unsuccessfully on the ground that her image had satisfied
the young man, but the sight and sound of the money had only served to
whet her appetite.
The issue for the coming generations is that of how cyber law will
deal with the virtual equivalent of Plutarch's case. - Peter Goodrich
Mystery Clock. Percy McClure and Erik Albertson
Independence
of the Judiciary
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The
most important jurisprudential idea of the millennium is without a doubt
the independence of the judiciary. Without a judiciary independent of the
political branches of government, the second most important jurisprudential
idea of the millennium - the primacy of right over duty - would be impossible.
The modern social order would be impossible. The touch and taste of our
most intimate lives would cease to be as we know them. - Arthur Jacobson
Divide
& Disperse Power
It
should come as no surprise to anyone that I believe the most important
legal idea in the millennium was the Framer's idea to divide and disperse
power, and to extend that idea to the church-state relationship. - Marci
Hamilton
Four-Way
Tie
Magna
Carta (1215); English Bill of Rights (1689); US Constitution (1789); Code
Napoleon (1804). - Paul Verkuil
The
Rule of Law
The
most important jurisprudential idea that developed over the last 1,000
years is without doubt, in my view, the rule of law: commencing with the
Magna Carta (1215); continuing through the writings of philosophers such
as Bentham, Locke, Mill, Rousseau; incorporated in municipal constitutions,
such as the US Constitution; and most recently, in international instruments,
such as the Universal Declaration of Human Rights, the European Convention
on Human Rights, and the Covenant on Civil and Political Rights.
All these instruments have in common the principle
that individuals have legal rights that may not be denied by the governing
authority, be it king or democratically elected representatives. The idea
developed slowly over the course of the millennium; with the fall of communism
and the adoption of new constitutions by many states in the last decade,
the principle that there are fundamental human rights is now widely accepted.
Though there is some disagreement on the content of these rights and
much still needs to be done to transform theory into practice, the idea
itself is very powerful; it has had and will continue to have enormous
impact on humanity. - Malvina Halberstam
Ideas
Linking Three Millennnia
Some
of the most important humanitarian ideas in modern law date to the Stoics,
founded by Zeno in Athens in the third century B.C.E., followed by Cicero
(106-43 B.C.E.), but brought home in a modernly recognizable way by Hugo
Grotius (1583-1645). Grotius expounded a theory of natural law to contend
that a universal law could be derived from observation of the practices
and customs of different peoples. He argued that this universal law included
the equality of all people and that it is the social nature of people that
leads them to recognize the possessions of others (property), the fulfillment
of promises (contract), and the reparation of damages caused by fault (tort).
Apart from thus anticipating the curriculum taught
in the first year of US law schools throughout the 20th century, Grotius
contended in his famous treatise on war and peace (1625) that universal
law can and should bind all governments, thus founding the field of international
law (a name given to the field by Jeremy Bentham [1748-1832]). Grotius's
ideas led European and eventually most other nations to recognize a law
governing the condu
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ct of states, a law rooted in consent, custom, and precedent.
These natural law principles furnished the foundation for creating the
International Court of Justice and the United Nations in 1945 and the latter's
Universal Declaration of Human Rights in 1948, all of which emphasize the
social nature of people underlying Grotius's jurisprudence.
One can quarrel with the natural law underpinnings
of these ideas as well as with associated problems of defining the content
of those rights and means by which to define and enforce duties to protect
them (and, for that matter, with the structure of the first-year law school
curriculum). Yet even recognizing the content of these formulations as
simply idealistic moral codes, the nexus between the 2nd millennium and
the 3rd (and before) is sharpened as so many parts of the world increasingly
interlock, become interdependent, and find themselves all facing quite
similar problems, the tools to think about which lie ultimately in principles
of international law founded on these idealistic conceptions. - Lawrence
A. Cunningham
Daniel in the Lions' Den (1944). Morris Hirshfield.
How
about the Babylonians, the Greeks, and the Talmud?
I
can't say this millennium has produced very many really new jurisprudential
ideas. Lawyers, being members of a conservative and precedent-bound profession,
have spent most of the last 1,000 years refining and adapting ideas derived
from the previous two millennia, which were, jurisprudentially speaking,
far more innovative. Statutory codes, for example, were invented by the
Babylonians; democratic government, individual rights, and trial by jury
were all concepts known to the Athenian Greeks. Evidentiary rules and procedural
protections for criminal defendants can be found in the Talmud. The Romans
thought up corporations, commercial law, equity, and the legal profession.
The ancient Chinese developed concepts of fiduciary obligation and administrative
law. Tax law has apparently existed since the dawn of civilization.
Compared to all that, these last 1,000 years seem
rather dull from a jurisprudential point of view. The most outstanding
legal idea of this millennium? Probably the printing press. Printing has
provided lawyers with such helpful innovations as form contracts, regional
case reporters, and multi-volume treatises on civil procedure, as well
as the opportunity to attribute their mistakes to typographical errors.
- Chuck Yablon
Uncertainty
The
greatest jurisprudential discovery of the 20th century: Law is uncertain.
The greatest jurisprudential discovery of the 21st century: Uncertainty
is logical. - Peter Tillers
Constitutionalism
The
best legal invention of the last millennium was a written constitution,
binding as text on public officials and citizens alike. A constitution
construed and enforced as written brings great social gains. Its determinate
rules permit citizens to plan better for the future in their private enterprises
and provide them with guidance on influencing public policy. Its delineation
of governmental powers restrains public officials' arbitrary exactions.
Empowering citizens and constraining politicians generates wealth and so
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cial
harmony. Individuals gain more incentives both to produce goods and enter
into a web of beneficial relations when their wealth cannot be confiscated
and their relations cannot be disrupted by unpredictable action of government.
A written constitution is thus an invention that has promoted the happiness
of mankind as surely as our great material inventions from the wheel to
the microchip.
The Magna Carta was an important step to this novel
mechanism for binding rulers. But only with the framing of the United States
Constitution did man recommit himself to a specific and comprehensive set
of fixed rules that governed the structure of politics. The substantive
content of those rules - limiting the central government through federalism
and property rights - also promotes private empowerment and governmental
restraint as surely as its written form. Until our own founding, political
officials and their supporters had been reluctant to agree to such public
and transparent declarations, which would restrain their future political
opportunities to gain resources and power for themselves. Such officials
much preferred to make governmental decisions under opaque or easily manipulable
standards, such as the nebulous traditions of their polity or appeals to
moral or divine authority. In the Roman republic, augurs even occasionally
made key decisions of a constitutive dimension by consulting the entrails
of birds.
Unfortunately, as we end the millennium, our most
important legal theorists would like to jettison this great anchor of prosperity
and social harmony and go back to a jurisprudence in which public officials
- judges in this case - would again render decisions unconstrained by text.
Their various methods of constitutional construction, amusingly called
"non-interpretative" theories of interpretation, would again turn to precisely
the materials that proved so inadequate in restraining leaders in the past
- evolving traditions, moral principles as vague and subjective as long-discredited
theologies, and, even in some cases, consideration of their own feelings
(although they have not yet returned to consulting other species).
The explanation for the success of such theories
is much the same as that for the absence of written constitutions for thousands
of years after the invention of writing. Any restraint on using the government
for theft and status-seeking has powerful enemies - the politicians and
interest groups it frustrates. For the same reasons, theories that promise
to relax these restraints win many friends. Indeed, a sad paradox bedevils
constitutionalism: A good written constitution creates great wealth for
its citizens by restraining governmental expropriation, but the more wealth
it creates the more incentives it generates for hatching new schemes to
turn the government into an engine of expropriation.
Therefore, the most important current mission for
legal theory is to start a counterrevolution to reverse the decline of
constitutionalism. The movement would return fidelity to text as the centerpiece
of constitutional interpretation, and protections for economic freedom
and federalism as the twin touchstones of constitutional substance. If
such a counterrevolution succeeds against the odds, it is sure to provide
the best legal ideas for the next century and perhaps even for the next
millennium. - John McGinnis
Father time (c. 1910). Artist unknown.
The
Merchant of Venice
Like
most millennial developments, the one I am choosing has not as yet been
fully grasped, but I think it
dea
constitutes a great moment in the law from
the past 1,000 years. It occurs in the fourth act of Shakespeare's The
Merchant of Venice, first performed in 1596. Although the play is often
misconstrued as anti-Semitic, beginning in the late 19th century with the
German legal philosopher Von Jhering we saw that Shylock's position in
court has validity. Outsider groups, we learn, need to rely on a legal
system that adumbrates their rights and remains steadfast when insiders
(like Shakespeare's Christian characters) try to manipulate the law to
persecute them. As the millennium approaches, we have still not appreciated
(as Shakespeare did) how the majority's unspoken values inform seemingly
rational legal interpretations that do harm to less powerful individuals
and groups. - Richard Weisberg
480
B.C.E.
As
for the past: The history of the last millennium took an incalculable turn
1,500 years earlier when the Greeks defeated the Persians in a narrow channel
off the coast of Salamis in 480 B.C.E. The subsequent emergence of Greece
is unimaginable without that Greek naval victory, and trying to lift off
the pages of history Greece's influence on the West - jurisprudential and
otherwise - during the last 1,000 years is impossible. As for the future:
The realization of meaningful equality must be the hope. Assuring political
equality and diminishing economic inequality must be more than a dream.
But the fair measure of required equality is even more than this. Tolerance
and mutual respect are essential if peace and good will shall reign. -
David
Rudenstine
".
. . and the lion will lie down with the lamb."
Hicks's
"The Peaceable Kingdom" brings to mind the concluding paragraph of Grant
Gilmore's The Ages of American Law: "The better the society, the less law
there will be. In Heaven there will be no law, and the lion will lie down
with the lamb . . . . In Hell there will be nothing but law, and due process
will be meticulously observed." (cf. Madison: "If men were angels, no government
would be necessary.") Gilmore gives us two jurisprudential ideas. The first
is the most important: the rule of law - the idea that in hell due process
must be meticulously observed. The second is Hicks's truly "millennial"
concept of a society without law. Since people are, for better or worse,
not angels, that now will remain only a jurisprudential ideal, even in
the next millennium. - Michael Herz
Arbitrariness
I
was bowled over, as a law student, when I discovered that in western mining
law, the person who discovered an outcropping of a mineral owned the veins
below the surface, even if they ran under someone else's land. This was
so liberating. It taught me how arbitrary law really is, how wonderfully
based it is on local perceptions, local customs, prejudices, economic needs.
It helped me understand that the only way to take law seriously is not
to take it seriously. - Monroe Price
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