By Allan C. Hutchinson, Cambridge University Press, New York / Cambridge, 318 pages, $29.99
‘And I, my Lords, embody the law,” insists the “highly susceptible” Lord Chancellor in Gilbert & Sullivan’s Iolanthe. In Laughing at the Gods Professor Allan C. Hutchinson of Osgoode Hall Law School, York University, Toronto, presents studies of eight jurists, seven men and one woman, who may not have embodied the law but who, the author maintains, helped materially to shape and develop it.
The book begins by challenging a position taken by Chief Justice John G. Roberts. At his confirmation hearing before the Senate Judiciary Committee, Roberts asserted, “[J]udges are like umpires—umpires don’t make the rules; they apply them.” He added, “[I]t’s my job to call balls and strikes and not to pitch or bat.”
No, argues Hutchinson, “The analogy between judging and umpiring is misleading and inaccurate.” He continues, “[T]he judges are also very much part of the game; they play by as well as change the rules as they go along.” His book contains a wealth of material supporting that stand.
William Murray, Lord Mansfield, understandably heads the author’s list of those who helped fashion what we know as Anglo-American common law. Mansfield sat as Chief Justice of the Court of King’s Bench from 1756 to 1788. Hutchinson credits him with having gone far to bring the common law into tune with the times. In commercial law he “refused to be hidebound by fixed rules and instead incorporated the changing customs and practice of trade and commerce.” He also “did much to release the law of wills and estates from its medieval and highly formalistic origins.”
It was Mansfield’s refusal to let precedent stand in the way of reform that, in the author’s view, bolsters his claim to greatness. Mansfield, for example, anticipated by a full century the union of law and equity by daring to apply equitable principles to actions at law. In this and other ways, he “changed the common law and courts in a way that few others have been able to equal since.”
The book proceeds with expositions of the outlook and work of three Americans (John Marshall, Oliver Wendell Holmes and Thurgood Marshall), two more Britons, one Canadian and one South African. In each case the author sets forth the elements that went into his choice of that judge as one worthy of classification as great.
In his concluding chapter Hutchinson endeavors to specify and enumerate the criteria of judicial greatness. His individual analyses, however, have already made his standards clear. As this review has pointed out, a willingness to bend—even to disregard precedent in the interests of justice, common sense or both—counts high in that respect. Of Lord Alfred Thompson Denning, who served as Master of the Rolls from 1962 to 1982, the author says, “If an established precedent got in the way of justice, he would walk right over it, rather than take some circuitous or subtle route to avoid it.
Counting also, in the author’s opinion, is an ability to sympathize with the less favored members of society, particularly where that ability appears to arise out of some aspect of a judge’s earlier life. Praising the skill in legal analysis of James Atkin, who spent 16 years on the Judicial Committee of the House of Lords, the author says that Lord Atkin “put his methodology to work in the service of the ordinary person, especially the underdog.
Laughing at the Gods may not please those readers who support the current campaign to discourage or actually prohibit reliance on foreign precedents in U.S. cases. Time and again the book takes up fact situations and legal issues vividly parallel to those arising in our courts. In a case annulling the criminality of abortion, Justice Bertha Wilson, the first woman to sit on the Supreme Court of Canada, filed a concurring opinion (“judgment,” the author calls it, presumably in accordance with Canadian terminology), from which Hutchinson quotes at length. The opinion sets forth the point of view of a woman contemplating termination of a pregnancy. It strikes this reviewer as difficult to deny the relevance of her words to the controversy in this country between “pro-life” and “pro-choice” advocates, in and out of the courts.
The book’s omissions may puzzle some readers. Why, they may ask, do we see no chapters on, for example, Benjamin Cardozo, Learned Hand or Earl Warren, all of whom surely qualify as great? But this book does not purport to constitute a catalogue of great judges. The author offers it as a selection, by definition necessitating omissions, from a diversity of common-law jurisdictions made to illustrate a point, or in fact several points. In that purpose, he succeeds.
It was Holmes who, almost a century ago, derided the notion of the common law as “a brooding omnipresence in the sky.” Thanks to him and others, we, or at least most of us, recognize law as no more and no less than the creation of flesh-and-blood mortals. Laughing at the Gods names some of the best of those creators and recounts the part each of them played in that creation. Professor Hutchinson has given the profession a piece of worthwhile, instructive reading.
Walter Barthold is retired from the practice of law in New York City.