Law

418 quotes found

"I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.The essence of our free Government is "leave to live by no man's leave, underneath the law" -- to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up."

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"The reason of a commandment, whether positive or negative, is clear, and its usefulness evident, if it directly tends to remove injustice, or to teach good conduct that furthers the well-being of society, or to impart a truth which ought to be believed either on its own merit or as being indispensable for facilitating the removal of injustice or the teaching of good morals. There is no occasion to ask for the object of such commandments; for no one can, e.g., be in doubt as to the reason why we have been commanded to believe that God is one; why we are forbidden to murder, steal, and to take vengeance, or to retaliate, or why we are commanded to love one another. But there are precepts concerning which people are in doubt, and of divided opinions, some believing they are mere commands, and serve no purpose whatever, whilst others believe that they serve a certain purpose, which, however is unknown to man. Such are those precepts which in their literal meaning do not seem to further any of the three above-named results: to impart some truth, to teach some moral, or to remove injustice. They do not seem to have any influence upon the well-being of the soul by imparting any truth, or upon the well-being of the body by suggesting such ways and rules as are useful in the government of a state, or in the management of a household. ... I will show that all these and similar laws must have some bearing upon one of the following three things, viz., the regulation of our opinions, or the improvement of our social relations, which implies two things, the removal of injustice, and the teaching of good morals."

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"In the present moment, as Nora reminds us, [[memory] is “above all archival. It relies on the materiality of the trace, the immediacy of the recording, the visibility of the image. . . . Even as traditional memory disappears, we feel obliged assiduously to collect remains, testimonies, documents, images, speeches, any visible signs of what has been.” Museums, monuments, and so on are today, Nora argues, the locations of memory, the sites to which collective memory is attached. If that is indeed the case, one might ask whether law itself might be one of what Nora calls “les lieux de memoire.” Here our interest is directed to the temporal dimension of legality, the way law stands in relation to the past, the present, and the future. Law in the modern era is, we believe, one of the most important of ur society’s technologies for preserving memory. Just as the use of precedent to legitimate legal decisions fixes law in a aprticular relation to the past, memory may be attached, or attach itself, to law and be preserved in and through law. Where this is the case, it serves as one way of orienting ourselves to the future. As Drucilla Cornell puts it: “Legal interpretation demands that we remember the future.” In that phrase, Cornell reminds us that there are, in fact, two audiences for every legal act, the audience of the present and the audience of the future. Law materializes memory in documents, transcripts, written opinions; it reenacts the past, both intentionally and unconsciously, and it is one place where the present speaks to the future through acts of commemoration."

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"The essays in “History, Memory and the Law” address this subject, each in its own distinctive voice. They present grounded examinations of particular problems, places, and practices rather than grand theories. In so doing they address the ways in which memory works in and through law, the sites of remembrance that law provides, the battles against forgetting that are fought in and around those sites. Here we attend to what Lucie White has labeled both the “epic” style of remembering the past, the “grand, monumental, Manichean style . . . that splits the world, morally, along temporal lines,” as well as to what she calls the “tragic” style of remembering. This style, White claims, “teases out the multiple, tangled, always partial threads that comprise the space where ‘civility’ has been enacted and resisted and reshaped.” This kind of remembering spurns “grand gestures.” It remembers in “grounded, gradual ways.” It makes the accomplishments of the past more hard fought, more tentative, more elusive, and more deeply intertwined with the moral horrors to which it insists we attend. The essays in this book also inquire about the way history is mobilized in legal decision making, the rhetorical techniques for marshaling and for overcoming precedent, and the different histories that are written in and through the legal process. Among the questions that they address are, How are the histories and memories created by law different by virtue of the site of their creation? Through what representational practices are the seeming continuities between past and present that are necessary to legitimize legal decisions constructed and preserved? Whose histories and memories “count” in law? What does history do to and for, law, and what does law do to history? Under what conditions do legal institutions, such as courts or prisons, becomes sites of memory?"

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