Not a Law at All: A Call for a Return to the Common Law Right to Resist Unlawful Arrest
![handle is hein.journals/swulr29 and id is 13 raw text is: NOT A LAW AT ALL*: A CALL FOR A
RETURN TO THE COMMON LAW RIGHT
TO RESIST UNLAWFUL ARREST
Craig Hemmens**
Daniel Levin***
When one by force subdues men, they do not submit to him
in heart. They submit, because their strength is not adequate
to resist.'
Who overcomes By force hath overcome but half his foe.'
I. INTRODUCTION
That no person may be deprived of liberty without due process of
law is one of the bedrock principles of the Anglo-American legal tra-
dition, important enough to be mentioned twice in the United States
Constitution.3 This broad principle underlies many important devel-
opments in American constitutional law and criminal procedure. The
Supreme Court expanded such due process protections as the right to
* Any law which violates the indefeasible rights of man is essentially unjust and
tyrannical; it is not a law at all. Maximilien Robespierre, Declaration of the Rights of Man,
Article 6, 24 April 1793.
** Assistant Professor, Department of Criminal Justice Administration, Academic Direc-
tor, Legal Assistant Program, Boise State University. B.A. University of North Carolina at
Chapel Hill, 1985; J.D. University of North Carolina Central University School of Law, 1988;
Ph.D. Sam Houston State University, 1998.
*** Assistant Professor, Department of Political Science, Boise State University. B.A. Uni-
versity of Wisconsin-Madison, 1985; M.A. University of North Carolina at Chapel Hill, 1988;
Ph.D. University of Wisconsin-Madison, 1993.
1. The Works of Mencius, in 2 THm CHINESE CLAssIcs 196 (James Legge trans., Oxford
University Press 1970) (emphasis in original).
2. John Milton, Paradise Lost, in FAMILIAR QUOTAlloNs 256 (John Bartlett ed., 1992).
3. The Fifth Amendment states in relevant part that [n]o person shall be deprived of life,
liberty, or property, without due process of law .... U.S. CONST. amend. V. The Fourteenth
Amendment states in relevant part that nor shall any State deprive any person of life, liberty, or
property, without due process of law .... U.S. CONsT, amend. XIV.](ViewImageLocal?handle=hein.journals/swulr29&div=8&collection=&method=preview&ext=.png&size=3)
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Not a Law at All: A Call for a Return to the Common Law Right to Resist Unlawful Arrest
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