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法治的精神

热度 2已有 2933 次阅读1/12/2011 15:46 |个人分类:法治|系统分类:政治

法治的精神

南郭点评:“美国革命”其实并非共产党主张的那种所谓革命,而是属于几无破坏性,富有建设性的社会政治经济制度的进化。法国思想家芦棱的著作在美国人几乎无人问津,美国独立战争期间对美国人影响最大的乃是Sidney, Harrington and Locke等人的著作。美国人实质上是在英国社会政治经济体制基础上,坚持法治反对专断与尊重个人权利,强调保障人权,不断进行政治改良进化发展而成为今日自由宪政民主国家。法治精神是对抗专制暴政的最有力的武器之一。

 

 Rule of law not revolution

By Robert N. Wilkin [1]

 

 

   “ When we proclaim that we are revolutionaries and boast of our  revolutionary spirit, the author states, we play into the hands of the communists and add to the confusion of their Marxian dialectic and "upside-down language". There is error and confusion in the word "revolution"; history, semantics, logic and clear thinking suggest the use of some other word to characterize our country's purpose today.”[2]

 

     THE BOLSHEVIK  dictatorship is vigorously conducting a world revolution against all traditional forms of government and standards of politics, morality, religion and culture. When we proclaim that we are revolutionaries and boast of our revolutionary spirit we play into the hands of the Bolsheviks and add to the confusion of their Marxian dialectic and "upside- down language". Their revolution is wholly destructive and offers nothing to replace what they seek to destroy.What we are championing and defending is freedom under law, not dictatorship. The history and spirit of our institutions are constructive, not destructive.

 

   Newspapers reported that President Kennedy, before he left for his meeting with Soviet Premier Khrushchev, said: "I go to Vienna as the leader of the greatest revolutionary country on earth. Our knees do not tremble at the word 'revolution'. We believe in it." And William 0. Douglas, Associate Justice of the Supreme Court of the United States, wrote an article entitled. "The U. S. and the Revolutionary Spirit", published in Saturday Review, June 10, 1961, the first sentence of which was, "We Americans were born in revolution." The editorial statement at the beginning of the article said, "The United States has traditionally gloried in its revolutionary heritage."

 

   At once it must be clearly and emphatically stated that the President, the Justice and the editors were not intentionally favoring or supporting the communist revolution. The purpose of their statements was to convey our traditional sympathy for all oppressed peoples who struggle against tyranny and despotism. Loyal Americans would agree with the substance of their remarks. It is the purpose of this discussion merely to point out the error and confusion in the word "revolution". history, semantics, logic and clear thinking suggest the use of some term other than "revolution" to characterize our purpose today.

 

 War of Independence Was Not a Revolution

 

   Historians and political scientists of highest authority have explained repeatedly that our War for Independence was not a revolution but a continuance of the evolution of human rights that had been progressing for centuries in England. Historians have referred to England as a nation "marked by a sturdy sense of right". That sense of right and respect for law have marked the Anglo-Saxon race generally. It was owing to their inherited devotion to such principles that the American colonies separated themselves from the British Empire. The establishment of an independent nation in America was not a revolution in the Marxist sense, but a continued assertion of the convictions that had asserted themselves successfully in England. It is that same devotion to law against arbitrary will that continues to unite English-speaking people in the defense of human rights against the forms of absolutism which threaten them today.

 

   John Fiske, in The Critical Period of American History, in discussing the reforms of Colonial governments prior to the War of Independence, said, "except for expulsion of the royal and proprietary governors, the work had in no instance been revolutionary in its character". He said further:

 

     It was not so much that the American people gained an increase of freedom by their separation from England, as that they kept the freedom they had always enjoyed, that freedom which was the inalienable birthright of Englishmen, but which George III had foolishly sought to impair. The American Revolution was therefore in no respect destructive. It was the most conservative revolution known to history, thoroughly English in conception from beginning to end. It had no likeness whatever to the terrible popular convulsion which soon after took place in France. The mischievous doctrines of Rousseau had found few readers and fewer admirers among the Americans. The principles upon which their revolution was conducted were those of Sidney, Harrington and Locke. In remodelling the state governments, as in planning the union of the states, the precedents followed and the principles applied were almost purely English.

 

   The colonies, having been founded largely by men opposed to the imperious will of the King, continued their struggle for rights of Englishmen. The opposition in England to taxes imposed by the King became in America opposition to "taxation without representation". The sentiment in England against the despotic orders of the Star Chainher and High Commission was reasserted in the colonial Resolves "that all trials for any crime whatsoever should be within the Colony by known course of law". The arbitrary orders of the King in the colonies became an issue on both sides of the ocean. That the colonists were continuing the struggle for the supremacy of law is shown by the fact that they were championed on both sides of the Atlantic by the ablest lawyers. The rights of the colonists were defended in England by Sir Robert Walpole, Edmund Burke, William Pitt, Charles James Fox and others. In America the opposition was led by men who personified the spirit of the common law. They based their claims and arguments on the teachings of Coke, who had based his arguments against arbitrary usurpation of power on the teachings of Bracton. They insisted that the arbitrary acts of the Crown were against the Constitution of  England and therefore void.

 

 Word "Revolution" Is Harmful to Us

 

    When the King sent his soldiers to enforce his orders, the colonists took up arms against them. Those who bear arms in defense of lawful order are not revolutionaries. It is true that the efforts of the colonies for independence became known generally as the American Revolution. Justice Douglas regrets that after World War II "we lost our pride in 'revolution' as an American concept". We should regret, however, that that word was ever accepted as an American concept. It was not so harmful formerly, but today it puts us in a class with the Marxists.

 

   The President, in connection with his statements quoted above, said, "We believe in the progress of mankind-we believe in freedom." That belief is sustained by "government not of men, but of law". Justice Douglas stated that Australia, New Zealand and North America, during this century, have not been interested in revolution for themselves, "because their institutions usually had built-in procedures for change". A felicitous phrase to distinguish rule of law from despotic rule!

 

 He stated also that under Gandhi "India experienced an awakening that generated more power than tanks and artillery". India gained its independence without a revolution, and India retained Anglo-American jurisprudence as the law of the land. Its courts cite the decisions of English and American courts as authority for their decisions.

 

   Justice Douglas concedes that "We, as democrats, cannot become subversive in the communist style and form undergrounds within each nation, undergrounds bent on overthrow by force and violence." We therefore should not identify and degrade our cause by use of the word "revolution". We should not glamorize a word which Marxism has distorted in world opinion.

 

 The Communists' Ways Contrasted With Our Ways

   

The communist revolution in Russia overthrew the Kerensky government by force and violence. The communist dictators then, by subversion, force and violence, suppressed the free governments of all border states from Latvia to Hungary. Then they confiscated for their own use all the products of the labors of others. Now Cuba gives us a close-up view of what revolution is. In contrast consider the evolution, progress and prosperity that has obtained under governments of law, administered by representatives of the people chosen in free elections.

 

   Of course we are opposed to exploitation and oppression whether by imperialism, colonialism, communism or feudalism, political or economic. We also oppose corruption, dishonesty and theft which centuries ago was defined as harvesting where you have not sown. To the extent of our ability, we should unite with other free nations to prevent such abuses. Now that the world has become one community the rule of law should be established and maintained by a united effort. Officers and agencies of the United Nations should be given authority to maintain lawful order.

  

   We shall never, however, win "the struggle for men's minds" by the use of distorted, confusing or misleading words or "double talk". The acceptance of the challenge of our day requires a clear presentation of the issue; and that, in turn, requires exact diction.

 

   The Soviet leaders pander to and confuse the people with the jargon of Marxism, but enforce the fiat orders of dictatorship. We seek the word of truth and carry the torch of freedom. They browbeat their opponents with barbarisms and bludgeon their victims into slavery or death. We bear the sword of justice and champion lawful order and inalienable human rights. They pursue the destructive course of revolution and threaten the governments of other nations with the violence of rebellion. We champion lawful order for the world that humanity may pursue a constructive way of life.

 

   If we make our purpose and policy clear, people everywhere will be impelled by their innate social and moral nature to support our cause. The recent explosion of nuclear bombs by Russia demonstrates that the world crisis is between the in-laws and the out-laws.

 

 

 

 

 


[1] Robert N. Wilkin, Rule of Law Not Revolution, 48 A.B.A. J. (American Bar Association Journal)(1962)  pages 57 – 58.

Robert N. Wilkin, now retired, was appointed to the Bench of the United States District Court for the Northern District of Ohio in 1939. A former member of the Board of Editors of the Journal, he is the author of several books on jurisprudence and legal philosophy.

[2] Robert N. Wilkin, District Judge,  Northern District of Ohio-

 


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