January 1, 1968 – Robert Cover on The Rule of Law and The Judiciary

On this date, Yale Law School published a review by Robert M. Cover, Assistant Professor-Designate at Columbia Law School, of the 1856 book Atrocious Judges: Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression by Richard Hildreth, a book “long out of print, over 110 years old and almost certainly not soon to be reissued in paperback.” But the review provided an opportunity for Professor Cover to interrogate the role of the judiciary in the face of immoral laws. He wrote:

We do not generally seek moral guidance from our judges. Their role is “legal” and our age is singularly unreceptive to natural law theories which could have any real weight in decision making. Yet, any man of the mid-twentieth century who is not wary of making secular law to the only standard for human conduct cannot have learned the brutal lessons of Hitler and Stalin. A century ago the abolitionists knew well the danger of obedience to, let alone enforcement of, law which violates all that is worthwhile in human community. Today the lesson ought to be clearer still. Therefore, if we can not expect moral guidance from our judges we must seek to attune them to the grave dangers of oppressive laws unthinkingly executed.”

What can the judge do, he asks. What ought the judge to do without succumbing to the temptation to exceed his legitimate authority? You can read his thoughts in the entire article here.



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