Legal Commentary

I have been making my way through Philip Hamburger's truly magnificent book, Law and Judicial Duty.  There is a great deal in this book in the way of assiduously researched detail -- but many of the delicate ornaments and historical baubles are placed in the service of several broad themes; the sweep and significance of the book is very much more than the sum of its details, and it has much to say about the way in which we think about the role of the judge and the institution of "judicial review."  In my final post, I want to consider only one of these themes -- artifice, artificiality, and their relationship to law.

The ideal of judicial duty is very much, in Hamburger's telling, the product of the common lawyer's self-conscious effort -- perhaps strategy is even the right word -- to clothe the law in ritual and form.  Thus, in at least partial reaction to Cicero's naturalist aphorism, lex est ratio summa, insita in natura, Coke offered that the common law is "an artificial perfection of reason, gotten by long study, observation, and experience, and not by every mans naturall reason."  (129).

The very notion of "artificial perfection" may strike modern ears as rather dissonant.  Artifice, to say nothing of artificiality, tends to elicit negative responses.  What could be less honest, less sincere, less natural -- in a word, less real -- than artificiality?  Artifice is what is employed when -- because -- perfection is unattainable.

Hamburger takes the part of Coke here.  Of the academic challenge to the common law -- the challenge of the "learned law" (the "scholarly enterprise that encompassed both the civil and the canon law" (103)), and the response of common lawyers to it, Hamburger writes:

The academic ideals have resurfaced in different times in different ways . . . but they have consistently tended to rest on a potent combination of 'realism' and idealism -- on a dismissive realism about the law of the land and the capacity of judges to decide in accord with it and on a high idealism about rational academic models of human law.  (611-612).

Hamburger unites the strains of artifice in the common law with those of a formalistic approach to law.  It is the artifice and artificiality of the common lawyer's way of approaching the law -- its non-realism and non-naturalism, its quirks, habits, dispositions, and ornamented ways -- that is the distinguishing feature of the common law.  This view of law is inherently defensive, pessimistic about law's (and man's) capacity to reach the heights of the academic ideal.  It recoils from the elimination of mystery and mystique in law in favor of its all too natural, and all too accessible, rationalization.  The common law relies on manner, custom, and artifice to sustain itself in the face of the academic challenge.  It keeps always in view a very different understanding of realism, "not an academic skepticism about the law of the land, but a deeper realism about the inadequate intellect and disposition of men."  (612). 

One of the features of the idea of public (legal) reason that I've always most admired is its aspiration to a self-imposed restraint.  Leave aside for a moment that this type of restraint aims ambitiously (though it disclaims ambition) to achieve commonality or an overlapping consensus in the face of the problem of pluralism -- I am much less interested in that than I am in the very notion that restraint is itself a good thing.  Restraint implies discipline, a distaste for "letting it all hang out" or "doing what comes naturally."  Restraint -- no less in personal deportment than in an institutional setting -- connotes a formal, buttoned-down approach to life and law, one that is always conscious of the niceties and manners of social and professional conduct.  And restraint in the law is likewise artifice in the law --a layered, complicated, formal, and baroque approach. 

The supporters of this view of law seemingly grow fewer in number by the generation, as we have moved from questioning the artificial ideal to ridiculing it in favor of a realism whose pantagruelian hunger gorges on everything in sight -- gluttonous and, so, entirely unrestrained.  Yet the conflict between the real and the artificial in law seems to be a perennial one -- one of those fights where neither side ever claims complete victory.