The Spirit of Moderation
August 16, 2019 § 2 Comments
From an address by Judge Learned Hand (1872-1961) at the proceedings of the 250th anniversary of the Supreme Judicial Court of Massachusetts, November, 1942:
And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of “right and wrong — between whose endless jar justice resides.” You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say.
What will be left of these principles? I do not know whether they will serve only as counsels; but this much I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where the spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon its courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens — real and not the factitious product of propaganda — which recognizes their common fate and their common aspirations — in a word, which has faith in the sacredness of the individual. If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilization, delicate and easily overrun by our sinful human nature; we may even now be witnessing their uprooting and disappearance until in the progress of the ages their seeds can once more find some friendly soil. But I am satisfied that they must have the vigor within themselves to withstand the winds and weather of an indifferent world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field, into the market-place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived.
Quoted in The Practical Cogitator, Charles P. Curtis, Jr. and Ferris Greenslet Eds., Houghton Mifflin 1962.
Note: The phrase “right and wrong — between whose endless jar justice resides” is from Shakespeare’s Troilus and Cressida: ““Force should be right; or rather, right and wrong, between whose endless jar justice resides, should lose their names, and so should justice too. Then everything includes itself in power, power into will, will into appetite;and appetite, an universal wolf, so doubly seconded with will and power, must make perforce an universal prey and at last eat up himself.”
The Better Chancery Practice Blog 
Observations from 1942 and could not be more timely.
Agreed!!