Shame on the Brits!
posted by Nate Oman
By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you!
I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes shorn of scarlet and fur. And no wigs. (This BBC report shows the justices in their new robes, which at least have the decency to include healthy dollops of gold braid.) Why don’t they just throw out the concept of precedent, adopt the Code Napoleon, and be done with it. Nor, alas, is the rot confined to the top of the judiciary. Through out the UK, it would seem, judicial horse hair and scarlet are one the wane.
American judges and barristers lost their wigs thanks to the wicked influence of Thomas Jefferson. The hypocrite sage of Monticello, of course, was an awful Francophile at a time when being a Francophile meant defending the guillotine. For him, wigs and scarlet were English (and therefore evil), medieval (and therefore evil), and associated with the common law (and therefore evil). In the new Empire of Liberty that he envisioned for America they had no place. I suspect that his hope was that the common law would be out as well, to be replaced by some hideously rationalized Enlightenment code.
In the wake of the election of 1800, Jeffersonianism was ascendant and any hope for proper judicial and legal regalia in the United States died. Blackstone, Coke, and Marshall proved powerful enough to preserve the common law, even if we lost forever is pageantry. Rather Jefferson and his minions replaced it with a spare classicism — Roman looking court houses, plain “republican” robes, etc. — whose aesthetic cannot help but strike a jarring note against the law that it purports to represent. I suppose that as between losing the common law and losing its trappings, America managed to opt for the lesser of too evils. Still, I can’t help but feel the loss.
Why, in the name of all that is holy, however, should the UK Supreme Court abandon them. I realize, of course, that in an enlightened post-modern age a certain amount of national self-loathing is de rigueur. Penance for the sins of empire and all that. Fair enough. But surely at the judicial apex of the birthplace of the common law, one may take a stand for they symbols of tradition and continuity without embarrassment. The press reports cited by Chris suggest that the motivation for this particular judicial outrage was the need to “modernize” the English law (and given that Scotland enjoys its own legal tradition with its own forms of fancy dress, this is ultimately an English issue). This is a silly justification. There is nothing that prevents a barrister with gown and wig from presenting perfectly cogent and modern arguments about the proper treatment of credit derivatives or bank capitalization regulations. Likewise, there is nothing that keeps a judge clad in scarlet and ermine from protecting the rights of oppressed minorities. Indeed, such decisions and arguments gain power and legitimacy from nesting themselves within a physical pageant that celebrates its connection and continuity with the past. A rapidly changing society that tosses an ultimately costless method of retaining some emotive and symbolic stability, in my opinion, makes a foolish decision.
Shame on the Brits!
October 22, 2009 at 7:50 am
Posted in: History of Law, International & Comparative Law, Jurisprudence, Just for Fun, Law Practice, Politics, Weird
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Responses (3)
Patrick S. O'Donnell - October 22, 2009 at 10:06 am
The Confucian dimension (notice I didn’t say ‘Burkean’) of my worldview (which, admittedly, is an inconsistent hodgepodge) finds me in absolutely agreement with you on this one (I was not in favor of the new Supreme Court either, nor many of the changes to the House of Lords for that matter). The English appear to be losing their collective self-confidence as well as a deep appreciation of the function and value of several long-standing traditions. Traditions should indeed be subject to critical examination and creative adaptation but I find it hard to understand the compelling warrant or rationale behind these and other recent changes.
Tuan Samahon - October 22, 2009 at 5:32 pm
This is an interesting change for another reason. C.J. John Marshall adopted subtle changes that consolidated the still relatively new U.S. Supreme Court’s authority, e.g. rejecting seriatim opinions for a definitive opinion of the Court that would speak authoritatively and support the pretense of judicial supremacy. Does that mean, then, that ditching wigs and such is perceived by the U.K. Supreme Court justices as promoting its legitimacy? I was initially inclined to think that losing traditions might diminish the authority previously wielded as law lords. Perhaps the justices’ judgment is that it is better to be up-to-date and thereby be better able to connect with a population — a constituency ? — that can’t relate to the stuffy traditions that OxBridge-types relish?
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