Are law and revolution on opposite ends of a seesaw?
When one is riding high, is the other down? Whether the ancien régime tries the revolutionaries or, after the revolution, is tried by them, to the defendants the judge represents not the law but merely the powers that be.
Yet to the prosecution, whether of the old or the new order, the legitimacy of the law is at stake in the trial of those who have not only “taken the law into their own hands” but have grabbed for much more: the authority to make law, substituting their power interest for law itself. Can this contradiction be resolved?Are the rule of law and revolution incompatible? They appear to operate from hostile premises: Law seems to begin with the assumption that justice results from following precedent, and revolutions seem to start from the idea that justice demands the destruction of precedent and the creation of a new order. This puts us face-to-face with the fundamental question of jurisprudence: What is law? If we examine several trials conducted during revolutions for what they say about the basic questions of the law, we can shed some light on this basic question.
The most difficult of all types of political trials is the trial of one regime by another. In such a hot crucible the elements of law and politics clearly separate. Every revolution, sooner or later, seems to initiate trials to discredit the regime they have triumphed over. The Gang of Four trial in China and the Iranian Tribunal are examples. But our own generation is always in a mist. We can see the past more clearly than the present. If we take certain seventeenth- and eighteenth-century trials, especially those of Charles I (1649) and Louis XVI (1792), we will have a better opportunity to understand the nature of political trials in revolutions than we would by attempting to be up to date with China or Iran.