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Benjamin Franklin   (January 17, 1706 – April 17, 1790)

“Laws too gentle are seldom obeyed; too severe, seldom executed.”

 

Portrait of Benjamin Franklin, 1785, by Joseph-Siffred Duplessis from the National Portrait Gallery

In addition to being a statesman/diplomat, inventor/scientist and founding father, Benjamin Franklin (1706-1790) was also a publisher. This quotation is one of many proverbs in his publication Poor Richards Almanac, issued annually from 1732 to 1758. This best-selling pamphlet in colonial America also contained weather, poems, puzzles, astrological/astronomical information and other items that made it a popular publication with the general public. The quotation, published in the 1756 Almanac, suggests the need for proportionality in sentencing and warns against extremes of punishment in society’s laws. It advises that penalties must be severe enough to deter people from the censured behavior, but not so severe that people are reluctant to enforce them. The quote is very similar to a statement by Lord Keeper Finch in 1742 in which he stated “In making of laws, it will import us to consider, That too many laws are a snare, too few are a weakness in the government; too gentle are seldom obeyed, too severe are as seldom executed…”   Most recently, the quote has been cited to lament attempts to greatly increase liability against company employees for massive environmental disasters rather than, perhaps more reasonably, focusing on disaster avoidance.

Joshua Fershee, Choosing a Better Path: The Misguided Appeal of Increased Criminal Liability After Deepwater Horizon, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 1 (2011), http://scholarship.law.wm.edu/wmelpr/vol36/iss1/2

 

 

Nelson Rolihlahla Mandela (born July 18, 1918)

Nelson Mandela reading the oath of office as he is sworn in as President of South Africa.

“Let there be justice for all.  Let there be peace for all.  Let there be work, bread, water and salt for all.  Let each know that, for each, the body, the mind and the soul have been freed to fulfill themselves.”

 

Nelson Mandela was born the son of the chief of the small village of Mvezo. As an adult, Mandela worked as a lawyer and became increasingly involved in the black majority’s struggle for equality and freedom, joining the African National Congress (ANC) in 1944. In 1948, the ruling National party passed legislation making apartheid the law of the land. In 1960, the government banned the ANC, spurring Mandela to propose and form a militant wing, for which he was sentenced to life in prison.

In 1990, after 27 years in prison, Mandela was freed and immediately set about resolving negotiations between the National government and the ANC, which ultimately set the stage for a true democratic government in South Africa. In 1993, Mandela and former President F.W. de Klerk won the Nobel Peace Prize.

These words were spoken by Mandela in his Presidential inauguration speech on May 10, 1994. Mandela was the first President in South African history to be elected through a fully represented vote, marking the official end of the apartheid government. In his speech, Mandela called for the people of South Africa to work together to rebuild the nation, and cautioned that no one could work alone and achieve success. Mandela was widely credited for harboring little bitterness for his time in prison and for actively bridging the gap between blacks and whites—never answering racism with racism.

Nelson Mandela, Presidential Inaugural Speech (May 10, 1994), in The Essential Nelson Mandela (Robin Malan ed., 1997).

 

 

Xunzi  (300 BCE – 230 BCE)

“Where laws exist, to carry them out; where they do not exist, to act in the spirit of precedent and analogy—this is the best way to hear proposals.

To show favoritism and partisan feeling and be without any constant principles—this is the worst you can do.  It is possible to have good laws and still have disorder in the state.  But to have a gentleman acting as ruler and disorder in the state—from ancient times to the present I have never heard of such a thing.  This is what the old text means when it says, “Order is born from the gentleman, disorder from the petty man.”

Image of Xunzi from a scroll by Deng Shiru from the Palace Museum, Beijing

 

Xun Kuang (荀況) (b. c. 300, China—d. c. 230 BCE), commonly referred to as Xunzi (“Master Xun”), was a classical Chinese Confucian philosopher born in the state of Zhao. He was eyewitness to the Warring States period of Chinese history, and the eventual decline of the Zhou dynasty, which had ruled China for more than 700 years.

Although Xunzi did initially adhere to his Confucian roots of philosophy, the influence of the politics, warfare, and assassinations during his lifetime helped develop Xunzi’s concept that human nature has an evil element, combined with a mentality bent on self-interest.  Xunzi asserted that this worldview was attained at birth, and consisted of instinctual drives which, if left to themselves, were anarchic and antisocial.  With this new assessment of human nature, Xunzi parted ways with the classical positivist Chinese masters such as Confucius and Mencius.

This quote, however, is a fine example of Xunxi’s later thoughts, which abandoned the complete hopelessness for human nature.  Xunzi stated that if “the nature of man is evil; his goodness is only acquired training.”  His writings, a book comprising 32 chapters simply know as Xunzi, applied his philosophy to the more practicable art of rulership.  The ruler, king, or gentleman, could overcome their innate evil nature, and rule justly, reasonably, and fairly, through reliance on education and “ritual action” to develop moral goodness.  Through the method described in the quote, a gentleman acting as ruler could develop into a disciplined and morally conscious human being.

 

 

Jonathan Swift  (November 30, 1667 – October 19, 1745)

“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

Portrait of Jonathan Swift by Charles Jervas from the National Portrait Gallery, London

 

Jonathan Swift is regarded as one of the English language’s most accomplished satirists. Swift poked merciless fun at the hypocrisies he saw in the religious, political, educational, and legal institutions of his time. A Tritical Essay Upon the Faculties of the Mind was first published in 1711.  The Tritical (meaning trite) Essay resembles the commonplace books (a compilation of facts and maxims) kept by young gentlemen in the 17th and 18th centuries.  In Swift’s hands, however, the commonplace book becomes a satirical treatment of all would-be scholars who exhibited “moral and intellectual laziness” and “relied on historical parallels as a substitute for objective appraisal of contemporary events”.

While some researchers posit that Swift included clichés that had lost their force through endless repetition, others believe that “the thrust of the parody is not against the opinions offered but against the manner of the offering.” Still others point out that Swift, in creating this random and unreadable collection of quips, is mimicking the theory, becoming popular at the time, of the random creation of the universe.

Inclusion of this quote here might be construed as a warning to those who would approach legal scholarly thought without the proper effort and discipline.  Or perhaps it is an admonition not to take ourselves too seriously.

Westfälische Wilhelms-University of Münster, http://www.anglistik.uni-muenster.de/imperia/md/content/englischesseminar/swift/tritical_essay_introduction.pdf.
James William Johnson, Swift’s Historical Outlook, Journal of British Studies, Vol. 4, No. 2 (May, 1965): p. 55.
Irvin Ehrenpreis, Four of Swift’s Sources, Modern Language Notes,  Vol. 70, No. 2 (Feb. 1955): p. 100.
Irene Samuel, Swift’s Reading of Plato, Studies in Philology, Vol. 73, No. 4 (Oct. 1976): p. 444.
Laura Jeanne Baudot, Looking at Nothing: Literary Vacuity in the Long Eighteenth Century, (November 2005) (Ph.D dissertation, Princeton University), via http://search.proquest.com.ezp-prod1.hul.harvard.edu/pqdtft/docview/305386297/1362C82B3964A9AEB8D/1?accountid=11311.

 

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