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July 13, 2007
The Tragic End of Wigs
I am deeply saddened to learn that the British judiciary and legal professional will be abandoning wigs and gowns for civil litigation (although the fancy dress will remain -- for the time being -- in criminal trials). There are lots of ways of thinking about this tragedy. For example, one might see it as the creeping triumph of Thomas Jefferson -- the fiend who nixed wigs for the American legal profession. My own sense is that it is a further demystification of the law and a move to conceptualize courts as simply another bureaucracy and the legal profession as just another job. I am opposed.
Of course, since at least Holmes it has be de rigeour for American legal intellectuals to treat the mystification of the law as nothing more than obfuscating nonsense. We are all for hard-headed realism about laws, judges, and lawyers. There is much to be said for this, but it think that it dramatically under estimates the importance of tradition, ritual, and mystique in contributing to judicial legitimacy. I also think that rituals are not simply for the hoi polloi. They also have a salutory effect on those who participate. I've heard more than one judge talk of the emotional and intellectual burden they feel when donning the judicial robe. This is good. I think that our judges are better for frequent, tactile reminders of their special role. I think that the American legal profession is weaker for lack of similar rituals and sacred clothing. Being required to dress up for a certain role is likely to concentrate the mind more fully on the role. Plus, barrister's garb just looks cool.
Shame on the English.
Posted by Nate Oman at July 13, 2007 12:24 PM
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Comments
I wholeheartedly concur. I especially like the phrase, "tactile reminders of their special role."
Placed alongside some of the needless proposed changes in the House of Lords, I'm beginning to think the English have lost all sense of direction, sophrosyne, and cultural self-confidence.
Posted by: Patrick S. O'Donnell at July 13, 2007 01:00 PM
Nate's point is straight Burke ("the decent drapery of life"), and in this instance I agree.
It's like U.S. lawyers going from navy suits to polo shirts in the office. Once you abandon a tradition, it's hard to get it back.
As for contemporary Britain in general, don't get me started.
Posted by: Mike O'Shea at July 13, 2007 01:13 PM
C'mon Nate: We all know the profession already jumped the shark with the abandonment of Law French.
Posted by: guest at July 13, 2007 01:50 PM
I have a special role! I have a special role!
Posted by: Dave at July 13, 2007 01:57 PM
"We all know the profession already jumped the shark with the abandonment of Law French."
Indeed...
Posted by: Nate Oman at July 13, 2007 02:06 PM
Instead of Edmund Burke who, after all, often mystifies tradition (tradition for tradition's sake; i.e., I don't think Burke really helps us appreciate why tradition(s) are of value, or what persuasive reasons might be enlisted on behalf of, say, ritual), I suggest we look at the Confucian (and neo-Confucian) conception of li (holy ritual, social norms, rituals of propriety, social 'grammar,' conventions, etiquette, etc.) by way of understanding what may be at stake here, in other words, for a provocative theory of "ritual" in a rather expansive sense. See, for instance:
Ames, Roger T. and Henry Rosemont, Jr., trans. (with intro.). (1998) The Analects of Confucius: A Philosophical Translation. New York: Ballantine Books.
Chong, Kim-chong. (2007) Early Confucian Ethics. Chicago, IL: Open Court.
Fingarette, Herbert. (1972) Confucius: The Secular as Sacred. New York: Harper Torchbooks.
Goldin, Paul Rakita. (1999) Rituals of the Way: The Philosophy of Xunzi. Chicago, IL: Open Court.
Hall, David L. and Roger T. Ames. (1987) Thinking Through Confucius. Albany, NY: State University of New York Press.
Liu, JeeLoo. (2006) An Introduction to Chinese Philosophy: From Ancient Philosophy to Chinese Buddhism. Malden, MA: Blackwell.
Nylan, Michael. (2001) The Five “Confucian” Classics. New Haven, CT: Yale University Press.
Shun, Kwong-loi and David B. Wong, eds. (2004) Confucian Ethics: A Comparative Study of Self, Autonomy, and Community. Cambridge, UK: Cambridge University Press.
Slingerland, Edward, trans. (2003) Confucius: Analects (with selections from traditional commentaries). Indianapolis, IN: Hackett Publ.
Van Norden, Bryan W., ed. (2002) Confucius and the Analects: New Essays. New York: Oxford University Press.
Posted by: Patrick S. O'Donnell at July 13, 2007 02:59 PM
I approve the wigs for Benthamite reasons--much cheaper to throw those on than invest in nice haircuts/"product".
Moreover, gowns are great for hiding a cheap suit.
Anything to stop positional competition for appearance is all to the good! see
http://www.chas.uchicago.edu/documents/MD0607/Are%
20Positional%20Externalities%20Different.pdf
Posted by: Frank at July 13, 2007 05:23 PM
PS: for those piqued by references to "law french," check out this intro to Ian Shapiro's "Flight from Reality in the Human Sciences":
http://press.princeton.edu/chapters/i8083.pdf
Posted by: Frank at July 13, 2007 05:30 PM
Oh dear. Really? I was hoping that this post was written in jest, but...
Regarding the demystification of the law: Is this really such an awful phenomenon? Drawing a parallel between law and religion (humor me), was the Protestant Reformation such a terrible thing for religion? (Wars and religious sectarianism aside.) Perhaps this is taking an unsophisticated view, but I would argue that the law should be more, not less, accessible.
Moving on...
Regarding the relationship between ceremonial garb and judicial performance: If American judges were made to don a wig and a (more) formal robe, would that make them any less likely to fall asleep in court? Relatedly, did Rehnquist's chevron stripes cause him to bear his role with greater solemnity? (His stripes were inspired by a costume worn in a comic opera about fairies; key word: "comic". Hardly a deferential gesture to the solemnity of one's role as the CJ of the Supreme Court, wouldn't you agree?)
Those seeking to identify remnants of tradition in the U.S. legal system might take solace in the fact that the Solicitor General is still expected to play dress-up before the Supreme Court. Well, then, at least one person can be expected to take his job seriously.
Posted by: LM at July 14, 2007 11:50 PM
