Conclusion: Revolution and Jurisprudence

The lawyer’s adage, “Hard cases make bad law,” seems especially apt during a revolution. Certainly revolutions produce hard cases, but do they result in bad law? Granted, the law coming out of partisan trials—the revolutionary tribunals set up in the shadow of a scaffold— is bad law, rather, the worst that law can offer because it is nonlaw.

Revolutions inevitably bring forth political trials. The law cannot be carried on in its ordinary fashion during the upheaval. Those persons caught up in the whirl and brought to trial will be tried by a court operating on an agenda of power as well as an agenda of positive law. But such trials can be within the rule of law. Lilburne’s trial, which we looked at in chapter 5, has no resemblance to the trials which followed the trial and execution of Louis in France, the tribunal of the 1793–1794 Reign of Terror which continued and intensified the September Massacres with a phoney legal cover. There the only agenda was power and the one aim expediency. Lilburne’s trial was a genuine contest. Was it, however, a contest on the legal agenda as well as the power agenda? As much as the judges might be favorable to the prosecution side and the army, Lilburne had the crowd and, more importantly, the jury on his side. The accused in partisan trials never wins. But if we are to remove Lilburne’s trial from the category of partisan trials because he won, we are only attending to the agenda of power. Is it possible to make a judgment about trials in revolutions on the agenda of law?

In all revolutions a stage is reached where the society has, in effect, dual governments.⁶⁴ At that point the revolutionaries have both enough power and authority to offer an alternative rule.

In revolutions, especially when a regime is put on trial, law is taken back to its origins in self-help. Self-help is the opposite of the rule of law. “The first business of the law, and more especially of the law of crime and tort,” William Holdsworth writes, “is to suppress self-help.”⁶⁶ Holdsworth finds that in fifth-century Salic law, for example, the effort was made to induce people to submit to the decisions of a court instead of seeking to help themselves to what they deemed their rights and continuing the feud cycle. Early law, especially early procedure, is a rigid series of rules. The rules would spell out, for instance, the precise conditions under which a creditor might help himself to the property of a debtor. Each party in a dispute would follow the rules to the letter. A mistake would be fatal.⁶⁷ The same seems to happen in revolutions. The dual governments cannot last for long.

The next step in moving a revolution from disorderly self-help to the rule of law is to engage a civil religion. Robespierre provides the best example, but the Puritans, Lenin (and, after his death, the cult of Lenin), and Khomeini all illustrate the same use of revolutionary symbols and myths of history. The new French calendar based on nature began the day after the abolition of the monarchy (September 22, 1792, or Vendemiaire 1st, Year I); a new trinity of Equality, Liberty, and Fraternity; the bonnet rouge for citizens; the Marseillaise; the gospel according to the new saint, J.-J. Rousseau; the martyr Marat; Jacques David’s art and festivals celebrating the revolution; and Robespierre’s massive Festival of the Supreme Being (June 8, 1794, or 20 Prairial, Year II).⁶⁹ All these changes served to create a civil religion to provide the new order and its rule of law with legitimacy.

A trial of the former regime, whether in the person of powerful figures near the sovereign, such as Strafford and Laud, or personified in the sovereign himself, provides a new regime with an incomparable opportunity to elicit support. In such a trial the old regime can be separated from the people. As employed in the trials of Strafford and Laud and then in the trial of Charles, treason came to mean the creation of a permanent division between the rulers and the people. Evidence can be presented that this separation is the fault of the accused, an enemy of the people, who is motivated by private-interest goals.

What gives legitimate title to any regime? This question brings to the surface three positions in jurisprudence. The composition of the rule of law, whether or not a given trial is a partisan trial, and what is legitimate in a regime depend on one of three sources of the law: tradition, a sovereign lawmaker, or natural law.⁷⁰ The view of the law profession generally is the first position, that the source of legitimate law is tradition. Judith Shklar calls this “legalism.” It involves, she maintains, the “tendency to think of law as �?there’ as a discrete entity, discernibly different from morals and politics,” and it means its adherents will fight to the death against arguments based on expediency, the public interest, or the social good.⁷¹ Charles Morisson, the deputy who called Louis XVI a “bloody monster” but nevertheless argued that he could not be tried because the penal code had no provision for such a trial, and the judges and lawyers who were active in the movement against Charles I but stayed away from the trial, represent this view of the law. For them the trial of the king was partisan. Likewise, from this viewpoint the Nuremberg trial was outside the rule of law because there was no international code outlawing “crimes against humanity” and, therefore, the indictment was new law and the trial ex post facto.

A second position on the question of legitimacy and the rule of law is that law has its source in the will of a lawmaker, a sovereign.

The third school of jurisprudence understands law as legitimate when it reflects a higher or natural law. Condorcet in the French Revolution presents a clear-cut example of this view, and it is represented in the English Revolution by Cromwell, Bradshaw, and Lilburne. The test of whether or not a given trial was within the rule of law or was partisan would depend upon whether certain translegal standards were satisfied. This is reflected in Justice Jackson’s position on the law at the Nuremberg trial and in the document which was an indirect result of that trial: The Universal Declaration of Human Rights.

Each of the three schools of jurisprudence can summon forth imposing authorities in its behalf. Edward Coke, William Blackstone, and, in our time, Oliver Wendell Holmes and Felix Frankfurter would defend the position that, however much we might disagree with those in power, the courts cannot be employed to bring them down unless the established law provides for it.

Roper: There is! God’s law!

More: Then God can arrest him.

Roper: Sophistication upon sophistication!

More: No, sheer simplicity. The law, Roper, the law. I know what’s legal not what’s right. And I’ll stick to what’s legal.

Roper: Then you set man’s law above God’s!

More: No, far below; but let me draw your attention to a fact—I’m not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester. I doubt if there’s a man alive who could follow me there, thank God.

Alice: While you talk, he’s gone!

More: And go he should, if he was the Devil himself, until he broke the law!

Roper: So now you’d give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you— where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.⁷³

No thinker has made a more compelling case for sovereignty than Thomas Hobbes, and his view that the source of law is the will of a sovereign lawmaker is the foundation for thinkers as diverse as Rousseau, Bentham, Marx, and Austin. Hobbes wrote during the English Revolution, rejecting the Puritan position as dangerous yet not accepting divine right. Hobbes begins with the circumstance of self-help, where each person seeks to enforce his/her natural right to do everything deemed necessary for self-defense. The solution is a covenant creating a sovereign who represents the public conscience of each person. The sovereign will is our will, and our obligation to obey is identical to our self-interest, i.e. our security.⁷⁴ To presume to judge the sovereign, then, is an absurdity, or, to say the same thing, those who judge are sovereign. Whoever denies the authority of the sovereign is no longer a citizen but an enemy of the commonwealth, beyond the law and relapsed into a condition of war.⁷⁵ This was the view that Charles I had of the Puritans and that St. Just and Robespierre had of Louis XVI.

A long tradition in political thought holds that the worst form of government is tyranny. The natural law view of jurisprudence is most definitely expressed by Thomas Aquinas. Tyrannical rule is unjust because, according to Aquinas, it is not directed to the common good. It does injury to the public welfare in doing benefit to the private welfare of the ruler. “Consequently the overthrowing of such government is not strictly sedition; except perhaps in the case that it is accompanied by such disorder that the community suffers greater harm from the consequent disturbances than it would from a continuance of the former rule.” The tyrant is responsible for sedition when he spreads discord among the people in the hope of controlling them more easily.⁷⁶ John Locke, approaching law from the liberal position of natural rights, sees government as created by trust and limited by human rights including the right of resistance to arbitrary rulers,⁷⁷ a position reflected in the Declaration of Independence.

This brings us back to the dilemma presented by hard cases. “Great cases like hard cases make bad law,” wrote Justice Oliver Wendell Holmes. “For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful and before which even well-settled principles of law will bend.”⁷⁸ Trials in revolutions are likely to be hard, and trials of regimes are of necessity both hard and great. What is a society to do when the hydraulic pressure of revolution forces such cases into the court? If such trials are the product of “immediate overwhelming interest which appeals to the feelings and distorts the judgment,” that is merely good evidence that the law and the courts cannot escape working amidst the conflicts of society and shaping history by making decisions.

Although in ordinary cases and most of the time, decisions in the law are not hard and great, when they are, even if such times are rare, our understanding of what the law is should go beyond what we might find in a law user’s manual, even if it does have the imposing title of Corpus Juris. If we assume that the rule of law is fully embraced by the maxim, “We are a government of laws, not men,” we ignore the responsibility decision makers have for interpreting the written and case law, applying the requirements of principle and justice, as well as facing the perversities of human nature and the ceaseless transformations of history, all of which are elements of the law itself. But—and this is the point—the rule of law is not a legalism, not a formula, not the same as the rules of law. While revolutions and the rule of law might begin as hostile foes, the rule of law can be strengthened by revolution. Revolutions do for law what the scientific revolutions—Copernican, Newtonian, and Einsteinian—have done for science. A new paradigm of legitimacy replaces the old one.⁷⁹ Political trials of regimes become the fulcrums in revolution by which the old dispensation in legitimate rule is pushed down and a new dispensation rises.