4e7 Millennial Ideas 1000

Millennial Ideas
The Sun

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 Mystery Clock. Percy McClure and Erik Albertson

Independence of the Judiciary
1000 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 1000 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.
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

The greatest jurisprudential discovery of the 20th century: Law is uncertain.    The greatest jurisprudential discovery of the 21st century: Uncertainty is logical. - Peter Tillers

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 1000 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.
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

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