Laughing at the Gods: Great Judges and How They Made the Common Law.

• Author: Van Praagh, Shauna
• Position: Book review

Review of Allure C Hutchinson, Laughing at the Gods: Great Judges and How They Made the Common Law (Cambridge: Cambridge University, Press, 2012), pp 328. ISBN 978-1-107-01726-9

Introduction

Why do judges receive so much attention--whether in law classrooms, in biographical works, or even in our collective psyche? They are not superhuman; they are not the only or even the principal creators of the rules that structure our lives; and they do not explicitly or freely choose the issues about which they have something to say. Indeed, the people whose stories lead them to court are crucial to the work of judges, as are the jurists who frame those stories and articulate the arguments that connect them to sources in law. And yet, as one of my students recently asserted in class, law professors in particular appear to be "seduced" by judges! That seduction is at the very core of Allan Hutchinson's book, Laughing at the Gods: Great Judges and How They Made the Common Law--a book that showcases a deep fascination with judges and the ways in which they affect law and society. (1)

Hutchinson's book reflects a double-pronged preoccupation: first, a preoccupation with "choosing" individuals who satisfy the criteria Hutchinson offers for being included on a shortlist of "great judges", and second, a preoccupation with "musing" as to the contributions of these selected few to the creation and continuity of the common law. This "choosing and musing" project takes very seriously the task of selecting great judges and justifying that selection. At the same time, it promises avenues for ongoing reflection by law students, lawyers, and judges on what it means to participate actively in the content, form, and development of the common law. The book should provoke critical engagement with the notion of "greatness" and with the power of judicial voice and action--and this review essay underscores the importance of asking hard questions along this vein. But, for most readers, the tangible value of the book will resonate through their enjoyment of finding favourite and familiar faces and stories in the book's pages, and of imagining responses to Hutchinson's wide-ranging, immensely readable, and sometimes provocative remarks.

As a long-time law professor and scholar, Hutchinson does appear seduced by the very idea of greatness, by the judge's potential to effect change, and by the personal stories and characters of the individuals who make up his "top eight" list of great judges. But he is not alone. In responding to his invitation to "laugh at the gods", I explore the seriousness with which judges are treated, by Hutchinson himself and by law students, jurists, and law teachers more generally. I do so within a framework structured by three exercises undertaken by law students in the Advanced Common Law Obligations course I teach at McGill. (2) In a course dedicated to examining the form and method of the common law, intertwined with selected substantive private law issues, judges receive careful attention. As illustrated by the exercises, they are named as principal actors in a legal tradition, expected to fulfill the requirements of a complicated job description, and subject to restraint even as they take risks. The students, like the readers of Hutchinson's book, learn that it is crucial to pay attention to judges' individual voices, to understand and appreciate the ways in which judges justify their decisions, and, finally, to enjoy themselves as they imagine conversations among judges across cases, courts, and contexts. (3)

1. Exercise One--"Name Great Judges"

   The first session of "Advanced Common Law Obligations" is devoted to a quiz focused on the key historical, structural, and methodological aspects of the common law. Among questions that touch on writs, law French, the Inns of Court, and the case method as form of legal pedagogy, is the following: "Name three 'great' judges who have contributed to the development of the common law, making sure to include at least one from England and one from the United States." The message is that naming judges, discerning their "greatness", and acknowledging the rich backdrop offered by both the United Kingdom and the United States for assessing their contributions are all projects central to understanding and participating in the common law. The notion of the "great judge" is uniquely bound up in the nature, content, and form of the common law tradition.

   The title of Allan Hutchinson's book, Laughing at the Gods, plays with the notion of tempting the "laughter of the gods"--responsible, according to Francis Bacon, for the ruin of anyone who "undertakes to set himself up as a judge of Truth and Knowledge." (4) The subtitle of the book, Great Judges and How They Made the Common Law, suggests--as does the exercise of naming great judges--that the role of judge is no laughing matter. Indeed, common law judges are treated as if they do and should decide "truth and knowledge". Rather than tempting the laughter of the gods, great judges are perhaps more commonly compared to the gods themselves. And, if we tend to confuse "great judges" and "gods", then Hutchinson suggests that we should explore why and how we do so. The title alone signals the author's enjoyment in creating his book, introduces a tone shaped by the intersection of true respect for greatness and critical, sometimes even irreverent, humour, and situates the act of "laughing at the gods" in the specific context of Anglo-American common law.

   Who are the "great judges of the common law" according to Hutchinson? How does he choose? As he points out in the introductory chapter entitled "In Search of Great Judges", the list will depend on the list maker's view of law itself. For Hutchinson, common law has an "experimental, catch-as-catch-can, and anything-might-go sense about it," (5) and so it is not surprising that, in his view, great judges are bold, creative, and even transformative. But, even as he tries to tie the nature of the common law to the notion of judicial greatness, he turns for true inspiration to a list of individuals who he says are recognized as "great people" in history: Mahatma Gandhi, Elizabeth I, Nelson Mandela, Golda Meir, Martin Luther King Jr., and Albert Einstein. Their individual attitudes, abilities, and visions reflect the courage and commitment that Hutchinson identifies in his chosen eight.

   From the start, Hutchinson's list of six great leaders seems more wide-ranging than his collection of eight "great judges": Lord Mansfield, John Marshall, Oliver Wendell Holmes Jr., Lord Atkin, Lord Denning, Thurgood Marshall, Bertha Wilson, and Albie Sachs. But this is not so surprising given the history, shape, and location of common law. Three of the eight are English, three are American, and the remaining two come from Canada and South Africa, respectively--although Hutchinson could well have included an Australian to round out the principal members of the common law "family". The Canadian is a woman, whose contributions to gender equality are singled out, and one member of the octet is African-American, celebrated in particular for his impact on racial equality. One of the judges makes his mark in the eighteenth century, another in the early part of the nineteenth, and the others span the twentieth century from beginning to end.

   Hutchinson articulates his choice as based primarily on the insistence of his eight judges on "do[ing] things their own way." (6) This should seem a little strange given the necessary shaping function of the common law itself on these individuals and their decision-making. If, however, we follow...