THE LAW: The Work of Justice

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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 They do not develop; they are repealed and are superseded by other rules."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.