Inter arma enim silent leges
Encyclopedia
Inter arma enim silent leges is a Latin phrase meaning "For among [times of] arms, the laws fall mute," although it is more popularly rendered as "In times of war, the law falls silent." This maxim was likely first written in these words by Cicero
in his published oration Pro Milone
, although Cicero's actual wording was "Silent enim leges inter arma." Given Cicero's in depth knowledge of Greek political history, It can be argued that his notion on war and law was inspired by Thucydides opinion on the violent nature of war and the realistic approach in international relations.
At the time when Cicero used this phrase, mob violence was common. Armed gangs led by thuggish partisan leaders controlled the streets of Rome. Such leaders were nevertheless elected to high offices.
In the United States, President Lincoln's request for an opinion on the suspension of a basic right, to habeas corpus
, during the Civil War
resulted eventually in the decision, in Ex parte Merryman
(1861), of Chief Justice
Roger Taney, sitting as a judge of the United States Circuit Court
for the District
of Maryland
, that: "1. That the president [...] cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war [...] except in aid of the judicial authority, and subject to its control." The Supreme Court explicitly referred to this maxim within its ruling on the case Ex parte Milligan
, when it remarked that "these [amendments of the Bill of Rights], in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law."
Erosion of citizens' rights during World War II were upheld in the United States Supreme Court case Hirabayashi v. United States
(1943), which held that the application of curfews against members of a minority group were constitutional when the nation was at war with the country from which that group originated. Yasui v. United States
was a companion case decided the same day.
In more modern usage, it has become a watchword about the erosion of civil liberties during wartime. In the immediate wake of the terrorist attacks
of 11 September 2001, the maxim was aired and questioned in the American media with renewed force. The implication of the saying, as currently used, is in debate whether civil liberties and freedoms are in fact subservient to a wartime nation's duty of self-defense.
In 1998 Chief Justice
William Rehnquist
, in All the Laws but One: Civil Liberties in Wartime suggested that "the least justified of the curtailments of civil liberty" were unlikely to be accepted by the courts in wars of the future. "It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty," the chief justice wrote. "The laws will thus not be silent in time of war, but they will speak with a somewhat different voice."
An episode of The Practice
(6th season, episode 111, aired 9 December 2001) bearing the title "Inter Arma Silent Leges" examined this political concept in the context of the imprisonment of an Arab-American immigrant, three months after the terrorist attack of 9/11/2001.
In 2004, Justice
Antonin Scalia
used this phrase to decry the plurality decision in Hamdi v. Rumsfeld
which in his view, upheld the detention of a U.S. citizen as an enemy combatant, without charge or suspension of the habeas corpus
.
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
in his published oration Pro Milone
Pro Milone
The Pro Tito Annio Milone ad iudicem oratio is a speech made by Marcus Tullius Cicero on behalf of his friend Titus Annius Milo. Milo was accused of murdering his political enemy Publius Clodius Pulcher on the Via Appia...
, although Cicero's actual wording was "Silent enim leges inter arma." Given Cicero's in depth knowledge of Greek political history, It can be argued that his notion on war and law was inspired by Thucydides opinion on the violent nature of war and the realistic approach in international relations.
At the time when Cicero used this phrase, mob violence was common. Armed gangs led by thuggish partisan leaders controlled the streets of Rome. Such leaders were nevertheless elected to high offices.
In the United States, President Lincoln's request for an opinion on the suspension of a basic right, to habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, during the Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
resulted eventually in the decision, in Ex parte Merryman
Ex parte Merryman
Ex parte Merryman, 17 F. Cas. 144 , is a well-known U.S. federal court case which arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus"...
(1861), of Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Roger Taney, sitting as a judge of the United States Circuit Court
United States circuit court
The United States circuit courts were the original intermediate level courts of the United States federal court system. They were established by the Judiciary Act of 1789. They had trial court jurisdiction over civil suits of diversity jurisdiction and major federal crimes. They also had appellate...
for the District
United States federal judicial district
For purposes of the federal judicial system, Congress has divided the United States into judicial districts. There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico...
of Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
, that: "1. That the president [...] cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war [...] except in aid of the judicial authority, and subject to its control." The Supreme Court explicitly referred to this maxim within its ruling on the case Ex parte Milligan
Ex parte Milligan
Ex parte Milligan, , was a United States Supreme Court case that ruled that the application of military tribunals to citizens when civilian courts are still operating is unconstitutional. It was also controversial because it was one of the first cases after the end of the American Civil...
, when it remarked that "these [amendments of the Bill of Rights], in truth, are all peace provisions of the Constitution and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law."
Erosion of citizens' rights during World War II were upheld in the United States Supreme Court case Hirabayashi v. United States
Hirabayashi v. United States
Hirabayashi v. United States, 320 U.S. 81 , was a case in which the United States Supreme Court held that the application of curfews against members of a minority group were constitutional when the nation was at war with the country from which that group originated. Yasui v...
(1943), which held that the application of curfews against members of a minority group were constitutional when the nation was at war with the country from which that group originated. Yasui v. United States
Yasui v. United States
Yasui v. United States, 320 U.S. 115 was a United States Supreme Court case regarding the constitutionality of curfews used during World War II when they were applied to citizens of the United States. The case arose out of the implementation of Executive Order 9066 by the U.S...
was a companion case decided the same day.
In more modern usage, it has become a watchword about the erosion of civil liberties during wartime. In the immediate wake of the terrorist attacks
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
of 11 September 2001, the maxim was aired and questioned in the American media with renewed force. The implication of the saying, as currently used, is in debate whether civil liberties and freedoms are in fact subservient to a wartime nation's duty of self-defense.
In 1998 Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, in All the Laws but One: Civil Liberties in Wartime suggested that "the least justified of the curtailments of civil liberty" were unlikely to be accepted by the courts in wars of the future. "It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime. But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty," the chief justice wrote. "The laws will thus not be silent in time of war, but they will speak with a somewhat different voice."
An episode of The Practice
The Practice
The Practice is an American legal drama created by David E. Kelley centering on the partners and associates at a Boston law firm. Running for eight seasons from 1997 to 2004, the show won the Emmy in 1998 and 1999 for Best Drama Series, and spawned the successful and lighter spin-off series Boston...
(6th season, episode 111, aired 9 December 2001) bearing the title "Inter Arma Silent Leges" examined this political concept in the context of the imprisonment of an Arab-American immigrant, three months after the terrorist attack of 9/11/2001.
In 2004, Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
used this phrase to decry the plurality decision in Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
which in his view, upheld the detention of a U.S. citizen as an enemy combatant, without charge or suspension of the habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
.
"Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."
External links
- Cicero Pro Milone, at The Latin LibraryThe Latin LibraryThe Latin Library is a website that collects public domain Latin texts. The texts have been drawn from different sources. Many were originally scanned and formatted from texts in the Public Domain. Others have been downloaded from various sites on the Internet . Most of the recent texts have been...
- Declan McCullogh, "Why Liberty Suffers in Wartime", 24 September 2001
- Jerry Schwartz, AP, "Will the law be silent in a time of crisis?" 30 September 2001