‘Tis the season for, among other things, lots of food, lots of drink, and legal philosophy. Because it’s always the season for legal philosophy, right? It’s also the season for being lazy. So instead of a serious blog post, here are two passages I’ve recently come across ― one about food, the other about drink, both about jurisprudence.
The first is from a very entertaining piece by A.W.B. Simpson, “Legal Iconoclasts and Legal Ideals”, published way back in 1990 (58 U. Cincinnati L. Rev. 819). Prof. Simpson discusses “iconoclast” idea that law, or the common law at any rate, is just whatever the judges say it is ― and they can always say that it is whatever they like. This idea, which prof. Simpson traces to 1345 ― and which was probably out there earlier than that too, ― was more recently presented by the “critical legal theorists,” (a.k.a. the “crits”) as the claim that law is “inherently indeterminate.” As the crits tell the story, prof. Simpson explains,
indeterminacy springs from the fact that doctrine is neither comprehensive, internally consistent, nor fully directive, nor does it provide in advance for the circumstances in which it can be changed.
And then he delivers the tasty punchline, for the sake of which I’ telling this (admittedly old) story:
I suppose the same could be said of any system of human thought whatsoever. Like cooking. Yet it was, some would think, an understanding of the principles of la cuisine that enabled a chef, in trying conditions, to produce Chicken Marengo. (830)
The drink-related quip I wanted to share belongs to one of the “iconoclasts” whom prof. Simpson describes, Robert Rantoul, Jr., who pronounced, in his capacity as a member of the Massachussetts House of Representatives, a rather prolix “oration” on the occasion of the 1836 Independence Day, in the course of which he had much to say about the common law. This, in particular:
[t]he Common Law is the perfection of human reason―just as alcohol is the perfection of sugar. (38)
Wonderful, isn’t it? Too bad Rantoul did not, in fact, mean it as a compliment! Outdoing Bentham, he argued that, being “unknown” and retroactive, the common law was not law at all―it was not even dog law, but pure venom:
The subtle spirit of the Common Law is Reason double distilled, till what was wholesome and nutritive, becomes rank poison. Reason is sweet and pleasant to the unsophisticated intellect; but this sublimated perversion of Reason bewilders, and perplexes, and plunges its victims into mazes of error. (38)
Well, all that I can say is that Rantoul was obviously missing out, on the joys both of the common law and of fine spirits.
Don’t repeat his mistake!