Law

"To talk about law and collective memory is almost immediately to conjure images of the show trial where individual rights and truth were sacrificed in the service of political goals. Mark Osiel notes that acts asserting legal rights or officially stigmatizing their violation have often become a focal point for the collective memory of whole nations. These acts often become secular rites of commemoration. As such, they consolidate shared memories with increasing deliberateness and sophistication. These events are both “real” and “staged.” In this regard, they seem to problematize the very distinction between true and false representations of reality."

"In the classic, liberal conception, justice requires impartial adjudication of claims and accusations. The sole question with which law should concern itself is whether, according to the evidence presented and the rules of proof, someone “did” what they were accused of doing or some event did or did not happen. How the result serves particular collective memories is an illegitimate consideration, the introduction of which may distort those values. Playing our larger issues in culture and politics through the trial seems, if we take the liberal view seriously, a misuse of the judicial process. But the relationship of law and collective memory need not simply be discussed in terms of these normative concerns, namely whether it is right intentionally to use legal processes in the effort to create or vindicate collective memory. We might also approach the relationship between law and collective memory in a more descriptive vein and ask how and where law remembers as well as how and where it helps us remember."

"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."

"“Legal documents . . . are written to be preserved and consulted . . . . The form and syntax of a legal document, whether from the twelfth century or the twentieth, reflect the form and syntax of other written documents” (Fentress and Wickham, Social Memory, 9). Footnote 61, p.12"

"Law memorializes not just in its archival activities, but in acts that give particular meanings to our past. In every legal act there is an invitation to remember; in the testimony of the witnesses at the trial, in the instructions a judge gives to a jury, in particular interpretive theories, and in the monumental buildings that house our courts as well as our prisons, there is an insistent call to remember."

"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?"

"The essays in “History, Memory, and the Law” deploy a wide range of theories in diverse contexts to show law’s role in commemoration and the ways it constructs its own history. Yet each illuminates the limits of law as a site of memory and as a reader and interpreter of history. Each also highlights it flexibility, responsiveness, and adaptability. No memory, no matter how important or powerful it would seem to be, reliably can be preserved in and through legal decisions and institutions. No memory, no matter how powerful or important it would seem to be, reliably can make its presence felt to open up, to correct, or to control law. And similarly, the history that law constructs, as well as the techniques used to construct, cannot ensure a certain outcome. Law’s history and its hermeneutics are neither linear nor immune to improvisations, inventions, and ingeniously artful readings. To study history and memory in law, then, is to be reminded of law’s almost inexhaustible capacity to be, and do, many complex and contradictory things, all the while denying the contradictions and plausibly proclaiming its “formal existence.”"

"No man can come into a British Court of justice to seek the assistance of the law who founds his claim upon a contravention of the British laws."

"Reading, maketh a full man, conference a ready man, and writing an exact man; — and, therefore, if a man write little, he had need have a great memory; if he confer little, he had need have a present wit; and if he read little, he had need have much cunning to seem to know that he doth not."

"We may appeal to the experience of every sensible lawyer, whether anything can be more hazardous or discouraging than the usual entrance on the study of the law."

"Law grows, and though the principles of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times. Some persons may call this retrogression, I call it progression of human opinion."

"I cannot say the law was ever a hard mistress to me: and she did not allow me long to languish in idleness, nor ever suffer me to be without hope. But, of course, I had many idle days, and I was rather fond of note-taking as a very instructive practice, whenever the case was an interesting one, and I found great benefit from it when the facility of taking an accurate and full note rapidly became of the greatest importance in the course of my after life at the Bar and on the Bench."

"It is my province to lay down the law. Every lawyer knows that the law is the result of a great deal of learning."

"The truth is . . . the old feudal law existing in England … is only being broken down slowly by legislation and decisions of the Court, and . . . still exists to a very great extent."

"There is no positive law: Many things are bad by that, which otherwise were not."

"The law does not consist in particular instances, though it is explained by particular instances and rules, but the law consists of principles, which govern specific and individual cases, as they happen to arise."

"That whom he could not by the sword destroy, he might supplant by the law."

"Contemporaria expositio legis est optima, a contemporary exposition of a law, if there be any question about it, as our books tell us, is always the best, because the temper of the law-makers is then best known."

"I am sorry to think, that Englishmen should seem to excuse themselves by ignorance of the law, which all subjects are bound to know, and are born to have the benefit of."

"He had no right to take the law into his own hands."

"Every one must be supposed to be cognizant of a public law."

"Every man (who is of sufficient understanding to be responsible for his actions) is supposed to be cognizant of the law, as it is the rule by which every subject of the kingdom is to be governed, and therefore it is his business to know it."

"Every man must be taken to be cognizant of the law, otherwise there is no saying to what extent the excuse of ignorance may not be Law carried. It would be urged in almost every case."

"Ignorantia juris non excusat. The true meaning of that maxim is that parties cannot excuse themselves from liability from all civil or criminal consequences of their acts by alleging ignorance of the law, but there is no presumption that parties must be taken to know all the legal consequences of their acts, and especially where difficult questions of law, or of the practice of the Court are involved."

"A mere evasion, colour, disguise and device to evade the law."

"It has been said that ignorance of law is no excuse, but when the Court has a discretion the petitioner's ignorance of the law may be properly excused."

"Very happily, the more the law is looked into, the more it appears founded in equity, reason, and good sense."

"It being a maxim that three things are always favoured in law, life, liberty and dower."

"Lex est sanctio jiista jubens honesta et prohibens contraria. Lex est summa ratio. Ratio est anima legis. Nulla vetita ant turpia praesumuntur, sed contraria omnia legitima ataue honesta. The common lawe itselfe is nothing else but reason; which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and of experience, and not of every man's natural reason; for nemo nascitur artifem. This legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall heads, were united into one, yet could he not make such a law as the law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the gouvernment of this realme, as the old rule may be justly verified of it, neminem oportet esse sapientiorem legibus: no man, out of his own private reason, ought to be wiser than the law, which is the perfection of reason."

"It is true as a general proposition that knowledge of the law must be imputed to every person, but it would be too much to impute knowledge of this rule of equity; election as a question of intention of course implies knowledge."

"The laws alone are they that always speak with all persons, high or low, in one and the same impartial voice. The law knows no favourites."

"The law would be a strange science if it rested solely upon Cases; and if after so large an increase of Commerce, Arts and Circumstances accruing, we must go to the time of Rich. I. to find a Case and see what is law."

"It is far more important the law should be administered with absolute integrity, than that in this case or in that the law should be a good law or a bad one."

"Every object and purpose of justice is effectually answered, and every supposed inconvenience is effectually rebutted by the law as it stands."

"Sometimes rhetorical phrases are applied even by eminent Judges to propositions of law. In Lord Dungannon v. Smith Lord Brougham in eloquent language declared it as "one of the corner stones of the law," and I understand the Lord Chancellor in the same case to have considered the decision in Jee v. Audley to be "one of the landmarks.""

"I cannot help thinking that where a person appeals to the Law of England, he must take his remedy according to the Law of England to which he has appealed."

"The sparks of all the sciences in the world are raked up in the ashes of the law."

"The law is not apt to catch at actions."

"It was nobly said in another place (I heard it with pleasure, and thought it becoming the dignity of the person who pronounced it, and the place in which it was pronounced) "that the law is best applied, when it is subservient to the honesty of the case.""

"It is of very little consequence to the public to lay down definite rules of law, if you have indefinite rules of evidence."

"It has been sometimes said, communis error facit jus; but I say communis opinio is evidence of what the law is; not where it is an opinion merely floating and theoretical floating in the minds of persons but where it has been made the ground-work and substratum of practice."

"Judges could by their resolution alter the practice, but never the law."

"Law and conscience are one and the same."

"The law is for the protection of the weak more than the strong."

"The law protects nothing in that very respect, in which it is, at the same time, in the eye of the law, a crime."

"The law of England will not sanction what is inconsistent with humanity."

"The law rarely hesitates in declaring its own meaning; but the Judges are frequently puzzled to find out the meaning of others."

"The law does not act vindictively."

"The law has respect to human infirmity."

"We cannot judge of the fact, but the law upon the fact."