“In a community, the constitution of which provides for a legislator and a law, it is the concern of the legislator and of the laws given by him to ascertain the mediation through calculable and attainable rules and to prevent the terror of the direct and automatic enactment of values. That is a very complicated problem, indeed. One may understand why law-givers all along world history, from Lycurgus to Solon and Napoleon have been turned into mythical figures. In the highly industrialized nations of our times, with their provisions for the organization of the lives of the masses, the mediation would give rise to a new problem. Under the circumstances, there is no room for the law-giver, and so there is no substitute for him. At best, there is only a makeshift which sooner or later is turned into a scapegoat, due to the unthankful role it was given to play.
A jurist who interferes, and wants to become the direct executor of values should know what he is doing. He must recall the origins and the structure of values and dare not treat lightly the problem of the tyranny of values and of the unmediated enactment of values. He must attain a clear understanding of the modern philosophy of values before he decides to become valuator, revaluator, upgrader of values. As a value-carrier and value-sensitive person, he must do that before he goes on to proclaim the positings of a subjective, as well as objective, rank-order of values in the form of pronouncements with the force of law.”

"The Tyranny of Values" (1959)

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Carl Schmitt36

German jurist, political theorist and professor of law 1888–1985

Muhammad Asad book The Principles of State and Government in Islam

Source: The Principles of State and Government in Islam (1961), Chapter 1: The Issue Before Us, p 14

“The great end of all human industry, is the attainment of happiness. For this were arts invented, sciences cultivated, laws ordained, and societies modelled, by the most profound wisdom of patriots and legislators.”

David Hume book Essays, Moral, Political, and Literary

Part I, Essay 16: The Stoic
Essays, Moral, Political, and Literary (1741-2; 1748)

“We have had landlord rule longer, far longer than the life of the oldest man in this vast assembly, and I would ask you to look at the results of that rule. The landowners have had unlimited sway in Parliament and in the provinces. Abroad the history of our country is the history of war and rapine: at home, of debt, taxes, and rapine too. In all the great contests in which we have been engaged we have found that this ruling class have taken all the honours, while the people have taken all the scars. No sooner was the country freed from the horrible contest which was so long carried on with the Powers of Europe, than this law, by their partial legislation, was enacted—far more hostile to British interests than any combination of foreign powers has ever proved. We find them legislating corruptly: they pray daily that in their legislation they may discard all private ends and partial affections, and after prayers they sit down to make a law for the purpose of extorting from all the consumers of food a higher price than it is worth, that the extra price may find its way into the pockets of the proprietors of land, these proprietors being the very men by whom this infamous law is sustained…”

John Bright (1811–1889) British Radical and Liberal statesman

Speech in Covent Garden (19 December 1845), quoted in G. M. Trevelyan, The Life of John Bright (London: Constable, 1913), p. 142.
1840s

“The omnipotence of Parliament is for the British what for other nations is represented by the constitution, the declaration of independence and the law of human rights all rolled into one. That division of powers which was wrongly deduced from observation of Britain in the eighteenth century is unknown to Britain: just because we have no written constitution, the control of Parliament over both law and government has to be unlimited. In order for Britain to join the Community, the House of Commons has to be told, and to accept, that it will progressively lose its exclusive power to control legislation and government.”

Enoch Powell (1912–1998) British politician

Speech in Vaduz (15 January 1972), quoted in The Common Market: Renegotiate or Come Out (Elliot Right Way Books, 1973), pp. 30–31
1970s

“[T]he constitution controls any legislative act repugnant to it.... It is emphatically the province and duty of the judicial department to say what the law is.... So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.... Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions... It would be giving the legislature a practical and real omnipotence... The judicial power of the United States is extended to all cases arising under the constitution.”

John Marshall (1755–1835) fourth Chief Justice of the United States

5. U.S. (1 Cranch) 137
Marbury v. Madison (1803)

“The basic principal of this government is the will of the people. A system was devised by its founders which seemed to insure the means of ascertaining that will and of enacting it into legislation and supporting it through the administration of the law. This was to be accomplished by electing men to make, and men to execute the laws, who, would represent in the laws so made and executed the will of the people. This was the establishment of a representative government, where every man had equal voice, equal rights, and equal responsibilities. Have we such a government today? Or is this country fast coming to be dominated by forces that threaten the true principle of representative government?”

Robert M. La Follette Sr. (1855–1925) American politician

“The Danger Threatening Representative Government” Speech (1897) http://www.wisconsinhistory.org/pdfs/lessons/EDU-SpeechTranscript-SpeechesLaFollette-DangerThreatening.pdf

“There is no reason to doubt that this Court may fall into error, as may other branches of the Government. Nothing in the history or attitude of this Court should give rise to legislative embarrassment if, in the performance of its duty, a legislative body feels impelled to enact laws which may require the Court to reexamine its previous judgments or doctrine. [Footnote 52] The Court differs, however, from other branches of the Government in its ability to extricate itself from error. It can reconsider.”

Robert H. Jackson (1892–1954) American judge

Helvering v. Griffiths, 318 U.S. at 400-401 (1943).
Judicial opinions

“Education does have a great role to play in this period of transition. But it is not either education or legislation; it is both education and legislation. It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important also. It may be true that the law cannot change the heart, but it can restrain the heartless, and this is what we often so and we have to do in society through legislation. We must depend on religion and education to change bad internal attitudes, but we need legislation to control the external effects of those bad internal attitudes. And so there is a need for meaningful civil right legislation.”

Martin Luther King, Jr. (1929–1968) American clergyman, activist, and leader in the American Civil Rights Movement

Address at Cornell College, Mount Vernon, Iowa (15 October 1962) https://news.cornellcollege.edu/dr-martin-luther-kings-visit-to-cornell-college/; also quoted in Wall Street Journal (13 November 1962), Notable & Quotable , p. 18 Variant: It is true that behavior cannot be legislated, and legislation cannot make you love me, but legislation can restrain you from lynching me, and I think that is kind of important. Address at Finney Chapel, Oberlin College (22 October 1964), as reported in "When MLK came to Oberlin" by Cindy Leise, The Chronicle-Telegram (21 January 2008) 1960s

“Legitimation is the process by which a legislator is authorized to promulgate such a law as a norm.”

Jean-François Lyotard (1924–1998) French philosopher

Source: The Postmodern Condition: A Report on Knowledge (1977), p.8

“All students, members of the faculty, and public officials in both Mississippi and the Nation will be able, it is hoped, to return to their normal activities with full confidence in the integrity of American law. This is as it should be, for our Nation is founded on the principle that observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny. The law which we obey includes the final rulings of the courts, as well as the enactments of our legislative bodies. Even among law-abiding men few laws are universally loved, but they are uniformly respected and not resisted. Americans are free, in short, to disagree with the law but not to disobey it. For in a government of laws and not of men, no man, however prominent or powerful, and no mob however unruly or boisterous, is entitled to defy a court of law. If this country should ever reach the point where any man or group of men by force or threat of force could long defy the commands of our court and our Constitution, then no law would stand free from doubt, no judge would be sure of his writ, and no citizen would be safe from his neighbors.”

John F. Kennedy (1917–1963) 35th president of the United States of America

Radio and Television Report to the Nation on the Situation at the University of Mississippi (30 September 1962) http://www.jfklibrary.org/Research/Ready-Reference/JFK-Speeches/Radio-and-Television-Report-to-the-Nation-on-the-Situation-at-the-University-of-Mississippi.aspx 1962

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Carl Schmitt36

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